#### *Tribble vs.*Frame.

Trespass,

Case 108.

Error to the Montgomery Circuit; Sieas W. Robbins, *Judge.*

*Instructions. Liberum tenementum.' Novel assignment.*

Declaration in trespass— *guare clausum fregit*— pleas and replications.

Instructions of the court.

It seems íb¡>« on the tri.fl of issues on general replir *530cations to pleas of *libemm tenemm--.*toTwocounts! theoouricannot, in any state of *evi*dence, instruct the jury, that to enable the plaintiff to recover, he must prove two closes anda trespass *da*each.

*529October 9.

*Judge Owsley*

*delivered the*opirn -n of the court.

This is a writ of error brought to reverse a judgment recoveied by Frame in an action of trespass guare *clausum, fregit*which was brought against him in the circuit court by Tribble.

The declaration contains two counts, in neither of which are the abuttals of the close upon which the trespass is charged to have been committed set forth, and to each count the defendant pleaded separately *liberum tenementum.*To each plea the plaintiff replied, and issues to the country were. thereupon joined by the defendant.

After the evidence of each party was through, the court, on the motion of the defendant, instructed the jury, that under the pleadings, to enable the plaintiff to recover in this action, he must shew two distinct closes in the county of Clark, (that being the county in which the closes are described to lie in the declaration,) and also that a ti’espass Was committed on each dose.

It will be observed, that the instruction is not hypothecated upon any opinion which the jury might form the evidence introduced or reüed on by *530the defendant to support either plea, so that we must understand the court, by the instructions, to have from the jury the consideration of that evidence, and decided it sufficient to support the issues ..-or one of them, on the part of the defendant; or assuming the evidence insufficient for that purpose, t0 have .decided, that though neither of the issues* was supported on the part of the defendant, the plaintiff .was not entitled to recover unless he proved that he had as many closes as counts, and that a trespass was committed on each. But whether the one or the other of these alternatives were intended by the court to be decided, the decision is evidently incorrect, and cannot be sustained. If the latter was intended to be decided, the instruction is unquestionably erroneous, because it not only required of the plaintiff, before he could, in the absence of proof on the part of .the defendant,recover, that he should have a good cause of action, but also that he should shew as many causes of actions as there are counts in his declaration; and if the former was intended, the decision is equally erroneous, because, in deciding the, issues to be supported on the part of the defendant, the court must have encroached upon the office of the jury, whose province it is to judge of the credibility and weight of testimony, and decide the facts involved *in the*issues made up by the parties.

On a plea of *liberum tene*dodaration ***of one count, not identify, ing (he *locus in quo,*if the defendant shew title in any close iu the county, the verdict must be for ■him.

But suppose it-were admitted that the defendant had land in the county in which the trespass is charged to have been committed, would the plain-a®-er Pr0°f °f the fact by the defendant, be entitled to recover under the pleadings in this case, without shewing that he had two closes, upon each of which a.trespass was committed.

This.question is one which was also made and decided by the circuit court, and as the cause must be reversed for the error in the instruction of the -court, and the question may possibly be again made upon the return of the cause to that court, it is ■proper.that we should now dispose of it.

If the declaration contained but one count, it is perfectly clear that there could *be no recovery*by *531tlie plaintiff, provided the defendant proved he had a close in the same county of that in which the trespass is alleged to have been committed. The rule applicable to such a case is given by Chitty in his pleadings, 1 vol. page 605, with strict precision and accuracy. “In trespass to real property,” says he, “if the declaration does not state the name or abbuttals of the close &c. with such precision. as to- avoid the possibility of the defendants having a close &c. in the same.parish of a similar discription, and the defendant- has pleaded *liberum*tenementum, without describing the close, the plaintiff should' new assign, and not take issue orí the plea; for if he were, he would fail upon the trial, if the defendant coukl shew that any close in the parish or place stated in the declaration was his freehold.” And in his treatise on evidence, Starkie, vol. *3]*page- 1465, says; “If issue be j oined on the plea of *liberum lenementunr,*the defendant may elect to what parcel-he will-' apply his plea,-and the plaintiff cannot insist on a-trespass in any other parcels without a new assignment.” “And *therefore,”*says- *he, “if*the plaintiff' allege a trespass in his close, situate in the parish of Á. generally, and issue be joined on this plea, the defendant would be entitled to a verdict on proving' that he had any quantity of land, however- small,, within the parish.”

