quære. See Whittaker v. Perry, 38 Vt. 107, 95. Occasional acts of possession, with con 113. tinued claim, constitute a sufficient possession of land to sustain trespass. Hibbard v. Foster, 24 Vt. 542. 90. A mere intruder upon lands may be forcibly expelled therefrom by the owner, and lawfully, so far as the land is concerned. If 96. A trespasser upon land is not accountguilty of a breach of the peace and trespass able to his co-trespasser. The latter having upon the person of the intruder in so doing, he manifested no claim, nor pretended to have any is liable for that, but his possession of the land right, has, in contemplation of law, no possesis lawful. Beecher v. Parmele, 9 Vt. 352. See sion that can be disturbed. Doolittle v. Linsley, Mussey v. Scott, 32 Vt. 82. Dustin v. Cowdry, 2 Aik. 155. 23 Vt. 631. 97. Where A sold B certain timber standing Goodrich v. Hathaway, 1 Vt. 485. 91. The defendant, the owner of cattle, on A's land, and B had entered and cut and found them upon the plaintiff's land. How removed a part;-Held, that B had such posthey came to escape, or how they came to be in session as entitled him to maintain trespass the plaintiff's possession, did not appear. The qua. clau. against a stranger for entering and defendant, against the plaintiff's prohibition, cutting and removing the rest of the timber entered and took away the cattle. In an action bought. of trespass qua.clau.,-Held, that these facts jus- 15 Vt. 233. tified the entry. Richardson v. Anthony, 12 98. The defendant went into possession of Vt. 273. (Bennett, J., dissenting.) 15 Vt. 234. land under a parol contract of purchase from 92. Tree. It seems, that a tree and its pro- B, paid part of the purchase price and claimed ducts are the sole property of him on whose land to hold the land under the contract. B conthe tree is situated; and that, considering the veyed to the plaintiff. Held, that the defendnecessary uncertainty of evidence as to the ant did not thereby become a tenant of the location and extent of the roots of a tree, its plaintiff, and that the plaintiff had no such location and property should be determined by possession as enabled him to sustain an action the position of the trunk or body of the tree of trespass. Ripley v. Yale, 16 Vt. 257. 34 above the soil, rather than by the roots within Vt. 552. or the branches above it; and held, that 99. The plaintiff was in possession of lands, where an apple tree was set and grew on the and his possession was prior to any possession plaintiff's land six feet from the division line by the defendant, or his grantors. The defendbetween his and the defendant's land, but the ant had a faultless chain of title on paper; but roots extended into, and the branches overhung a third person had acquired the ownership by the defendant's land, the defendant was liable fifteen years' possession adverse to the defendfor picking and converting to his own use the ant's grantors. In an action of trespass for a apples growing on the branches overhanging disturbance of the plaintiff's possession ;-Held, his own land. Skinner v. Wilder, 38 Vt. 115. that the plaintiff was entitled to recover. Note.-Whether trespass qua. clau., or trover, was Hughes v. Graves, 39 Vt. 359. the proper action was not decided, since counts 100. Legal seisin. The legal seisin of in each form were joined under G. S. c. 33. s. 14. land carries with it the possession and is suffi93. Search-warrant. Where an officer cient to enable the owner to maintain trespass, had completed the service of a search-warrant unless the injury is done to a tenant in actual by entering the plaintiff's house and taking the possession, or there is an adverse holding and stolen goods and the plaintiff before the magis- the injury is committed subsequent to the distrate, and he afterwards made a second entry seisin. Prentiss, J., in Robinson v. Douglas, for another professed purpose, which was law-2 Aik. 368. Kellogg, J., in Harris v. Haynes, ful, the court charged, in an action of trespass 34 Vt. 227. Chesley v. Brockway, 34 Vt. 550. qua. clau.,that if, after the defendant had fully 101. The plaintiff had taken a deed of lands, completed his search for the stolen goods, he but had not entered into actual possession, the made such second entry for the real purpose of grantor remaining on the premises by mere finding more evidence against the plaintiff, and sufferance, claiming no right. Held, that the that his profession of such other purpose was a plaintiff had a sufficient possession to maintain mere pretext, the plaintiff was entitled to trespass qua. clau. for an entry by a stranger. recover. Held correct. Lawton v. Cardell, Chesley v. Brockway. 22 Vt. 524. 2. Plaintiff's title and possession. 94. Actual possession. A tenant at will may maintain trespass for breaking down the fence of his inclosure. Brown v. Bates, Brayt. 230. 102. Where a tenant carries on a farm at the halves, the landlord has still such a possession as enables him to maintain trespass for an injury to the inheritance; as, digging stone, or cutting timber. Cutting v. Cox, 19 Vt. 517, 34 Vt. 553. 