Hooker v. Cummings
New York Supreme Court
THIS was an action of trespass. The declaration contained five counts. The first count charged, that the defendant, m et armis, broke the plaintiff’s close, (in the town of Richland, in the county of Oswego,) covered with water, and did, then and there, fish in the said close, and the fish, to wit, 300 salmon, 300 trout, he. of great value, Sic. then and there found, caught, took, and carried away, he.
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THIS was an action of trespass. The declaration contained five counts. The first count charged, that the defendant, m et armis, broke the plaintiff’s close, (in the town of Richland, in the county of Oswego,) covered with water, and did, then and there, fish in the said close, and the fish, to wit, 300 salmon, 300 trout, he. of great value, Sic. then and there found, caught, took, and carried away, he. The second count charged, that the defendant broke and entered the plaintiff’s several fishery in the river, called Salmon river, situate in Richland, in the county of Oswego, and then and…
1Opinion of the Court
Spencer, Ch. J.,
delivered the opinion of the Court.
The case of Nevins v. Keeler, (6 Johns. Rep. 64.) is decisive, that the second and third pleas are informal. They profess to answer the whole declaration. The defendant should have justified as to one locus in quo, and pleaded not guilty to all but one close. He had no right to narrow the plaintiff’s declaration in the manner attempted; and the plaintiff could not take issue on the allegation that the several closes %were one and the same, and that the fisheries were one and the same. But the real question in the cause is, whether the…
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