Collum v. Andrews

The opinion of the Court was delivered by Sergeant, J. 'The case in Dyer, 23 b, seems to be contradicted by the authorities, and the rule is laid down by Mr Chitty, 1 Chit. Pl. 606, that in trespass to real property, if the declaration does not state the name or abuttals of the close, &c., with such precision as to avoid the possibility of the defendant’s having a close, &c., in the same parish of a similar description, and the defendant has pleaded liberum tenemenlum, without describing the close, the plaintiff should new assign and not take issue on the plea. In the present case, however, the plaintiff neither made a new assignment nor took issue. The plea was entered in short, and according to our usual loose practice, there was no replication whatever. The parties went to trial without one, and on the trial, they would seem to have gone into evidence of their mutual claims to the two hundred acres, of which the plaintiff showed his possession, the other two hundred acres being admitted to be the property of the defendant. At least, this appears to have been the case, so far as we can judge from the statement on the subject, in the charge of the court, and we are not furnished with the evidence. The court says the cause had been tried on its merits relative to the trespass into the field of the plaintiff, on the western two hundred acres, and where the defendant sowed and reaped a crop of buckwheat. Under these circumstances, we are of opinion that it falls within ¡the doctrine laid down in Sauerman v. Weckerly, 17 Serg. & Rawle 116, that an omission to compel the opposite party to perfect the pleadings beforehand, ought to be considered, what it is in justice ¡and truth, a tacit agreement to waive matters of form, and try the ¡CSiuse on its merits, just as going to trial on a short plea is, accord [519] ing to our practice, a waiver of the right to demand a plea in full form. Carl v. Commonwealth, cited Ibid. Judgment affirmed.