Same rule,however un|ounts maybe, when thep5ea?ffaLe‘ *lum*js pieaded to all.

The correctness of this doctrine' of the law was not contested in argument, but its application to a. case in which the declaration contains more-counts than one, was denied. But if such be the rule applicable to a declaration containing.one- count only, no reason is discerned whv the-same rule should not govern declarations containing several counts, provided the plea to each be of the same sort. If, as remarked by Starkie, the defendant may elect to what parcel he will apply his plea, and thereby, on-proving that he had a close in the same place, defeat a recovery upon a declaration containing but' one Count, it would seem necessarily to follow, that if the declaration contains several counts, both of which are general, the defendant- may also elect to wh at parcel to apply his. plea, and thereby on like, proof defeat a recovery for any one trespass. The *532right to make this election and apply his defence *td>*what parcel he pleases, is an advantage which is gained to the defendant by the *general*pleadings, but which the plaintiff might have prevented by a new assignment* though not by a multiplication of general counts in liis declaration.

An original _ count ideof.i lying a close* or a novel assignment, thus fixing the close, is ■ the only-anode of encountering the defendant’s plea of *liberum tenemenlum,*where he has title to even one parcel of land in the county.

of a novel assigmnent. Numerous general counts *will*not answer the purpose

Sergeant Williams, in treating on the doctrine *oí*new assignments, has, in a very few remarks, presented the subject in a lucid point of view. “It was” says he “anciently the most usual practice in trespass *clausum fregit,*to declare *generally*for breaking the plaintiff 's close at' A. This general mode of declaring put the defendant under a difficulty of knowing in what part of the vill of A, the trespass, which the plaintiff meant by his declaration, was committed. The defendant was therefore permit-ed to plead that the close was his freehold, which he might do without giving it a name, because, as the plaintiff was general in his count, the defendant might be as general in his plea. And if the plaintiff traversed it, he run a great risk; for if the defendant had any part of his land in that viII, the verdict would be for him on that issue. This turned the difficulty upon the plaintiff, and therefore he was almost always driven to a new assignment, in which he assertained the place with proper exactness.” 1. Saun. *299b,*N. *6.*

*It*is therefore not by multiplying counts in his declaration, that the difficulty turned upon him by general pleading in trespass *clausum fregit,*is to he escaped- by the plaintiff, but it is by a new assignment of the trespass charged in his declaration. It is true that a new assignment is in the nature of a dec]arátion, and it may be contended that, as *the*declaration contains two counts, one of which should be considei ed. as equivalent to and answering all the purposes of a new assignment. But were the argument admitted to be sound, the difficulty with the plaintiff would be the same. *For liberum tenementum*is pleaded separately to each count, and though either be considered as a new assignment, as both are general, it was as much incumbent upon the plaintiff after plea, to new assign as to the one ¡count *533as the other, and as he failed to do so, and took issue on the pleas, the samé difficulty was turned upon him as if there had been but one count. Such would indeed be the consequence, we apprehend, of an issue taken on a plea of *liberum tenementum*put in to a new assignment, if the place be not therein ascertained with proper exactness.

Defendant plead to a m^assign-m«nt as to the original aia,^ tiff may make a. assignment,

Leave towitfidraw replication and 110 v el asSlgn*

*Monroe*for plaintiff; *Jrhmson*for defendant.

The defendant, it is said, must plead to a new assignment in the same manner as to a declaration; and if the plea be such as would require a new assign-merit, if pleaded to a declaration, the plaintiff, it. is also said, must new assign in this case. 1 Saun. 299c. N. 6.

In whatever- point *oí*view, therefore, the counts in the declaration are considered, as they are both general, and *liberum tenementum*is pleaded to eac)l, the plaintiff will not be entitled to recover unless he proves more than one close and trespass, provided the defendant shews that he is entitled to land in the same county in which the trespass is charged fO have been committed.

The judgment must, however, for the error in the instruction of the court, which has been noticed, be reversed with cost, the cause remanded to the court below, and if the plaintiff shall fail to obtain le&ve of the court and withdraw his replications to the pleas, or one of them, and new assign, a new trial of the issues must be had, and such further proceedings there had as may not be inconsistent with the principles of this opinion.