Judge v. Cloud

15 S.C.L. 235

• Court: Court of Appeals of South Carolina
• Decided: June 15, 1827
• Status: Published

Opinion

Curia per

Colcock, J.

The rule referred to by the presiding judge has no application to the action of trespass quare clausum fregit. It was intended, as it expresses, to apply to those actions which are brought to try the titles to lands, and by which the rights of the parties are to be definitively settled. There is no doubt that the defendant had aright to go into the defence which he had set up. The purpose for which the 83rd rule was intended, was to prevent a repetition of suits, which frequently occurred before our late decisions, when the subject of possession was not so defined as to enable a jury to point it out by their verdict; and if the defendant depended on his possession alone a verdict for him could not define the boundaries of his right, and thus it often happened a second suit was commenced. But as one in possession is now permitted to claim to the extent of the boundaries actually made, or to those of any written claim, we cannot anticipate many cases in which the possessor will be confined to the mere spot on which he lives, or on which he cultivates. There is therefore, no further necessity for the rule, and it may be considered as abolished.

New trial granted.