Ellice v. Boyer
New York Supreme Court
This was an action of trespass quare clausum fregit, tried at the Herkimer circuit, before the Hon. Nathan Williams, one of the circuit judges. The suit was originally commenced before a justice, the defendant pleaded title, the plaintiff declared in the common pleas, and the cause was removed into this court by certiorari.
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This was an action of trespass quare clausum fregit, tried at the Herkimer circuit, before the Hon. Nathan Williams, one of the circuit judges. The suit was originally commenced before a justice, the defendant pleaded title, the plaintiff declared in the common pleas, and the cause was removed into this court by certiorari. The declaration charges the entry upon a certain close, lands and premises, situate in the town of Herkimer, in the county, &c. without naming the close or giving abuttals. The defendant pleads liberum tenementum, and the plaintiff takes issue. On the trial of the cause,…
1Opinion of the Court
By the Court, Nelson, J.
The proof did not support the plea of liberum tenementum, 1 Chitty, 606, and the cases there cited; but it is said that it shewed title out of the plaintiff, which, it is alleged, constitutes a good defence under the proviso in the ninth section of the fifty dollar act, Laws of 1824, p. 283, which authorizes a defendant, notwithstanding the plea of title, to shew on the trial that the plaintiff had not possession of, or title to the premises at the time when the cause of action accrued. When the close upon which the trespass is committed is not described by metes and…
2Cited by5 opinions
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