
    William Caruth vs. Arva Allen.
    ■the plea of liberum tenementúm, admits the possession in the plaintiff) and' the trespass charged in the plaintiff’s, pleading ; and' where the plea was not supported, and notwithstanding the jury gave a ver-diet for the defendant, the court granted a new trial.
    TRESPASS, quare clausum fregit. — Tried at Abbeyille, Fall Term, 1822, before Mr. Justice Nott.
    
    This was an action of trespass, quare clausum fregit. The defendant pléaded liberum tenement-urn. - But in tracing up his chain of title, it appeared to have' occurred since the bringing of the action, and subsequent to the trespass which he was attempting to justify.
    On the part of the plaintiff, there was no evidence of a trespass, except what was admitted by the defendant’s plea.
    The presiding judge told the jury that the defendant’s’, plea admitted the possession of the plaintiff, and a trespass by himself, and that having failed to support that plea, the plaintiff was entitled to recover — bút as he had proved no actual damage, and it whs very obvious that. he had neither title nor possession, he was only entitled to nomi" nal damages.
    The jury found a "verdict for the defendant.
    
      - This was a -motion for a new trial, on the groitnd fihai; the Verdict was contrary to law and evidenee.-
    
      Noble í1’ Warcllaw, for the motion.
    
      Livingston, contra.
   Mr. Justice Nott

delivered the opinion of the court:

This court is satisfied with the directions given to the jury by the presiding judge in the court below. In the case of Singleton 8? Millet, fl Nott <§• McCord, 355,J the court, speaking of the plea of liberum tenementum. gays, “the plea admits the possession and the trespass charged in the plaintiff’s pleadings.” If therefore the plea admits the possession and the trespass, the plaintiff was entitled to a verdict — he ought not indeed to have recovered any thing more than nominal damages, perhaps not enough to have carried the costs; and that perhaps in any other form of action, would have been a good cause for not granting a new trial; but the verdict in this case establishes the right of the land in the defendant, when in. fact he failed to support his plea.

The motion therefore must be granted.

Justices Gantt, Richardson and Colcoch, concurred*  