22 N.H. 99 | Superior Court of New Hampshire | 1850
The plaintiff’s close is described in his declaration as containing twenty-five acres. But, according to the boundaries given on land of adjoining owners, and on -the road from Dover to Rochester, the description would include the pasture lying next to that road, and the quantity of land would much overrun twenty-five acres. By a well-established rule of construction, boundaries and abuttals control the estimate of quantity, and in this case extend the close to the road, so as to include the pasture. There is, therefore, no variance in this respect between the declaration and the evidence, and the description of the plaintiff’s close is sufficient.
In trespass quare clausum fregit, if the plaintiff sets out the boundaries and abuttals of his close in his declaration, they must be proved as they are laid. But this use does not require perfect accuracy in stating length of lines, points of compass, or other matters descriptive of the boundaries and abuttals given. All the boundaries that are given, must be proved; but the description of the boundaries in the declaration will be sufficient, if it shows, with reasonable certainty, what boundaries are meant. If the proof shows different boundaries from those laid in the declaration, this being matter of description, it will be a fatal variance; because it shows that the close described in the declar
In this case, the controlling parts of the description are the abuttals on the road and on the adjoining owners. Quantity, distances, and points of compass, yield to such actual boundaries, when they are ascertained; and when they are described as lying on the north or on the south of the plaintiff’s land, they are not required to be due north, or due south. This is the reasonable view of the question, and it is sustained by authority. In 2 Rolle’s Abridgment, 678, it is said, “ If a close be described as abutting towards the east, and it proves to be north, inclining to the east, it is sufficient;” and in'Buller’sNisi Prius, 89, the rule is thus stated: “ If an abuttal be assigned towards the east, though it be north, if it incline to the east, it is sufficient.”
The omission of the Court to recapitulate the evidence, is no ground to set aside the verdict. Whether the whole or any part of the evidence shall be stated to the jury, and the manner of stating and explaining it, must be left to the discretion of the judge, according to the nature and circumstances of each case. 3 Chitty’s Practice, 911; Commonwealth v. Childs, 10 Pick. 252.
It would be impossible to lay down positive rules to govern the Court in the exercise of this discretion. Probably no part of a judge’s duty requires greater skill and practical judgment. In many cases it is doubtless highly important that the jury should have the aid which his experience may give, in extracting the leading points, and in arranging and analyzing the evidence. But a full and exact restatement of the evidence, according to the order in which it was given on the stand, would often be injudicious, and more likely to weary and confuse, than to assist the jury. The habit of summing up evidence in this full and formal way has been regarded as characteristic of an indolent and incapable judge, rather than as proof of diligence and ability. Such would seem to be the opinion of Lord Campbell, the present Chief Justice of England. • In his Lives of the Chancellors, vol. 6, pages 136 and 137, he says of Lord Loughborough: “ By the consent of all, he came up to the notion of a consum
In trespass quare clausum the breaking and entering of the plaintiff’s close, is the gist of the action, and the instructions of the Court on this point were clearly correct.
Judgment on the verdict.
