King v. Dunn
New York Supreme Court
Error from the Washington C. P. King sued Dunn in the court below for breaking and entering his close, situate in the town of Argyle, and cutting and carrying away trees. The declaration contained two counts. The first count set out the boundaries of the close as follows : “bounded on the west by lands owned or possessed by James Shannon, on the south by lands, &c.”—giving the name of the owner or occupant on each of the four sides.
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Error from the Washington C. P. King sued Dunn in the court below for breaking and entering his close, situate in the town of Argyle, and cutting and carrying away trees. The declaration contained two counts. The first count set out the boundaries of the close as follows : “bounded on the west by lands owned or possessed by James Shannon, on the south by lands, &c.”—giving the name of the owner or occupant on each of the four sides. The second count was general, giving no boundary. The defendant pleaded first, not guilty to the whole declaration, and then a special plea of liberum tenementum…
1Opinion of the Court
By the Court,
Bronson, J.
The defendant maintained his plea of liberum tenementum to the second count, by proving that he had lands in the town of Argyle, where the trespass was alleged to have been committed. If the plaintiff wished to avoid this consequence, he should either have described the close in the count, or have new assigned setting out the abuttals.'
But the plaintiff was, I think, entitled to a verdict on the first count, notwithstanding the fact that a small part of the .close described in the count was not owned by him, but by a stranger. The court below erred in treating this as…
2Cases cited1 opinion
- Rich v. RichNew York Supreme Court · 1837
3Cited by7 opinions
- Woodman v. NottinghamSupreme Court of New Hampshire · 1870
- Dunckle v. WilesNew York Supreme Court · 1848
- Walsh v. United States Tent & Awning Co.Appellate Court of Illinois · 1910
- Profile & Flume Hotels Co. v. BickfordSupreme Court of New Hampshire · 1903
- Black v. ShawCalifornia Supreme Court · 1862
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