Austin v. Morse
New York Supreme Court
Error from the Washington common pleas. Austin sued Morse in an action of trespass quare clausum fregit, stating the close to be situate in the town of Easton, without naming the close, or specifying abuttals. The defendant pleaded liberum tenementum, and the plaintiff replied, taking issue upon the plea. The cause was brought to trial, and the principal question between the parties was the ascertainment of a boundary line.
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Error from the Washington common pleas. Austin sued Morse in an action of trespass quare clausum fregit, stating the close to be situate in the town of Easton, without naming the close, or specifying abuttals. The defendant pleaded liberum tenementum, and the plaintiff replied, taking issue upon the plea. The cause was brought to trial, and the principal question between the parties was the ascertainment of a boundary line. After much testimony was given, the common pleas intimated their opinion that the defendant had made out his defence, and advised the plaintiff to submit to a nonsuit,…
1Opinion of the Court
By the Court, Savage, Ch. J.
The state of the pleadings in this case is not that which is best calculated to settle the point in dispute; for, according to the strict rules of law, if the defendant has shewn title to any land in the town of Easton, he has verified his plea. It was decided in Helwis v. Lombe, 6 Mod. 117, that “if a man declare quare clausum generally in such a mile, the defendant may plead liberum tenementum, and if the plaintiff traverse it, it is at his peril; for the defendant, if he has any part of his land in the whole town, shall justify it there; and therefore the better…
2Cited by1 opinion
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