
    John Ropps versus Benjamin Barker et al.
    
    In trespass quare clausum fregit, the jury were instructed, that if they had “ any reasonable doubt95 of a particular fact necessary to show a breach of the plaintiff’s close, their verdict must be for the defendant, and the jury returned a verdict that the evidence was not sufficient to prove to them “ beyond a doubt,” that there was a breach; it was held, that the instruction was well enough, and that this finding might be turned into a general verdict of not guilty, the jury affirming the verdict in that form.
    Upon the return of a verdict the court are not obliged, at the request of a party, to poll the jury; if the jury affirm the verdict in the usual manner, it is sufficient.
    A grants part of a lot of land to B, bounding such part on a straight line between two monuments, and takes a stipulation, that a fence standing partly on the line and partly on the land conveyed, shall still belong to the grantor; he afterwards grants the rest of the lot to C, bounding it on the same straight line. Held, that no right passed to C, in that part of the fence which stood ou the land of B.
    Where in trespass for breaking the plaintiff’s close and carrying away his chattels, the declaration does not contain a count for only taking the chattels, the plaintiff <annot recover for taking them, unless he proves a breach of the close.
    This was an action of trespass for breaking the plaintiff’s, close and carrying away fifty lengths of his fence. The declaration contained only one count. The defendants pleaded severally the general issue, which was joined. A trial was had before Williams J. in the Court of Common Pleas.
    
      The plaintiff, to prove his title to the close and fence, reac¡ in evidence a deed from Bourne, one of the defendants, to Joscelyn and Howard, dated March 8, 1824, conveying to them his homestead farm (comprehending the close) and describing it as bounded “ westerly on W. White.” Also a deed from Joscelyn and Howard, dated January 10, 1825, conveying the close to the plaintiff and referring to the former deed for boundaries. To show the true course of the plaintiff’s westerly line, he read in evidence a deed, dated in 1823, from Bourne to White, of the adjoining lot of land. Ia that deed White’s easterly line, adjoining the plaintiff’s close, is described as running from a stake and stones in E. Phillips’s corner, in a straight course, to the corner first mentioned in the deed, without referring to any other visible monument upon or near the line. The plaintiff further proved, that at the time of making the deed to White, the fence in question was standing ; that it extended from the stake and stones in Phillips’s corner to the other corner of the plaintiff’s and White’s land; that the ends of the fence were exactly or very nearly coincident with the plaintiff’s line, but that it deviated from a straight course, so that at its greatest distance it was fifteen feet from the plaintiff’s line ; and that it was the only fence which protected the plaintiff’s land on that side.
    It also appeared in evidence, that at the time of making the deed to White, Bourne took a stipulation from White, that the whole of the fence should continue to be the property of Bourne, notwithstanding the deed, and although the greater part of the fence stood on White’s land.
    The fence continued to protect the plaintiff’s close, until May 1825, when the defendants carried away the greater part of it.
    The judge instructed the jury, that the plaintiff had no right to that part of the fence which stood on the westerly side of the straight line mentioned in the deed to White ; that he had a right to that part which stood within the limits of his own land or on the line thereof; that if the defendants took away any part so belonging to the plaintiff, it was a breach of his close, for which he was entitled to recover damages in this action, but that the burden of proof was on the plaintiff, and if they were not satisfied of this fact beyond a reasonable doubt, their verdict must be for the defendants.
    
      Oct 24th
    
    The jury then retired, and at the opening of the court after an adjournment, they delivered in a sealed verdict as follows:—“ The evidence adduced by the plaintiff, &c. is not sufficient to prove to the jury beyond a doubt, that there was a breach made in the plaintiff’s close.” The judge being of opinion, that under the above instructions, this was a verdict for the defendants, directed a general verdict of not guilty to be drawn, and he stated to the jury, that if it was their intention to find a verdict for the defendants, it must, in order to conform to the pleadings, be, that the defendants are not guilty; but if such was not their intention, they had in fact found no verdict. The verdict of not guilty was then presented to the foreman, with instructions, if he was satisfied with it in that form, to sign it; which he did. The plaintiff’s counsel requested that the jury might be polled, in order to ascertain whether they agreed to the verdict in its present form. The jurors were not inquired of separately and individually, whether they agreed to the verdict, but it was distinctly read to them and affirmed by them collectively, in the usual manner, without objection on their part, and was recorded.
    To these instructions and proceedings the plaintiff filed his exceptions.
    
