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6 Johns. 63

Nevins v. Keeler

New York Supreme Court

Decided May 15, 1810

New York Supreme Court · decided 1810-05-15

THIS was an action of trespass quare clausum Jr egit. The declaration stated, that the defendant, on the 10th January, 1809, broke and entered the close of the subscriber, in, &c. and trod down his grass; and also, on the 25th December, 1807, broke and entered another close, in the same town, and trod down the grass, and carried away the timber; and also, on the 25th June, 1807, broke and entered another close, in the same town, and destroyed the grass; and that this last…

Cited by 2 later decisions — most recently December 1847

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1810-05-15

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Per Curiam

¶1The plaintiff has declared for several trespasses, done at divers places, and at different times. This is a very usual way of declaring; and the defendant was bound, by his special plea, to answer the whole declaration, and to hit every trespass, since the plea begins and professes to be an answer to the whole. (1 Salk. 179. 1 Saund. 28, note 3.) But he has' only justified as to one locus in quos and it is no answer to the other trespasses, to say, that they referred to the same close. He should have pleaded not guilty as to all but one close. The plaintiff alleged trespasses in distinct places,- and he could not reply to the plea, but by saying merely, that the places wére several and distinct. This was all that he could say, so far as respects two of the trespasses charged ; and this would be tendering an immaterial issue, assuming them to be separate closes; and there is, then, no answer to the trespass. The defendant, if he had followed the established precedents, should have set up his justification, as to all the closes, or he should have denied the trespass as to all the closes but one, and justified his entry as to that one. This is the practice when the defendant pleads, as he does here, liberum tenementum. As- it is, we must consider the plea as beginning -with an answer to the *65whole declaration, and as being, in fact, but an answer tp part, and so is bad.

¶2Judgment for the plaintiff, with liberty to the defendant to amend on the usual terms.

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