
    Tomlinson vs. Rizer.
    Xn trespass O. C. F- the defendant took defence for, and located on the I dots, a tract of and called' G C\ •which ' included the tract called T N, on which the trespass was al-1-leged to have been committed, and winch last tract the plaintiif looat ed on the plots; and he also located lot No. 3351; but he did not counter locate the location made by the defendant. The defendant read in evidence the grant of G C, which called to begin at the end of tbe second lin^ of lot No. 3351 . — Held, that it was not necessary for him to produce} the grant of lot Np. 3351, to prove the location of that lot, and the beginning of G C.
    
    The court refused to direct the .fury in an action of trespass .O' C- Ivuifir it way incumbent on the, plaintiff, in order to support bis action, to prove a title to the land1, on which the trespass was a& fegedto be cyounitted, or to pvQie aw actual possession by enclosures, located on theplou»/ '
    Error to Allegany County Court. An action of trespass quare clausum fregit, was brought by the defendant-in error, against the plaintiif in error, for breaking and entering the close of the defendant in error, called Trouble [or Nothing, lying in Allegany county. The defendant in the court below pleaded, 1, Not Guilty, and 2. Justification that locu.s in quo ivas a close ofland called Grate’s Sugar Camp, and thSfreehold of John, Haim, and that the defendant, as his servant, and by his license, entered, &c. general replication and issues were joined. There were other replications to the last plea, which were dumurred to, but as. they were not noticed by the court, they are omitted. A wan ant of resurvey issued, and the lands called Trouble for Nothing and Grate’s Sugar Camp, and the place where the trespass was alleged to have been coni'* •milted, as also lots No. 3350 and No. SS51, were located on the plots returned. The defendant took defence for Grate’s Sugar Camp, as including Trouble for Nothing, to which there was no counter-location made on the plots.
    1. At the trial the defendant read in evidence a grant of the land called Grate’s Sugar Camp, to John liains, on the 1st of March 1800, ‘'beginning at the end of the second Vine of lot No. SS51, and running thence N 27 E 46 perches, S 26 W 90 perches, S 62 W 50 perches, thence by a straight line to the beginning,” &c. The plaintiff then prayed the opinion of the court, and their direction to the jury, that it is incumbent upon the defendant to produce! patents of lots No. 3350 and 3351, to prove the beginning and location of Grate’s Sugar Camp to be correct; to which direction and opinion being given, the defendant objected, and prayed the court to direct the jury, that as the plaintiff has located the lots No. 3350 and 3351, and Grate’s Sugar Camp, upon the plots, including the place where the trespass is located as committed, it is not necessary for the defendant to produce patents for lots No. S350 and S351, to prove the location of those lots, and tlje beginning of Grate’s Sugar Camp. But the county court, [Clagett Ch. J.j refused to give the direction prayed by the defendant; and gave the direction prayed by the plaintiff; The defendant excepted.
    2. The defendant then prayed the opinion of the court, and their direction to the jury, that it is incumbent on the plaintiff, in order to support his action, to prove a title to Trouble for Nothing, or to prove an actual possession by inclosures locaied upon the plots. Which opinion and direction the court refused to give. The defendant excepted. 'Verdict and judgment for the plaintiff, and the defendant brought a writ of error to this court.
    The cause was argued at the last June tena before Folkj Buchanan, Nicholson, and Gantt, J.
    
      Johnson, (Attorney General) and Perry, for the Plaintiff' in error,
    cited Dockery vs Maynard, 1 Harr. & M'Hen. 209. Jarrett vs West, 1 Harr. & Johns. 501.
    
      T. Buchanan argued for the Defendant in error.
    
      Curia adv. vult..
    
   The Court,

at this term, disagreed with the court below in the opinion expressed in the first bill of exceptions, but concurred with them in that expressed in the second bill of exceptions.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED,  