Wilcox v. Conway

115 Mass. 561, 1874 Mass. LEXIS 252

• Court: Massachusetts Supreme Judicial Court
• Decided: September 23, 1874
• Status: Published

Opinion

Ames, J.

In order to maintain an action of trespass quare clausum it should be alleged and proved that the defendant forcibly broke and entered the plaintiff’s close. But the omission of the word “ forcibly ” is a defect which might be cured by an amendment. It is true that in a trial before a justice of the peace a defendant may plead orally, but in order to avail himself of a merely formal defect in the plaintiff’s declaration, he should in some manner make such defect a specific ground of objection. It does not appear that this particular omission was brought to the attention of the court at the trial, and it is too late to take the objection now for the first time.

In each of these actions, the declaration charges trespasses committed on divers days and times between certain dates, and a portion of the time described in one of them is included in the other. There is no legal presumption that both declarations refer to the same trespasses. They are sufficiently identified and distinguished from each other by the evidence that one was the act of one defendant alone, and the other the joint act of the same defendant and two others, besides being distinct in point of time. If they were separate and distinct acts, both actions might well be maintained.

In the bill of exceptions we find no evidence tending to show acquiescence on the part of the plaintiff in the acts of the other party, and therefore the instruction requested in relation to the effect of such acquiescence was properly refused.

Exceptions overruled.