103. A title to lands, without entry, does not warrant an action of trespass qua. clau. against a party in actual adverse possession, [entering the plaintiff's house and there assaultfor the cutting of trees upon the land; nor ing and debauching the plaintiff's daughter;— (semble) trespass de bonis for the wood severed Held, that the breaking and entry were the gist from the land. Pratt v. Battels, 28 Vt. 685. of the action, and the debauching of the daughter matter of aggravation only. Hubbell v. Wheeler, 2 Aik. 359. 104. Trespass qua. clau. against A and B The plaintiff's title was by levy of execution against A, where the time for redemption had 113. So, where the declaration charges a expired, and demand had been made of B, that breaking and entering of the plaintiff's close, he surrender possession. A had never been in and breaking a certain gate and throwing down possession after the levy, and B held possession fences. Grout v. Knapp, 40 Vt. 163; or, takadverse to A before the levy, and adverse to ing and carrying away stone thereon. Goodrich the plaintiff ever since. Held, that the action v. Judevine, 40 Vt. 190; or fences. Howard v. did not lie against either. Bowne v. Graham, Black, 42 Vt. 258. 2 Tyl. 411. 114. In trespass q. c. f. with other wrongs 105. In trespass qua. clau. to land not in alleged,-as debauching the plaintiff's daughter the actual possession of the plaintiff, the per quod, &c. (Hubbell v. Wheeler, 2 Aik. 359); defendant set up a prior constructive posses-breaking the plaintiff's fence, gates, &c. (Grout sion in a third person. Held a sufficient v. Knapp, 40 Vt. 163); or carrying away the defense, although the defendant did not con- plaintiff's corn,--the breaking of the close is the nect himself with the title of such third person. gist of the action, and the other wrongs alleged Ralph v. Bayley, 11 Vt. 521. are but matters in aggravation. In such cases, a plea justifying the entry justifies the entire trespass; and in order to recover for such additional wrongs the plaintiff must new assign, relying upon them as a distinct ground of recovery. Warner v. Hoisington, 42 Vt. 98. 3. Pleadings and evidence. 106. Declaration. Under G. S. c. 33, s. 14, a count in trespass on the freehold can be joined with a count in case, when for the same 115. Matter of aggravation need not be cause of action. Hagar v. Brainerd, 44 Vt. pleaded to, and a plea which justifies the break294. ing and entering is an answer to the whole dec107. Description. A declaration in tres- laration-as, a license; right of way; a right pass for breaking and entering a certain close, to enter for a special purpose, &c. In such not averred to be the close of the plaintiff, and case, if the plaintiff relies upon the matters there taking away certain chattels of the plain-stated in aggravation as a distinct injury, he tiff, was held good as for a trespass de bonis must bring them forward by a new assignment. only. Hawley v. Clerk, 2 Tyl. 20. Hubbell v. Wheeler. Grout v. Knapp. Goodrich 108. In trespass qua. clau., a description of v. Judevine, 40 Vt. 190. Hathaway v. Rice, 19 the premises as "the close of the plaintiff Vt. 107. situate, lying and being in St. Albans," was 116. The declaration alleged, that the held sufficient. Rice v. Hathaway, Brayt. 231. 109. In trespass quare clausum, where the declaration gives the boundaries of the locus in quo, or otherwise describes it with certainty, it must be proved as laid, and the plaintiff can recover only on proof of the trespass where he lays it. Hooker v. Hickok, 2 Aik. 172. defendant broke and entered the plaintiff's close “and tore down and carried away the plaintiff's fence then and there standing." The case was referred on the general issue, and the referees reported that the fence was built by the plaintiff, but as a trespasser upon the defendant's land; that the defendant tore it down, and in so doing 110. The declaration described the locus as unnecessarily broke and injured the same. being in the town of F and bounded East by the West line of the town of P. Held, that the plaintiff could not recover if the locus was in fact in town P, although he had always possessed, improved and claimed it as being in town F. Ib. Held, that the plaintiff could not recover; that the gist of the action was the unlawful entry, and the destruction of the fence was but matter in aggravation, and the plea need not answer that; and held, that although in the reference of an action it may be heard and tried by the 111. Matter of aggravation. Matter of referee upon any state of pleadings applicable aggravation, correctly understood, does not con- and appropriate to the case, yet as in this case sist in acts of the same kind and description the locus in quo was in the defendant, and so as those constituting the gist of the action, but his entry was lawful, no defense could be made in something done by the defendant on the upon the facts in the nature of a justification of occasion of committing the trespass, which is, the entry of the plaintiff's close, which would to some extent, of a different legal character open the case to the plaintiff for any claim he from the principal act complained of. Hathaway might make under a new assignment. Howard v. Rice, 19 Vt. 102. v. Black, 42 Vt. 258. 