Citation Numbers: 34 Me. 419
Judges: Appleton, Howard, Reasonings, Shepley, Tenney, Wells
Filed Date: 7/1/1852
Status: Precedential
Modified Date: 9/24/2021
It is provided in c. 115, § 13, of the R. S. that “ in all actions of trespass, and trespass on the case, the declaration shall be deemed equally good and valid, to all intents and purposes, whether the same shall be in form a declaration in trespass, or trespass on the case.” When the whole section is examined in connection, it is obvious that the design of the Legislature was to abolish the distinction between two classes of cases, in the form only of declaring in the writ; so that proof, which should make out a case of one class, should not fail of effect on account of the writ being appropriate for the other class. But in cases, where the distinction is really of substance, the provision is inapplicable.
To entitle a party to damage for an unauthorized entry
We cannot suppose, that it was contemplated, that in a declaration of trespass on the case, or trespass de bonis asportatis in technical form, proof simply of a breach of the close, on which the injury was alleged to have been done, in the one, or from which the goods described as unlawfully taken in the other, would be sufficient to maintain the action. Or, that under a count for trespass quare clausum, without alleging any thing further in aggravation, evidence of injuries to the plaintiff’s close described, occasioned by some remote act of the defendant upon his own land; or taking from the defendant’s land, the plaintiff’s goods without authority, would be attended with the same consequences as would satisfactory proof of a forcible breach of the close. Such a construction would at once break down all the established doctrines, in relation to venue, jurisdiction of different tribunals, costs, and title to property.
It is true, that counts for trespass quare clausum and trespass de bonis asportatis may be joined in the same action. And it is competent to allow an amendment, by adding a count for goods taken in an action of trespass upon real
Plaintiff nonsuit.