
    S. Tribble, Sr. vs. W. Frame.
    Trespass. Case 177.
    October 24
    'See case.
    Erior to tbe M ntgom try Circuit; Robbins Judge.
    Trespass, action of.
    
    
      Monroe and Hoggin, for plaintiffs; Hanson, for defendant.
   Chief Justice Robertson

delivered the opinion of the court.

Samcer Tribble, Sr. sued Win, Frame, Sr. in trespass quare clausum Jrigit, for the entry described in the case of Tribble et al. vs. B. Frame, just decided. The cáse was once before in this court. See VII Mon. 529.

After it was remanded, new assignments were made, and the parties pleaded until they concluded on the sing’e point of possession in fact, at the time of the alleged trespass. Tribble averring that he was in the actual possession, and Frame traversing that averment. However irregular the pleading or informal its issue may be, the issue was material. And, therefore, if the facts, (the same as those detailed in Tribble et al. vs. B. Frame, supra) had justified the verdict and judgment obtained by the defendant, Tribble would have no just cause for complaining. But, as already decided, the proof did not, in onr opinion, authorize the deduction that Tribble was not in the actual and exclusive possession when Frame made the entry for which this suit was brought.

Wherefore, the judgment must be reversed, and the cause remanded for a new trial.  