117. In trespass, in 112. In trespass qua, clau,, for breaking and common form, for breaking and entering the plaintiff's house and entry. Held, that to sustain this point, it must removing and damaging his goods, where issue appear that the defendant had taken an actual was joined on a replication de injuria to pleas peaceable possession which was not abandoned justifying the trespasses, the court was "inclined down to the time of the last entry, so that in to think" that the plaintiff was not entitled what was done on this last occasion the defendto a charge that if the entry was made with ant stood in the attitude of defending his posstrong hand and a multitude of people, and not session, and not invading the plaintiff's possespeaceably, the plaintiff could recover. Carpen- sion by violence and with strong hand. Whitta. ter v. Barber, 44 Vt. 441. ker v. Perry, 38 Vt. 107. See Mussey v. Scott, 32 Vt. 82. 118. Where the declaration is of doubtful construction, as to whether certain doings fol- 124. In trespass for breaking and entering lowing the breaking and entering are laid as the plaintiff's close and carrying away certain matter of aggravation only, or as distinct in- stone, the plea, pleaded as an answer to the juries, the defendant is at liberty in his plea to whole declaration, was silent as to the breaking treat them as of the former character, since the and entering, and set up a justification of the plaintiff may new assign. Grout v. Knapp, removal of the stone. On special demurrer, 40 Vt. 163. But if such additional matter be the plea was held ill. 1st, as professing to pleaded to and be attempted to be justified, the answer the whole declaration whereas, at most, defendant will be bound by his own construc- it was only an answer in part; 2d, as taking tion of the declaration, and a new assignment is not necessary. Carpenter v. Barber, 44 Vt. 441. issue upon mere matter in aggravation. By Kellogg, J: If the defendant had the right to remove the stone, he should have pleaded that 119. In trespass for breaking and entering he entered the close for the purpose of exercisthe plaintiff's close and removing and damaging ing that right, doing no unnecessary damage. his goods, the defendant's pleas attempted to Goodrich v. Judevine, 40 Vt. 190. justify, not only the breaking and entering, but 125. In trespass declaring for breaking and also specifically the trespasses alleged as to the entering the plaintiff's store, removing his goods. Held, that the replication de injuria goods and expelling and keeping him out of was an entire traverse of the pleas, and put the store for 20 days, the defendant's plea the whole in issue; that the defendant was justified the entire trespass in its particulars, bound by his own construction of the declara- and the replication (under G. S. c. 33, s. 16) tion, and could not, under the issue, treat the trespass to the goods as matter of aggravation; that there was no necessity for a new assignment; and that the plaintiff might recover for damage done to the goods, though the entry might be justified. Ib. 120. Plea, &c. In trespass qua. clau.,if the the defendant attempt to justify under a special plea of title and possession, he must aver every material fact necessary to constitute a title. Gleason v. Howard, Brayt. 190. 121. In such action a license must be pleaded. It cannot be given in evidence under the general issue. Hill v. Morey, 26 Vt. 178. Sawyer v. Newland, 9 Vt. 383. traversed the entire plea. On trial the evidence sustained the plea as to the breaking and entering and as to removal of the goods; but did not tend to prove that it was necessary to this end to expel the plaintiff and exclude him from the store for the time that he was so excluded. Held, that it was error to charge that a justification of the entry under the pleadings covered the expulsion and exclusion of the plaintiff; and held, that a new assignment was not necessary, as the declaration contained a minute and circumstantial statement of the whole cause of action, and the plea professed to answer the whole, and the traverse was to the whole plea. Perry v. Carr, 42 Vt. 50. 122. A plea justifying an entry by virtue of 126. Where the declaration counts upon a a search-warrant sworn out by the defendant, single act of trespass which is justified by the need not aver that a complaint was signed by plea, the plaintiff cannot in his replication the applicant; nor that any minute was made traverse the plea, and also new assign. Spencer of the day, &c., when presented; nor that a v. Bemis, 46 Vt. 29. examination the witness's actual knowledge and means of knowledge, or to proceed in reverse order; and error cannot be predicated of either course. Wait v. Brewster, 31 Vt. 516. 