Howard v. Mitchell

<p>This was an action of trespass for breaking and entering the plaintiff’s close, and holding her out of the possession thereof from January 1, 1811, until October 23, 1815. The defendant pleaded in abatement, that one Hannah James was co-tenant with the plaintiff of the locus in quo, and that she, the plaintiff, has no title therein, except as tenant in common with the said Hannah, on which issue was joined.</p> <p>At the trial of this issue, before Wilde, J., at the last October term in Plymouth, the defendant offered evidence * to prove, and did prove, to the satisfaction of the jury, that the said Hannah was co-tenant with the plaintiff, as alleged in the plea.</p> <p>But the plaintiff objected to the admission of this evidence, on the ground that the defendant was by law estopped to prove that the said Hannah was tenant in common with the plaintiff, as the plaintiff had before sued the said Mitchell in a writ of entry for the same land described in her present writ, in which she claimed the same as sole proprietor thereof, and recoveied judgment accordingly ; a copy of which judgment was ready to be produced.</p> <p>But the judge overruled the objection, and the jury returned a verdict for the defendant. If, in the opinion of the Court, this evidence ought not to have been received, the verdict was to be set aside, and a nfew trial granted ; otherwise, judgment was to be rendered on the verdict.</p>