REPORTS OF CASES ARGUED AND DETERMINED IN The Courts of Exchequer, AND Exchequer Chamber. TRINITY TERM, 4 VICTORIÆ. SMITH V. ROYSTON. TRESPASS for breaking and entering a close of the plaintiff, called the Buck Leap, in the county of Derby, and erecting a building thereon, and keeping and continuing the same so erected thereon, &c.- Plea, that the close in which &c., was and is the close, soil, and freehold of the defendant.-Issue thereon. At the trial before Lord Abinger, C. B., at the last assizes for the county of Derby, it appeared that the Buck Leap was a slip of land, about twelve feet in width, lying outside the hedge of the plaintiff's land, and not divided by any fence from a field of the defendant's which immediately adjoined it. The plaintiff proved acts of ownership exercised by him over the Buck Leap, to the extent of about four feet from his hedge. The building erected by the defendant was not within that limit, but was just within the distance of twelve feet from the plaintiff's hedge and the defendant proved acts of ownership on that part of the land upon which the building was VOL. VIII. C C M. W. 1841. SMITH V. Exch. of Pleas, erected. The Lord Chief Baron, in summing up, told the jury that the defendant was not bound, in support of his plea of soil and freehold, to prove that the whole of the Buck Leap was his property, but that he was entitled to a verdict if he proved that that portion of it in which the alleged trespass was committed was his. The jury having found a verdict for the defendant, ROYSTON. Balguy, in Easter Term, obtained a rule nisi for a new trial, on the ground of misdirection. In the same term, Whitehurst and Gale shewed cause.-The question in the cause, upon this issue, was, whether the identical spot on which the building was erected was or was not the soil and freehold of the defendant, and he was not bound to prove that the whole of the close named in the declaration belonged to him; he was entitled to succeed if he shewed himself entitled to that part of it on which the trespass was committed; and it is immaterial whether the surrounding land, called the Buck Leap, was the plaintiff's or not. The leading case on this subject is that of Cocker v. Crompton (a), which decided that where a plaintiff in trespass names the close in his declaration, and the defendant pleads liberum tenementum generally, without giving any further description of the close, the plaintiff is not bound to new assign, but may recover on proof of a trespass in any close of his bearing the name given in the declaration, although the defendant have also a close in the same parish known by the same name. Take the converse of that case-suppose the plaintiff had two Buck Leaps in this parish, and proved a trespass in the close in question; could he have defeated the defendant by proving his title to the other? And the question is the same, whether there be two closes of the same name, divided by visible fences, or an open field divided only by (a) 1 B. & Cr. 489; 2 D. & R. 719. 1841. SMITH V. ROYSTON. an ideal line. The question is, whose is the spot where the Exch. of Pleas, trespass was committed?—that is "the close in which, &c." If the plaintiff denies that the place justified is that wherein the trespass was committed, he should new assign. [Alderson, B.-The whole question is, whether the plea necessarily means that the defendant had a right to the whole Buck Leap. According to your argument, your case is that the defendant never did break and enter the plaintiff's close called the Buck Leap at all.] The defendant could plead no other plea than this, admitting the plaintiff's possession. That of which the plaintiff is in rightful, and that of which he is in wrongful possession, goes by the common name of Buck Leap. The plea of not guilty would only have put in issue the breaking and entering a close of the same name with that in the declaration : it would not have denied the plaintiff's possession. [Lord Abinger, C. B.-And you would say, that if you had pleaded not possessed, it might as well be argued that that applied to the whole, as your present plea.] Yes. [Alderson, B.-Suppose the plaintiff had described the close by abuttals is not the name, with the evidence, equivalent to abuttals? Do not you undertake to prove that the whole is yours, the description of which by name you accept, it being hereafter to be proved what is its extent?] Where it is described by abuttals, it has no attribute common to anything beyond the metes and bounds; but even then, if the place of the trespass could be ascertained, it is submitted that the defendant would not be bound to prove the whole to be his soil and freehold: and the same holds where it is described by name: Cooke v. Jackson (a). In Tapley v. Wainwright (b), it was alleged in the declaration that "the said closes in which &c.," for twenty years and more, had been separated from the residue of a waste, and enjoyed in severalty; and it was held that this allegation (b) 5 B. & Adol. 395; 2 Nev. & M. 697. (a) 9 D. & R. 495. Exch. of Pleas, was divisible, and was satisfied by proof that any part of 1841. SMITH v. ROYSTON. the closes, in which the trespasses were committed, had been so inclosed for that period. If that be the rule of construction applied by the Court to the declaration, the defendant also must so understand it; and therefore, when the defendant pleaded liberum tenementum, he must have assumed the plaintiff to apply the name Buck Leap only to the part on which the trespass is committed. Where the close is set out by abuttals, and a plea of leave and license pleaded, if there were any excess of the license, by going on a different part, the plaintiff must new assign, otherwise the defendant would succeed by proof of a license over a single acre: Ditcham v. Bond (a). The case of Hawke v. Bacon (b) must be taken to have been overruled by Tapley v. Wainwright, and Richards v. Peake (c). In the latter case Abbott, C. J., says "The words, the closes in which, &c., in the declaration mentioned, confine that allegation to the spot where the trespass was committed; then it becomes a question of fact whether the trespass was committed in that part of Burgey Cleave Garden which had been inclosed and enjoyed in severalty." Stevens v. Whistler (d is to the same effect. And in Bassett v. Mitchell (e), where the justification was, that the close in which &c., was part of an allotment of six acres, and it appeared that the close, which was set out by abuttals, was not all within the allotment, but the part wherein the trespass occurred was, it was held that the justification was made out. That case is expressly in point for the defendant. Balguy and N. R. Carke, contrà.-If the defendant chose to plead liberum tenementum, having in reality a title to part only of the close described by name in the declaration, (a) 3 Camp. 524. (b) 2 Taunt. 156. (c) 2 B. & Cr. 918; 4 D. & R. 572. (d) 11 East, 51. 1841. SMITH บ. ROYSTON. he ought in his plea to have set out by metes and bounds Exch. of Pleas, the part claimed by him, and to have alleged that to be the place in which the supposed trespass was committed. Not having done so, he must be taken to assert a title to the whole of the close named in the declaration. The case of Tapley v. Wainwright is no authority for the defendant : it only proceeded upon the established rule, that the plaintiff may prove a trespass in any part of the close mentioned in the declaration. In Bassett v. Mitchell, the question was different from the present. If this had been the case of two closes both called the Buck Leap, the case of Cocker v. Crompton is a distinct authority that the defendant must have set out his close by metes and bounds; and the same rule must equally apply where each party is entitled to a part of one close bearing the same name. upon this evidence the defendant is entitled to succeed, this injustice will follow, that the record will hereafter be evidence of the defendant's title to the whole of the close called the Buck Leap. Cur. adv. vult. The judgment of the Court was now delivered by If ALDERSON, B.-This was an application made by Mr. Balguy for a new trial, in a case tried before Lord Abinger, at the last assizes for the county of Warwick, and which was argued in the course of the last term before Lord Abinger, my Brother Rolfe, and myself. It was an action of trespass for breaking and entering the close of the plaintiff, called the Buck Leap, and building thereon. The only plea of the defendant upon the record was that the close in which &c., was the soil and freehold of the defendant. Upon this plea issue was joined. It must be taken as a fact for the purposes of the present motion, that the close called the Buck Leap was a strip of ground comprising a breadth of about twelve feet, and lying outside the |