#### *John*Hahn, Appellant, *v.*Henry Ritter, Appellee.

APPEAL PROM 'ST: CLAIR.

It ia ¡i general- rule ¡fraction's -for tñrt"a;.'tliát hikttCrs in discharge ¿r.justi¿'catión.of the alledged tort, must be' specially pleaded, and cannot be given' in evidence under tbégeneral'issue.' ' ....... ....

In action's of trespass;-aAormer recovery itiuat' be specially pleadedj and cannot be'insisted upon under the plea of not guilty' .

On the 7th of- Juné, 1849, plaintiff below,'filed his declaration in trespass (luare'ddmhm'f'regit, againstdefendañt'belbt^", contain-' ing two counts.

1st count charges, that defendant on the 1st day of June, 1845, and on divers other days between thht day and the commencement of this action, broke the close of plaintiff, &c., broke down the fence and erected buildings, &c.

2d count, charges that on the 1st day of June,, A. D. 184,8, and'at' divers other times, from that' time until the commence-, xnent- ofitliis action,'Deft'broke the close of plaintiff,"&c. '

Defendant filedffhree- pleas; '

' 1st. '"'Gfenetál'-issue/ '

2d. That-plaintiff as to imy trespass prior'to the 21st day of" March;-1848;'(when1 the first'action whs commenced,) *áctio non,'*becaüSé of:'-the'committing offthe said Supposed'trespass,"plain- " tiff sited !Mt& for-'the shrhe'ih-trespass'" and defendant was acquit*-' ted.

8d. *■Idbei'um tmbmenlurri. "'*

Plaintiff joined issue ofi-first plea.'

*83Replied to second, that the trespasses in the *first*count mentioned, are not the same, for which judgment was obtained.

Replied to third plea by general traverse.

The case upon these issues being submitted to the jury, they found a general verdict of not guilty for the defendant.

Plaintiff moved for a new trial, which motion was overruled, and judgment given for costs in favor of defendant.

The cause was heard before" Underwood, Judge, and a jury, at April Term, 1850.

The plaintiff below prayed this appeal, and assigned for error, that judgment was for the defendant That the Court erred in giving instructions, and in overruling the motion for a new trial. That the Court erred in submitting the issue arising on the second plea, to the jury.

G. Koeker for Appellant.

The evidence not only preponderated in favor of the pltff, but was all in his favor. The jury mistook the law and the facts of the case, and the Court will give a new trial in such a case. 11 Ill. Rep., 142.

The first instruction was clearly erroneous, because it presented to the jury a question of fact, as to whether the same trespasses were complained of in the same suit between the same parties; and *one of*laiu, as to whether the title was distinctly put in issue at the former trial This .latter question, was to be collected from the legal character of the pleadings, and was a question for the Court to decide. In an action of trespass *quare clausum*fregit, neither the general issue, nor *liberum tenementum,*puts the title to the freehold in issue.

In order to create a bar, in an action *quare clausum fregit,*by plea of former acquittal, an issue must have been taken and found upon a traverse of a precise fact, *material*to the right in question. 8 East., 2d. of new edition, 174 & 8, 182, notes; 15Pick-ering, 276; 4 Conn., 276; 5 Conn., 127; 3 Wend., 36, 35, 38, 40; 8 Wend., 20, 23, 24, 25; 2 Gilman, 355; 6 Price, 146.

3. The second instruction, as well as the first, is erroneous, because they contain at best mere abstractions; had not á particle of testimony to rest upon, and were eminently calculated to mislead.

*84As to the second instruction in particular, the mere agreement would be void under the Statute of Frauds. 2d Gilm., 423. Instructions entirely abstract are erroneous. 1 Dana, 35 & 273; III, U. S. D., 568, §485, §504; 3 A. K. Marshall, 86.

G. Trumbull for Appellee.

An agreement by parol, for the settlement of a boundary line, is effectual, and not liable to any objection on the score of the Statute of frauds and perjuries. Jackson *v.*Dysling, 199, 200; Boyd’s lessee *v.*Graves *et al.*4 Cond. R., 525; 4 Philips Ev., 232; 12 Wend., 130; Law Library, vol. *38,*top p. 65; Crowell *v.*Mangles, *2 Gil., 423.*That the award is conclusive; Doe &c., *v.*Roper, 2 East., 23; Jackson *v.*Gager, 5 Cow., 383, 387; 4 Phil. on Ev. 232, and cases there cited; Law Library, vol. 38, p. 338, 342.

