
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC. 1811.
    Manning v. M’Donnell and others.
    In the action of trespass quare clausum fregit, where a particular place is assigned in the declaration, the trespass must be proved as laid ; otherwise the defendant might be surprised.
    Motion to set aside a nonsuit, ordered by the Court of Common Pleas for Richland district, Judge Smith, presiding. The action was trespass quare clausum, fregit.
    
    . The declaration set forth that the defendant on the day of, &c., in the district and State aforesaid, to wit, at Columbia, and within the jurisdiction of the court, with force and arms, &c., the close or plantation of the plaintiff, did break, &c.
    Plea, not guilty, and issue thereon.
    The plaintiff offered evidence to prove an unlawful entry and trespass upon lands lying in Dutchman’s Creek, in apart of the district remote from Columbia, where the trespass is laid to have been committed.
    This evidence the court refused to admit; and other evidence not being offered, the plaintiff was nonsuited.
    The motion was argued by Stakk and Clifton for the plaintiff, and Egan for the defendant.
    For the plaintiff, it was contended, that the particular place where the trespass is committed, need not be stated in the declaration ; and if stated, need not be proved. Laying the trespass to have been committed in the district is sufficient; and it is only necessary to prove that the trespass was committed somewhere in the district.' The plaintiff was not tied down to prove the trespass in Columbia, because that place was mentioned for the sake of form, any more than if the action was on a bond given out of the State. The place where, is only inserted, according to English precedents, in order that it may be known, whence the jury are to come, which is called the venue. In this case it was not necessary to lay a venue, and of course it was not necessary to prove the place laid as a venue. Cited 3 Wils. 339. 1 Bos. and Pul. 225.
    
      Note. If in trespass quarc clausum fregit, plaintiff set out the abuttals of his close, he must, on evidence, prove every part of his abutment. Bull. N. P. 89. 2B1. Rep. 1089.
    The general issue was pleaded. If a special plea had been pleaded, which had concluded with an averment that it was the same trespass, the proof ought to have been accordingly — that it was in the same place ; but here such- proof was not required. Cited 1 Peak, 303. 1 Saund. 299. 2 Saund. 5, in the notes by Sergeant Williams.
    Egan, contra, in reply. The cases cited do not apply. The locus in quo must be described. It might not have been necessary to lay a particular place in the district in the declaration ; but as it was laid, it was necessary to prove it as laid. If the trespass were proved at another place the defendant might be surprised.
   Brevard, J.,

delivered the opinion of the court. The general rule in actions for breaking the close, is, that the plaintiff may. declare generally, to which the defendant may plead the common bar, (his own freehold,) at another place, without traversing the place assigned, to drive the plaintiff to a novel assignment. But when the particular place is assigned in the declaration, the trespass must be proved as laid 5 because in such case a novel assignment is pre-eluded. This mode of declaring, if improper, might have been demurred to ; but.it seems proper enough. It supercedes the necessity of pleading the common bar, to drive the plaintiff to that which he has done voluntarily in the first instance; i. e., to assign a particular place. The issue being upon the trespass as laid, it was necessary to prove the case as laid. This seems to be the more proper, as otherwise the defendant might be surprised by evidence to prove a trespass at a place different from that laid in the declaration.

Motion discharged.  