Norcross v. Welton

The opinion of the court was delivered by Veazey, J. The holding of - the County Court, in the instructions to the jury, that the allegation in the several counts of the declaration to the effect that the close which was broken and entered was the home farm of the plaintiff, had reference to the time the suit was brought,- and not the time when the trespasses were committed, was correct. That the pleader so intended is indicated where, referring to the division fence, he says, which “ separates the homo farm of * * * from the land of,” etc. The declaration in all the counts alleged that the parties were owners of adjoining lands, and that there was a division fence between the home farm of the plaintiff and the adjoining land of the defendant, etc. It appeared that the defendant’s • land was between and adjoining two farms of the plaintiff, one on the east and one on the west. The trespasses were on the farm west of the defendant’s land. The plaintiff’s evidence tended to show this was his home farm, and that he lived upon it when the trespasses were committed. The evidence of the defendant tended to show that he lived on the other farm during that time and when the writ was made, and that that was the home farm. It was under these circumstances that the claim of variance between the allegations and proof was made by the defendant. The court held there was not a variance if the jury should find that the farm on the west could be fairly designated and called the home farm, and was accustomed to be so called, although the plaintiff did not live upon it when the writ was made. The defendant cannot avail himself of his own evidence upon [53] which to base a claim of variance. Curtis v. Burdick et al. 48 Vt. 166. As the plaintiff alleged the trespasses to have been upon his home farm he was obliged so to prove it, and such in effect were the instructions to the jury. The defendant’s evidence raised an issue as to which was the home farm. If he had prevailed on that issue he would have had a verdict under the charge. As said by Auderson, J., in Walford v. Anthony, 8 Bing. 74: “A variance can only be when there is a clear discrepancy between averment and the plaintiff’s proof. If there is an ambiguity in averment, the difference cannot be clear, because the proof may be true’ in one sense.” In this case there was no clear discrepancy between the averment and the plaintiff’s proof. Judgment affirmed.