5 N.H. 317 | Superior Court of New Hampshire | 1831
delivered the opinion of the court.
In trespass, de bonis asportatis, it is a good plea that the defendant, long before, and at the time, was lawfully possessed of a close, and that the goods were wrongfully upon the close incumbering it. 2 Chitty’s Pl. 547, and 545; 1 East, 216 ; 1 Chitty’s Pl. 496; Com. Dig. Pleader, 3 M 26, and C 41.
But in this Case, an objection is taken to the plea. The action is in both counts simply trespass de bonis asportatis. In the second count the goods are alleged, very unnecessarily, to have been taken in a close, which is particularly described. But the injury is not local; and the place laid in the declaration is wholly immaterial. The wrong of which the plaintiff complains is the taking and carrying away of his goods; and although the place where they were taken is particularly described, yet as this is wholly immaterial, it may be considered as surplusage, or mere matter of venue. 11 East, 226, Jeffries v. Duncombe ; 3 Starkie’s Ev. 1569—1576.
The defendants in their plea, allege, that the goods, when taken, were in their close, which they particularly describe, and that because they were there incumbering the same close, they removed thorn, which they aver to be the same trespass supposed in the declaration ; but they have not traversed the place mentioned in the declaration, and this omission, it is contended, is a defect in
It is, therefore, unnecessary to consider what would have been, in this state of the proceedings, the effect of this exception, had it been well founded.
But a new trial is claimed in this case, on the ground that the jury were misdirected. The objection is, that they were in substance, instructed, that if they found the spot where the boards were, to be the land of the Wad-leighs, the defendants were entitled to a verdict, whether the Wadleighs owned the rest of the close, described in the plea, or not.
It may be conceded, that the defendants were bound to prove that there was such a close as they described in their plea, and that the boards were within that close.
They claimed a right to remove the boards because they were incumbering a particular close, the abuttals of which are stated ; and it may be conceded, that if they had failed to show that there was such a close as they had described, or that the boards were within that close, in either case they would have failed to sustain their plea by their proof.
But it by no means follows from this, that the defendants were bound to show a title in the Wadleighs to the whole close. It is well settled, that if the plaintiff in trespass, quare clausum fregit, set out the abuttals of the close, he must in evidence show all the abuttals alleged. But if, after having shown the abuttals of the close, he show a title to only a part of it, and a trespass within that part, he is entitled to a verdict. Puller’s N. P. 89; Yelverton,
The plaintiff, in trespass, guare clausum fregit, must show the abuttals of his close, because, to maintain his action, he must show a trespass done within the limits of the close described. 5 Pick. 230, White v. Moseley.
But having shown the abutments of the close, it is enough to prove a trespass in any part of the close to which he can show a title.
The rule which requires proof of the abuttals of the close in such a case, is not at all inconsistent with the rule which admits partial proof of title to the close.
In this case it appears that the plaintiff and the Wad-leighs owned adjoining closes, but there was a dispute as to the place where the true line between them was. The plaintiff placed his boards upon land claimed by the Wad-leighs, and the defendants removed them. For this the plaintiff brought his action. The defendants in their plea described the close of the Wadleighs according to their claim, and alleged the boards to have been within that close. At the trial, the title to part of the close described in the plea, lying next to the plaintiff’s close, was in dispute, and instead of submitting it to the jury to say whether all the land in dispute was the land of the Wadleighs, it was submitted to them to say, whether the place where the boards lay was the land of the Wadleighs.
We are not aware of any principle on which the objection to the direction given to the jury can be sustained. Starkie, after examining at large the cases where partial proof is sufficient, says, the general result of these principles and inferences seems to be, that in case of redundant allegations it is sufficient to prove part of what is alleged according to its legal effect; provided, that that which is alleged, but not proved, be neither essential to the charge or claim, nor describe or limit that which is essential, and provided, also, that the facts proved be alone sufficient to support the charge or claim. 3 Starkie’s Ev. 1528-1533.
Judgment on the verdict.
