
    Aaron E. Eames vs. James M. Prentice & others.
    In an action of trespass, a count for breaking and entering the plaintiff’s dwelling-house, and taking and carrying away goods therefrom, is not supported by proving a trespass in taking and carrying away goods only.
    This was an action of trespass for breaking and entering the plaintiff’s dwelling-house, and taking and carrying away therefrom and converting his goods.
    At the trial in the court of common pleas, the defendants requested the presiding judge, (Byington, J.,) to rule, that if the jury did not find the defendants guilty of breaking and entering the dwelling-house, they could not find them guilty of the residue óf the trespass alleged, there being but one count in the declaration. But the judge refused so to rule. The jury returned a verdict, that the defendants were not guilty of breaking and entering the' plaintiff’s house, but were guilty of the residue of the trespass, as set forth in the declaration. Judgment was thereupon entered for the plaintiff, and the defendants alleged exceptions.
    
      S. H. Allen, for the defendants.
    
      C. R. Train, for the plaintiff,
    cited Sampson v. Henry, 13 Pick. 36; Meader v. Stone, 7 Met. 147, 151; Holly v. Brown, 14 Conn. 255; 1 Saund. 27; Dutton v. Holden, 4 Wend. 647 Bul. N. P. 94; Wright v. Chandler, 4 Bibb, 422; Mundell v. Hugh, 2 Gill & Johns. 193; Ropps v. Barker, 4 Pick. 239; Bishop v. Baker, 19 Pick. 517.
   The Court

held, that where the plaintiff counts in trespass quare clausum fregit, he cannot support the action by proving a trespass in taking and carrying away goods only; and overruled Sampson v. Henry, 13 Pick. 36, so far as it is opposed to this view. New trial granted.  