11. A witness testified to a certain transaction and the date of it, and that he had written a letter upon the subject to one R. Held, that on cross-examination he might be inquired of, and without producing the letter, whether he did not in that letter give a certain other date to that transaction. Randolph v. Woodstock, 35 Vt. 291. 1. Admissions. The concession of a party at one trial, when not attached to the record, is considered as a concession for that trial only and does not bind at any future trial. Read v. Allen, 1 Tyl. 4. Phelps v. Hall, 2 Tyl. 401. 2. An admission upon trial must be taken according to its terms; and no presumption of a fact can be drawn from it, when the existence counsel offered to read his minutes of the of the fact is negated by the admission. defendant's testimony given on a former trial, endon v. Weston, 16 Vt. 332. which he swore were correct, and contained all Clar 12. In the plaintiff's closing evidence, his 3. Issue to court. The issue upon a plea of the testimony in chief, but did not contain of nul tiel record can only be tried by the court. If there is also an issue to the jury in the case, the issue to the court should be first tried and determined. Gray v. Pingry, 17 Vt. 419. the defendant's cross-examination. This was admitted against objection, the defendant being in court. Held correct. Johnson v. Powers, 40 Vt. 611. Plans, maps, proverified by the per 4. Instances of error. Where the county 13. Plans, maps, &c. court has jurisdiction of the parties and of the files, drawings and models, matters involved in a suit, it is error to refuse son making them as correctly made, are allowed, to try and determine the rights of the parties in proper cases, to be used in connection with because they may be more conveniently and the testimony of the person making them and completely determined in chancery, and so all the evidence in the case relative to the vardirect a verdict for the defendant. Kimball v. ious objects shown upon them, for the purpose Neal, 44 Vt. 567. of explaining and illustrating the subject, and may be submitted to the jury for examination during the trial, and in their retirement; and this, although the plan, &c., does not make a full representation upon both sides. A plan, 6. Notice to produce. If the opposite &c., might be so unfair, as that the court might party in whose possession a deed is presumed properly refuse to allow it to be kept before the to be, is without the State, seasonable notice to jury. Wood v. Willard, 36 Vt. 82. Hale v. his attorney within the State to produce the Rich, 48 Vt 217. deed is sufficient to warrant secondary proof of contents. Mattocks v. Stearns, 9 Vt. 326. 5. It is error for the judge to have any communication with the jury about the case after it has been submitted to them, except in open court. State v. Patterson, 45 Vt. 308. 7. Where suit was brought upon a written contract which was in the possession of the defendant, but was fully described in the declaration ;-Held, that the service of the writ and declaration was sufficient notice to produce to authorize secondary evidence of contents, where the defendant failed to produce the contract on trial. Dana v. Conant, 30 Vt. 246. 14. Memorandum. Although private memoranda are not admissible as independent evidence in favor of the party making them (Lapham v. Kelly, 35 Vt. 195. Cross v. Bartholomew, 42 Vt. 206. Godding v. Orcutt, 44 Vt. 54), yet the witness may testify therefrom, where he has only a general recollection of the transaction and states that the memorandum was correctly made by him at the time it was made. Mattocks v. Lyman, 16 Vt. 113; and the memorandum goes with his testimony to the jury. Lapham v. Kelly. Cross v. Bar 8. Examination of witness. G. S. c. 30, 8. 29, authorizing the court to order the examination of witnesses separate and apart from tholomew. each other, does not include parties to the cause who may be witnesses. Streeter v. Evans, 44 Vt. 27. 15. Where a witness on his examination in chief refers to a memorandum to refresh his memory, the opposite party is entitled to take 9. As a general rule, leading questions are and examine the paper for the purposes of not to be put on an examination in chief; but cross-examination. Nor can the witness be this rests in the discretion of the court, and excused from producing it on his statement error cannot be assigned of it. Hopkinson v. that it was a memorandum of his doings as a Steel, 12 Vt. 582. 21 Vt. 439. detective and of a public nature, and that 10. The practice as to the proper form of he could not submit it to examination without examining a witness upon matters of reputation, a breach of confidence, and a personal injuryhas not been uniform-whether to have him certainly not, unless it appears to the court state first the general fact, and leave for cross-that he had a reasonable ground of belief that he would thereby subject himself to personal sustains the declaration, though the declaration injury. State v. Bacon, 41 Vt. 526. is ill, or shows no cause of action. Wheelock v. Wheelock, 5 Vt. 433. Onion v. Fullerton, 17 Vt. 359. 