
    GENERAL COURT,
    OCTOBER TERM, 1795.
    Joseph Chapline against David Harvey.
    THIS was an action of trespass quare clausum fregit for entering the close of the plaintiff in Washington. county, and carrying away the plaintiff’s fence rails. The defendant pleaded not guilty, and the following case was stated at October term, 1794, for the opinion of the court, to wit:
    It is agreed that the defendant was in possession of a parcel of vacant land in the year 1789, which possession was by actual enclosure under fence, and continued so in possession until October, 1790. On the 5th of May, 1790, the plaintiff obtained a special warrant of survey, and procured a certificate of survey thereon to be duly made and returned, which includes the vacant land and the fence rails situate thereon, so enclosed and held by the defendant as aforesaid. On the' 19th of May, 1790, the plaintiff paid the composition money upon the said certificate for the said land and the fence rails thereon.
    In October, 1790, the defendant, still continuing the possession above stated, removed and took away the fence rails which enclosed the vacant land above mentioned, and relinquished the possession of the said land. On the 15th of February, 1791, the plaintiff obtained a patent of the said land.
    It is admitted that the land above mentioned to be vacant in 1789, and the land in the declaration mentioned, upon which the breaking of the close and other trespasses are charged to have been made, are one and the same, and not different.’ And if the court should be of opinion from the above facts, that the plaintiff’s action in point of law can be supported, then judgment to be entered for the plaintiff for six pence, current money, damages, and costs of suit; if otherwise, then judgment of nonsuit to be entered.
    
      B. Johnson and Key, for the plaintiff.
    Mason, for the defendant.
   The Court

gave judgment, on the ease stated, for the plaintiff.  