
    Austin vs. Morse.
    ALBANY,
    Jan. 1832.
    In trespass quare clausum fregit, if the declaration be general, without naming the locus in quo or the abuttals of the close, and the defendant pleads liberum tenementum, upon which the plaintiff takes issue, instead of new assigning, the defendant verifies, his plea by shewing title to any lands in the town where the premises are alleged in the declaration to be situate.
    Error from the Washington common pleas. Austin sued Morse in an action of trespass quare clausum fregit, stating the close to be situate in the town of Easton, without naming the close, or specifying abuttals. The defendant pleaded liberum 
      
      tenementum, and the plaintiff replied, taking issue upon the plea. The cause was brought to trial, and the principal question between the parties was the ascertainment of a boundary line. After much testimony was given, the common pleas intimated their opinion that the defendant had made out his defence, and advised the plaintiff to submit to a nonsuit, with leave to make a case and to turn the same into a bill of exceptions; the plaintiff accordingly submitted to a nonsuit. The cause was brought before this court on a bill of exceptions. The judgment of the common pleas was reversed, but it is not deemed material to report more of the case than what relates to the plea of liberum tenementum.
    
    
      I. Williams, for plaintiff in error.
    
      C. F. Ingalls, for defendant in error.
   By the Court, Savage, Ch. J.

The state of the pleadings in this case is not that which is best calculated to settle the point in dispute; for, according to the strict rules of law, if the defendant has shewn title to any land in the town of Easton, he has verified his plea. It was decided in Helwis v. Lombe, 6 Mod. 117, that “if a man declare quare clausum generally in such a mile, the defendant may plead liberum tenementum, and if the plaintiff traverse it, it is at his peril; for the defendant, if he has any part of his land in the whole town, shall justify it there; and therefore the better way is to make a new assignment.” This doctrine will be found in 1 Saund. 299, b., 7 T. R. 335, per Lawrence, justice, Willes, 223, Salk. 453. Mr. Chitty states, 1 Chitty’s Pl. 565, 6, that in trespass to real property, the plaintiff may answer a plea of liberum tenementum in either of four ways: 1. if the close has been described by a name or abuttals in the declaration, then the replication should deny the defendant’s title, and conclude to the country; 2. If the plaintiff derives title under the defendant, then he should not deny the defendant’s title, but reply a lease •or some other title under him; 3. If the plaintiff has a middle ¡case, and neither derives title under the defendant, nor has a title inconsistent with the defendant’s title, he may reply that before the defendant had any thing in the premises, another person was seised, and sheW a title derived from such person; 4. If the declaration be general, without naming the locus in quo or the abuttals, and there be any reason to apprehend that the defendant has any land in the same parish, the plaintiff must new assign, setting out the locus in quo with more particularity.

In the case under consideration, -the plaintiff took issue to the defendant’s plea without a new assignment. According to the cases cited, the defendant verifies his plea by shewing title to any lands in the town of Easton.  