16 Mass. 470

October, 1820

In trespass quare clausum, alleged to have been committed diversis diebus et vicibus, if the plaintiff give evidence of one or more acts of trespass within the days specified, he shall not be permitted to prove an act done at any other time; but if he so elect, he may waive his right to prove any act within the days, and may prove one done at any other time, allowed by the statute of limitations.

TRESPASS quare clausum fregit. The writ was tested on the 26th of August, 1819; and it is alleged, in the declaration, that the defendant, on the 1st of May, 1818, and on divers days and times between that day and the

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day of the purchase of the writ, broke and entered the close, and there cut down and carried away forty trees.

Trial, on the general issue, before Jackson, J., in May last, at Taunton. The lands of the plaintiff and defendant adjoined each other, and the boundary was in dispute. The plaintiff proved the cutting of trees by the defendant, within the time laid in the declaration, on the land claimed by the plaintiff; and the jury were instructed to find a general verdict for the plaintiff, if they should be satisfied that the true boundary line was as claimed by him.

The plaintiff also produced evidence to prove the cutting of one tree by mistake, in March, 1818, which was before the time mentioned in the declaration, on land acknowledged by the defendant to be the plaintiff's. This evidence was objected to; and it was insisted, on the part of the defendant, that damages could not be given for any trespass not within the time specified in the declaration.

The judge instructed the jury that if they should find the boundary as the plaintiff claimed, and that the defendant had entered, &c. within the time alleged in the declaration, they should not assess damages for any trespass at any other time; but if they should find the boundary as contended for by the defendant, and of course that he was not guilty of any trespass within the time mentioned in the declaration, then they might find him guilty of the one act of trespass in March, 1818, provided they were satisfied with the evidence as to that act. The jury found the defendant guilty of cutting one tree in March, 1818, and not guilty of the residue of the trespass complained of.

A new trial was moved for by the defendant, on account of the admission of the evidence objected to by him, and of the direction of the judge thereupon.

Morton, for the plaintiff.

B. Whitman and H. Cushman, for the defendant.

JACKSON, J. I concur entirely with my brethren, in setting aside this verdict. After the plaintiff had undertaken

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to prove one or more trespasses within the times mentioned in the declaration, I ought not to have admitted evidence of any trespass at any other time.

Originally every declaration in trespass seems to have been confined to one single act of trespass. When the injury was of a kind that could be continued without intermission, from time to time, the plaintiff was permitted to declare with a continuando, and the whole was considered as one trespass. In more modern times, in order to save the trouble and expense of a distinct writ, or count, for every different act, the plaintiff is permitted to declare, as is done in this case, for a trespass on divers days and times between one day and another; and, in that case, he may give evidence of any number of trespasses within the time specified. Such a declaration is considered as if it contained a distinct count for every different trespass. This is for the advantage and ease of the plaintiff; but he is not obliged to avail himself of the privilege, and may still consider his declaration is containing one count only, and as confined to a single trespass. When it is considered in that light, the time becomes immaterial, and he may prove a trespass at any time before the commencement of the action, and within the time prescribed by the statute of limitations.

But it would be giving an undue advantage to the plaintiff if he could avail himself of the declaration in both of these modes, and would frequently operate as a surprise on the defendant. He is, therefore, bound to make his election before he begins to introduce his evidence. He must waive the advantage of this peculiar form of declaration, before he can be permitted to offer evidence of a trespass at any other time. The rule, therefore, on this subject was mistaken on the trial. It is not that the plaintiff shall not recover for any trespass within the time specified, and also for a trespass at another time; but he shall not give evidence of one or more trespasses within the time, and of another at another time.

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If the option thus allowed to the plaintiff should be so exercised as to surprise the defendant at the trial, the Court will always grant a continuance, or such a delay of the trial as may enable the defendant to prepare fully for his defence. [Note 1]

Verdict set aside, and a new trial ordered


[Note 1] [Mr. Starkie says, trespasses to lands are usually alleged to have been committed on a day specified, and on divers other days and times between that day and the commencement of the action; and. under such an allegation, the plaintiff may prove any number of trespasses committed within that space of time, or one single act of trespass previous to the day first mentioned.—B. N. P. 86. per Ho’t, Ch. J. 4 Ann. at Hereford Str. 1095.—1 Salk. 639.—Hume vs. Oldacre. 1 Starkie, C. 351.—A very learned person has intimated a doubt whether any number of trespasses may not be given in evidence, all anterior to the day first named. It seems, however, to be a general principle that where the plaintiff has, by his own description, limited the extent of the injury complained of, he cannot go beyond that description in his evidence; and where a particular space of time is thus assigned for the trespasses, it seems to operate by way of description, and not as a mere formal allegation of time. It is nevertheless competent to the plaintiff to waive his continuando, and to prove a single act of trespass anterior to the day first mentioned; for the allegation of trespasses; on other days than the one first named cannot, it seems, place him in a worse situation than if one trespass only had been alleged; and this was so held in Wilson vs. Powell, Skinner, 641, B. N. P. 86. Co. Lit. 283.—The practice on this subject seems to have been formerly much more strict.—See Clayt. 141, p1. 256; ib. 5. p1. 8. Vin. Ab. Ev. R. b. 15, 16.—Leon. 302, pl. 416. Tr. per pais, 199.—It was even held that if the plaintiff could not prove the trespass on the first day, he could not prove trespasses on the diversis vicibus afterwards.— Walker vs. Dawson, Clayt. 141, pl. 256.— 3 Stark. Ev. 806. 2d London edition.—ED.]