      Wood and Eddy,
    
    in support of the exceptions, contended, that the fence passed to the plaintiff as appurtenant to the farm. It was one continuous thing, and the deviation of fifteen feet from the boundary line was of no consequence. If the grantor had died before the conveyance, the fence would have gone to his heir, and not to his executor. Archer v. Bennet, 1 Sid. 211; Browne v. Nichols, Moore, 682; Com. Dig. Grant, E 9; 3 Dane’s Abr. 154; Shep. Touch. 89, 90; Grant v. Chase, 17 Mass. R. 447; Whalley v. Thompson, 1 Bos. & Pul. 375. The plaintiff was tenant by sufferance of the land between the boundary line and the fence, and so may maintain trespass against the defendants for entering on that land. Com. Dig. Trespass, B 1 ; Gra
      
      ham v. Peat, 1 East, 244; 3 Stark. Ev. 1436 ; Bull. N. P. 85. If there was any right in the defendants, it was not such as could be given in evidence under the general issue. 3 Stark. Ev. 1462; Bull. N. P. 90.
    If a breach of the plaintiff’s close is not proved, still the action is maintained, for a tortious taking of the fence is shown. 1 Chit. Pl. 372; Smith v. Milles, 1 T. R. 479, cited in 3 Stark. Ev. 1443; 2 Bac. Abr. 37; Costs, B, cites 1 Freem. 394; Anderson v. Buckton, 1 Str. 192; Thompson v. Berry, ibid. 551; Smith v. Clarke, 2 Str. 1130; Barnes v. Edgard, 3 Mod. 39; 2 Stark. Ev. 346.
    The jury were told, in effect, that they must be convinced beyond all doubt, that the property taken belonged to the plaintiff, before they could return a verdict in his favor. This doctrine is not applicable to civil cases. If a jury are satisfied that a plaintiff has maintained his action, they should find a verdict for him, notwithstanding they may have some particle of doubt.
    The sealed verdict did not embrace the whole issue, which included the asportavit as well as the clausum fregit. It is true that the courts here do not poll juries according to the practice in New York; but in this instance the jury should have retired to deliberate, before their verdict was changed into a general verdict for the defendant. Rosse’s case, 3 Leon. 83.
    
      Beal, for the defendants,
    cited, in regard to polling the jury, Wats v. Brains, Cro. Eliz. 778; Rex v. Wooler, 2 Stark. R. 111; Root v. Sherwood, 6 Johns. R. 68; Blackley v. Sheldon, 7 Johns. R. 32; Bunn v. Hoyt, 3 Johns. R. 255.
   Per Curiam.

The finding of the jury, that the evidence did not prove ct beyond a doubt ” that the plaintiff’s close had been broken, had reference to the words reasonable doubt ” in the judge’s instruction ; and though this expression is somewhat vague, yet it is in common use, and is sufficiently understood by a jury. The objection on this point furnishes no ground for' a new trial.

Another objection is made in relation to the effect of the verdict as returned by the jury. When the jury have found a verdict substantially, it is read to them in form.( If any juror does not agree to it when so read, he may express his dissent, and the jury may retire and revise the verdict. But if, when asked in the usual manner whether they agree to the verdict, they all answer in the affirmative, it will be sufficient to authorize it to be recorded.

As to the merits of the case, we consider the property of the fence to have been in Bourne, by virtue of his agreement with White. Without doubt, but for this agreement, the fence would have passed to White. The conveyance to the plaintiff was by a line which excluded the fence, and left it, in one place, fifteen feet within White’s land, and the deed contained no covenant or bargain respecting the fence. This gave no right as against White, so that the plaintiff could not, without license from him, have occupied between the line of his purchase and the fence, without trespassing. The act of the defendants therefore, in taking away the fence, was no wrong to the plaintiff, for he neither owned the land on which it stood, nor is there any evidence that he was in possession of it; for his possession must be held to correspond with his title, unless a different possession is proved.

The principles advanced by the plaintiff’s counsel are not controverted, that the fence upon the land conveyed will pass as appurtenant, without being specially named, and that a fence intended and maintained as a division fence would so pass, although it might vary from the true line. But the part of the fence taken by the defendants was not intended as a division fence. On the contrary, by compact, it was agreed between Bourne and White not to be a division fence, but to be left as the property of Bourne, distinct from the land.

Joscelyn and Howard should have contracted with Bourne for the fence, if they wished to have it, and they would then have had the same right respecting it that Bourne had ; which however, as against White, would have been limited to the right of taking it away, for by the deed of White there was no qualification of his title or possession of the land conveyed to him.

It was urged, that in trespass quare clausum, although the plaintiff fails to prove his close, he may recover for chatte.s alleged to have been carried away. The authorities however do not support this, where there is but one count. But if it were so, the case shows that the plaintiff has neither proved his property in the close, nor in the fence.

Judgment affirmed. 
      
       See Commonwealth v. Roby, 12 Pick. 496; Fellows's case, 5 Greenl. R. 333. In some of the States, however, polling of the jury is allowed. See 1 Chitty’s Crim. Law, (3d Amer. ed.) 635, n. (B) and eases there collected.
     
      
       See 2 Stark. Ev. (5th Amer. ed.) 813, 814.
     