Smith v. Raymond

Smith v. Raymond. 1804. In the Court below, Phinehas Smith, Plaintiff; Timothy Raymond, Defendant. A ve rdict must contain all the ■material fact» put in issue. 1"HE plaintiff brought an action of trespass, alleging that the defendant had entered upon his land, and cut down his timber trees thereon standing ; to which title was pleaded, and the cause removed agreeably to the statute. in the Superior Court, the lowing pleadings : mse was tried on the fof ■ Plea — “ That long before the date and impetration of “ the plaintiff’s writ, one I.vke Raymond of Stamford, “ in said County, was well seized, and possessed, in his “ own right, in fee, of the land and premises, on which. “ the said trees were standing and growing ; and the “ said Luke Raymond, for more than thirty eight years “ before, was, and ever since hath continued, seized “ and possessed, in his own right, in fee, of the land, “ on which said trees were growing as aforesaid ; and the “ said Luke Raymond being so seized thereof, he the dc- “ fendant, at the special instance and request of the said “ Luke Raymond, and as a servant to him, did on or “ about the 1st dav of March, 1T97, enter in and upon the “ north side of said described piece of land, and did then “ and there cut about four trees, then and there standing “ and growing on said land of the said Luke Raymond, as *c well he might do ; all which is the same cutting,” 8cc. Replication — “ That said land, at the time of cutting “ said trees, and at the time the defendant was so re~ “ quested to cut the same, and long before, and ever “ since, did of right belong to the plaintiff, as his own “ estate, in fee, exclusively of all others ; without that, “ that said Luke Raymond was, in any way or manner, “ seized or possessed of the laud, on which said trees “ "were standing and growing; and without that, that “said Luke Raymond was ever, at any time,- seized or “ possessed, in his own right, or in right of any other “ person or persons, of the land, on which said trees 4 were growing as aforesaid, either at, before, or after, a the date and impetration of the plaintiff’s writ; and 44 without that, that the defendant might well, or by any ⅜£ right, enter on said land, orcutsaidtre.es, atthespe- “■ cial instance and request of, cr as servant to, the said “ Luke May mona. ■\ Issue was joined, to the jury, who returned the following verdict: “ In this case, the jury find, that long “ before the date and impetraron of the plaintiff’s writ, one Luke Raymond of Stamford, in said Count , , was “ well seized and possessed, in his own right, in fee, of “ the land and premises, in the plaintiff’s declaration “ mentioned, on which the said trees were standing and a growing; and, therefore, find ibr the defendant hie “ cost.” The plaintiff moved in arrest of judgment, that the verdict contained no material fact put in issue by the pleadings. The Court adjudged this motion insufficient, and sustained the verdict. R. M. Sherman, for the plaintiff. Smith, (of Woodbury) and Daggett, for the defendant, contended, that the traverse, offered by the plaintiff, was in the alternative,- — “ either at, before, or after,5? — - and that the verdict had answered one of the alternatives. Stat (a) [MAJORITY — By the Court.] By the Court. The question on the pleadings, as closed, is a question of title. The plea of the defendant is not so formal as it might have been ; but, so far as respects title, is substantially good, and if true, sufficient to save the defendant from the plaintiff ’s demand. The t -¿plication of the plaintiff' is, also, somewhat informal, but substantially good, as it negates and puts in issue every part of the defendant’s pleamaterial or essential to the decision of the question of title, and Of the plaintiff’s right to recover. By the verdict of the jury nothing more is found, than, “ That long before the date a gjjjj impetration of the plaintiff’s writ, one Luke Ray-iL monel of Stamford, in said County, was well seized “ and possessed in his own right, in fee, of the land and u premises in the plaintiff’s declaration mentioned, on which the said trees were standing and growing.” But whether, at the time of the licence given to the defendant, or at the time of cutting the trees complained of, or at the date and impetration of the plaintiff’s writ, the said Luke Raymond was seized and possessed of the premises, (which material facts were put in issue by the pleadings) does not appear from the verdict; nor are the}-, with any certainty, to be inferred therefrom. The verdict of the jury is, therefore, defective, in that it does not find the material facts put in issue, and is wholly undecisive as to the question of title, which the defendant, by his plea, took upon himself to establish. The verdict of the jury, therefore, did not lay a foundation sufficient to warrant the judgment of the Superior Court, in favour of the ‘defendant; and- the plain - tiff’s motion in arrest ought to have been adjudged sufficient ; and for this, the judgment of said Superior Court is reversed.