20 N.H. 135 | Superior Court of New Hampshire | 1849
If a plaintiff, in an action of trespass guare clausum, fregit, undertake to describe his close, he must do it correctly, in order that the defendant may be truly apprised of the claim he has to meet, if the title be brought in question. And proof will not be received at the trial, of acts set up as trespasses, not within the limits of the close described. Possession of the land is essential to maintain the action, and is often the only thing in controversy. . There is, therefore, the same reason for describing it which there is for describing land demanded in a writ of entry.
But as in a writ of entry the demandant shall prevail for as much of the premises described as he proves himself entitled to, so it is fully settled by the authorities, that in an action of trespass guare clausum fregit, the plaintiff shall prevail, if he show that he was rightfully in posses
It is a case in which partial proof is admitted, upon the ground that it is sufficient to show that the plaintiffs’ right of action for the act charged as a trespass, was perfect, and it is not defeated by his failure to prove a trespass as extensive as the one he has alleged, whether its extent has been circumscribed by the limits of the title of the plaintiff, or of the acts of the defendant constituting the trespass. In either case the identity as well of the possession disturbed, as of the act complained of, is sufficiently established in proof.
The evidence was therefore sufficient to have entitled the plaintiffs to a verdict, and their exceptions must consequently prevail, the verdict be set aside, and a
Nevj trial granted.