16. A witness may be allowed, in testifying, to refer to a memorandum recently made by him partly from recollection, and partly from 23. Whatever evidence is pertinent to prove original entries, bills and receipts, containing the facts put in issue cannot be rejected, and dates, figures and amounts and concerning mat- the verdict must be according to the issue and ters that transpired long before; but this, not evidence, regardless of the sufficiency of the for the purpose of refreshing his recollection as pleadings. Barney v. Bliss, 2 Aik. 60. 11 Vt. to the correctness of the entries, but to enable 349. French v. Thompson, 6 Vt. 54. 22 Vt. him to state with accuracy the details of things 126. 23 Vt. 319. of which he had from recollection made the memorandum, but which he could not carry in his mind so as to be able to repeat them without the aid of the paper. Pinney v. Andrus, 41 Vt. 631. 24. Where a plea is traversed and the issue formed is tried by jury, the insufficiency of the plea, as that the defendant had no right to plead such a plea, cannot be raised upon an exception to the charge. The court tries such issues as the parties make by their pleadings. Carpenter v. Welch, 40 Vt. 251. 25. Where an insufficient special plea is 17. Mixed offer of evidence. It is not the duty or business of the court to dissect and analyze an entire offer of evidence which, as a whole, is illegitimate, and select and allow such traversed and issue joined, it seems, that the elements of it as would be legitimate if stand- issue must be tried, and that the court cannot ing alone, excluding the rest. Wright v. Wil- lay it out of the case. Batchelder v. Kinney, liams, 47 Vt. 222. II. THE ISSUE; EVIDENCE AS RELATED 18. Proof of issue-Effect. Where a trial was had, under the general issue, upon a declaration which showed upon its face that the plaintiff could not recover, a verdict was directed for the defendant, although the declaration should have been demurred to. Smith v. Joiner, 1 D. Chip. 62. 22 Vt. 126. 44 Vt. 150. 26. If a defendant claims judgment on the ground that he has proved a plea, which is insufficient in law as a defense, he must at least prove, so far as he does allege. Bryant v. Pember, 45 Vt. 487. 27. If a defendant succeeds upon an issue of fact joined on one of several pleas going to the whole action, he is entitled to a verdict and judgment, irrespective of the result of any other issue joined on any other line of pleading. Wilson v. Seavey, 38 Vt. 221. 28. Evidence confined to issue. Where 19. Where a trial is had upon a declaration which sets forth a defective case, although all parties go into special pleadings, the rule is the facts are proved as stated, it rests in the universal that they shall be confined strictly to discretion of the court whether to allow a ver- the facts put in issue. Campbell v. Hyde, 1 D. dict to be taken, leaving the defendant to his Chip. 65. motion in arrest of judgment, or to direct a verdict at once for the defendant. Baxter v. Winooski Turnpike Co., 22 Vt. 114. Dyer v. Tilton, 23 Vt. 313, 319. Amidon v. Aiken, 28 440. 44 Vt. 157. 29. In an action upon notes surrendered to the defendant after part payment accepted as in full upon his representations, claimed to be false and fraudulent, that he had disposed of all his other property in payment of his honest 20. Upon trial under the general issue, the debts;-Held, that evidence for the defendant plaintiff is entitled to a verdict if he proves the that he owed others besides the plaintiff to an facts stated in his declaration, although the amount as great as all his property, was not declaration might be ill on demurrer, or on admissible, since it did not tend to prove that motion in arrest; and although the evidence the statements made were not false, nor that the may disclose matter in justification. Allen v. plaintiff was not thereby deceived. Reynolds Parkhurst, 10 Vt. 557. 19 Vt. 639. 31 Vt. v. French, 11 Vt. 674. 438. 30. In an action to recover the difference 21. Where the plaintiff proves his declara- agreed to be paid on an exchange of oxen, the tion, he is entitled to a verdict in the absence only defense was a warranty of the plaintiff's Held, that it was without the issue and of proof of facts on the part of the defendant to oxen. obviate it; and the defendant cannot require incompetent for the defendant to prove that the the court, on the trial before the jury, to enter- oxen he exchanged were worth more than those tain and decide a question outside the issue he received. Thomas v. Howe, 38 Vt. 600. 31. Where issue was taken on pleas: (1), that joined. If the declaration be insufficient, the objection should be taken by demurrer, or the defendant did prepare a suitable and conmotion in arrest. Newman v. Wait, 46 Vt. 689. venient kiln or dry-house, and that it was pre22. It is not error to receive evidence which pared and ready for use when required for the |