
    
      Gertrude Riley vs. David Denny.
    
    la trespass quare clausum, fregit, although, under the general issue, the defendant may justify by proving title in himself, or that he entered as landlord to distrain for rent; yet if the plaintiff’s title be proved or admitted, matters in discharge of the right of action must be specially pleaded.
    
      Before Frost, J. at Edgefield, Spring Term, 1845.
    This was an action' of trespass, quare clausum fregit, commenced in February, 1843. The plea was the general issue.
    One corner of the plaintiff’s grant, which was the oldest, projected over the defendant’s line, so as to include about an acre and a half of the land embraced within the defendant’s grant. The defendant, in 1841, cleared and planted the land in cotton, to the line of his grant. Soon after, the plaintiff and defendant appointed surveyors to locate their lands. The survey was made in November, 1841, when the trespass upon the acre and a half belonging to the plaintiff, was ascertained and admitted. After the survey, the defendant picked out the cotton and removed the fence from the plaintiff’s land, and renounced all claim to it. The surveyor appointed on behalf of the .plaintiff had her papers at the survey, and represented that he was employed to settle the difficulty between the parties.
    His Honor the presiding Judge, instructed the jury, that if they believed that, at the time of the survey, the plaintiff’s surveyor was authorized to settle the whole controversy about the trespass, including the damages aS well as the title; and that all claim for damages was relinquished by the plaintiff, on the surrender by the defendant of the disputed parcel, they might find for the defendant.
    The verdict was for the defendant. The plaintiff appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.
    
      Wardlaw and Carroll, for the motion.
    
      Bauskett, contra.
   Curia, per Evans, J.

If the defendant, when the line was run by the surveyor, had instantly given up the land, and abandoned the occupancy thereof, and when sued had pleaded this specially, the verdict for him might be sustained. But he did not; he cultivated the land that year, and after he had gathered his crop, hauled away the rails. This subsequent trespass was not embraced in the arbitrament, if it may be so called, made by the surveyor, and certainly entitled the plaintiff to maintain an action for which she was entitled to recover something. But, as I have before intimated, the defence which was made, by whatever title it may be properly designated, could not be given in evidence as a justification under the general issue. The authorities cited abundantly shew that all such matters should be pleaded specially. 1 Ch. Pl. 498 ; Ham. N. P. 70.

In the case of Jones vs. Muldrow, Rice, 64, it was decided that the owner, when sued for turning out one who had taken possession of his land, might justify under the general issue, by proving title in himself. And in the case of Reed vs. Stoney, it was decided that a landlord might justify a distress for rent under the general issue ; but this was allowed under the 21st section of the statute 11 Geo. 2, ch. 19, 2 Stat. 579, which had been adopted in our practice, and thus made of force. The evidence might have been received under the general issue, in mitigation of damages, but in this case it was allowed as a justification, and upon it a verdict given for the defendant. The motion for a new trial is therefore granted.

Richardson, O’Neall, Wardlaw and Frost, JJ. concurred. 
      
      
        Ante, p. 401.
     