King v. Dunn

21 Wend. 253

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Bronson, J.

The defendant maintained his plea of liberum tenementum to the second count, by proving that he had lands in the town of Argyle, where the trespass was alleged to have been committed. If the plaintiff wished to avoid this consequence, he should either have described the close in the count, or have new assigned setting out the abuttals.'

But the plaintiff was, I think, entitled to a verdict on the first count, notwithstanding the fact that a small part of the .close described in the count was not owned by him, but by a stranger. The court below erred in treating this as a question of variance. There was just such a close or parcel of land as the declaration described; and the true question on the pleadings was, whether the plaintiff was bound to prove title to every part of the close. It was enough that he showed title to that part of the close in which the trespass was committed. And so too of the defendant, although he pleaded that the whole close was his soil and freehold, he would have been entitled to a verdict on showing that he owned the part where the trespass was committed. Stevens v. Whistler, 11 East, 51. Tapley v. Wainright, 5 Barn. & Ald. 395. Rich v. Rich, 16 Wendell, 663.

As the plaintiff has died pending the writ of error, the judgment of reversal may be entered nunc pro tune as of January term, 1836, when the plaintiff was alive.

Judgment reversed.