The defendant under the general issue may show title in himself. 2 Greenleaf’s Ev. p. 583, 8 T. R,, 403.

When a former recovery is given in evidence, it is equally conclusive in its effect, as if it were pleaded by way of estoppel. 1 Greenleaf’s Ev. 635 and note, and p. 636 ; 10 Wend., 82, 84; 4 Phil. Ev. p. 31, 32, up to 35. Such is the rule in Virginia and Maryland. Brockway *v.*Kinney, 2 John., 210; Gardner *v.*Buckbee, 3 Cow., 127; Shafer *v.*Stonebreaker, 4 Gill. & John., 345; 7 Cranch, 565; 8 Wend., 21, 43, 45. To show that same matter was in issue in both cases, 5 Conn., 550.

A judgment will not be reversed, because the Court has given a mere abstract legal proposition, or because the jury found against the weight of evidence. Corbin *v.*Shearer, 2 Gil., 483; Pate *v.*the People, ibid, 661; Granger *v.*Warrington, ibid, 310; Bates *et al. v.*Bulkley, 2 Gil., 394.

Ancient reputation and possession, in regard to boundaries of streets in a town, are entitled to more respect in deciding on the boundaries of lots, than any experimental survey, that may afterwards be made. Ralston *v.*Miller, 3 Rand., 44.

Treat, C. J.

In March, 1848, Hahn brought an action of trespass *quave clausum fregit,*against Ritter. The latter pleaded not guilty, and *liberum tenementum.*The case resulted in a ver*85diet and judgment in favor of Ritter. In June, 1849, Hahn brought another action for trespass on the same premises. The declaration contained two counts; in the first, the acts complained of were laid as committed before the first action was commenced; in the second, as committed after the bringing of that action, Ritter pleaded *liberum tenementwm*to both counts, the former recovery to the first count, and not guilty to the second count. The proceedings in the former action were read in evidence on the trial. The Court, at the request of Ritter, charged the jury, “that if they believe from the evidence, that the former suit was brought for the same identical trespass, for which this action is brought, and that the title to the land was then distinctly put in issue by the parties, they must find for the defendant.” The verdict and judgment were for Ritter, and Hahn brings the case into this Court.

It is a general rule in relation to actions for torts, that matters in discharge or justification of the action, must be specially pleaded, and cannot be given in evidence under the general issue. A former adjudication of the same cause of action, falls directly within this principle. It is distinctly held in the action of trespass, that a former recovery must be specially pleaded, and cannot be insisted upon under the plea of not guilty. 1 Chitty’s Pl., 10th Am. Ed., 506; Coles *v.*Carter, 6 Cowen, 691. Apply this rule to the present case, and the instruction was clearly erroneous. Ritter only relied oh the former adjudication, as a bar to a recovery on the first count of the declaration. The proceedings in the first action, were only admissible in evidence to sustain the plea to that count. The jury had no right to take them into consideration, in determining the issues on the second count. The instruction should therefore, have been restricted to the first count. It was erroneous, when applied to the whole declaration. But, if specially pleaded to both counts, the recovery in the first action, constituted no defence to the acts committed after that action was commenced. The finding, in that case, was general. It may have been for the defendant on the issue of not guilty. But,- if on the other issue, it did not necessarily determine the question of title' to the close, further than at the time of the commission of the acts complained of. The plea of *liberum tenementumj*in the former action, simply alledged that the *locus in quo*was the close of the defendant. It may have been Ms close when *86the trespass in that suit was committed, and yet his rights therein may have wholly determined before the suit was tried. The plaintiff may have had no interest whatever in the premises, prior to the bringing of the first action, and still have acquired an estate in fee simple, before the commission of the second trespass.

The judgment of the Circuit Courtis reversed, with costs, and the cause remanded for further proceedings.

*Judgment reversed.*