St. Clair County IL Archives Court.....Ritter, John Hahn V Henry 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 6:35 am Source: Reports Of Cases Written: 1850 John Hahn, appellant, v. Henry Ritter, appellee. Appeal from St. Clair. It is a general rule in actions for torts that matters in discharge or justification of the alleged tort, must be specially pleaded, and cannot be given in evidence under the general issue.(a) In actions of trespass, a former recovery must be specially pleaded, and cannot be insisted upon under the plea of not guilty. On the seventh of June, 1849, plaintiff below filed his declaration in trespass quare clausum fregit, against defendant below, containing two counts: First count charges that defendant, on the first day of June, 1845, and on divers other days between that day and the commencement of this action, broke the close of plaintiff, etc., broke down the fence and erected buildings, etc. Second count charges that, on the first day of June, a. d. 1848, and at divers other times from that until the commencement of this action, defendant broke the close of plaintiff, etc. Defendant filed three pleas. First. General issue. Second. That plaintiff, as to any trespass prior to the twenty-first day of March, 1848 (when the first action was commenced), actio non, because of the committing of the said supposed trespass, plaintiff sued him for the same in trespass, and defendant was acquitted. Third. Liberum tenementum. Plaintiff joined issue on first plea. Replied to second, that the trespasses in the first count mentioned are not the same for which judgment was obtained. Replied to third plea by general traverse. The case upon these issues being submitted to the jury, they found a verdict of not guilty for the defendant. Plaintiff moved for a new trial, which motion was overruled, and judgment given for costs in favor of defendant. The cause was heard before Underwood, Judge, and a jury, at April term, 1850. The plaintiff below prayed this appeal, and assigned for error that judgment was for the defendant. That the court erred in giving instructions and in overruling the motion for a new trial. That the court erred in submitting the issue arising on the second plea to the jury. G. Koerner, for appellant: The evidence not only preponderated in favor of the plaintiff but was all in his favor. The jury mistook the law and the facts of the case, and the court will give a new trial in such a case: 11 Ill. Rep., 142. The first instruction was clearly erroneous, because it presented to the jury a question of fact, as to whether the same trespasses were complained of in the same suit between the same parties; and one of law, as to whether the title was distinctly put in issue at the former trial. This latter question was to be collected from the legal character of the pleadings, and was a question for the court to decide. In an action of trespass quare clausum fregit, neither the general use nor liberum tenementum puts the title to the freehold in issue. In order to create a bar in an action quare clausum fregit, by plea of former acquittal, an issue must have been taken and found upon a traverse of a precise fact material to the right in question: 3 East., 2d. of new edition, 174 and 8, 182, notes; 15 Pickering, 276; 4 Conn., 276; 5 Conn., 127; 3 Wend., 36, 35, 38, 40; 8 Wend., 20, 23, 24, 25; 2 Gilman, 355; 6 Price, 146. The second instruction, as well as the first, is erroneous, because they contain at best mere abstractions; had not a particle of testimony to rest upon, and were eminently calculated to mislead. As to the second instruction in particular, the mere agreement would be void under the statute of frauds: 2 Gilm., 423. Instructions entirely abstract are erroneous: 1 Dana, 35 and 273; Ill. U. S. D., 568, secs. 485, 504; 3 A. K. Marshall, 86. G. Trumball, for appellee: An agreement by parol for the settlement of a boundary line is effectual, and not liable to any objection on the score of the statute of frauds and perjuries: Jackson v. Dysling, 199, 200; Boyd's Lessee v. Graves et al, 4 Cond. R., 525; 4 Philips' Ev., 232; 12 Wend., 130; Law Library, vol. 38, top p. 65; Crowell v. Mangles, 2 Gil., 423. That the award is conclusive: Doe, etc., v. Roper, 2 East., 23; Jackson v. Gager, 5 Cow., 383, 387; 4 Phil. on Ev. 232, and cases there cited; Law Library, vol. 38, pp. 338, 342. The defendant under the general issue may show title in himself: 2 Greenleaf's Ev., p. 583, 8 T. R., 403. When a former recovery is given in evidence, it is equally conclusive in its effect, as if it were pleaded by way of estoppel; 1 Greenleaf's Ev., 635, and note, and p. 636; 10 Wend., 82, 84; 4 Phil. Ev., pp. 31, 32, up to 35. Such is the rule in Virginia and Maryland: Brockway v. Kinney, 2 John., 210; Gardner v. Buckbee, 3 Cow., 127; Shafer v. Stonebreaker, 4 Gill. and John., 345; 7 Cranch, 565; 8 Wend., 21, 43, 45. To show that same matter was in issue in both cases: 5 Conn., 550. A judgment will not he reversed because the court has given a mere abstract legal proposition, or because the jury found against the weight of evidence: Corbin v. Shearer, 2 Gil., 483; Pate v. The People, Ibid, 681; Granger v. Warrington, Ibid, 310; Bates et al. v. Bulkley, 2 Gil., 394. Ancient reputation and possession, in regard to boundaries of streets in a town, are entitled to more respect in deciding on the boundaries of lots than any experimental survey that may afterwards be made: Ralston v. Miller, 3 Rand., 44. Treat, C. J. In March, 1848, Hahn brought an action of trespass quare clausum fregit against Ritter. The latter pleaded not guilty and liberum tenementum. The case resulted in a verdict and judgment in favor of Ritter. In June, 1849, Hahn brought another action for trespass on the same premises. The declaration contained two counts; in the first, the acts complained of were laid as committed before the first action was commenced; in the second, as committed after the bringing of that action. Ritter pleaded liberum tenementum to both counts, the former recovery to the first count, and not guilty to the second count. The proceedings in the former action were read in evidence on the trial. The court, at the request of Ritter, charged the jury "that if they believe from the evidence that the former suit was brought for the same identical trespass for which this action is brought, and that the title to the land was then distinctly put in issue by the parties, they must find for the defendant." The verdict and judgment were for Ritter, and Hahn brings the case into this court. It is a general rule in relation to actions for torts, that matters in discharge or justification of the action, must be specially pleaded, and cannot be given in evidence under the general issue. A former adjudication of the same cause of action, falls directly within this principle. It is distinctly held in the action of trespass, that a former recovery must be specially pleaded, and cannot be insisted upon under the plea of not guilty: 1 Chitty's Pl., 10th Am. Ed., 506; Coles v. Carter, 6 Cowen, 691. Apply this rule to the present case, and the instruction was clearly erroneous. Ritter only relied on the former adjudication as a bar to a recovery on the first count of the declaration. The proceedings in the first action, were only admissible in evidence to sustain the plea to that count. The jury had no right to take them into consideration, in determining the issues on the second count. The instruction should therefore have been restricted to the first count. It was erroneous, when applied to the whole declaration. But, if specially pleaded to both counts, the recovery in the first action, constituted no defense to the acts committed after that action was commenced. The finding in that case was general. It may have been for the defendant on the issue of not guilty. But, if on the other issue, it did not necessarily determine the question of title to the close, further than at the time of the commission of the acts complained of. The plea of liberum tenementum, in the former action, simply alleged that the locus in quo was the close of the defendant. It may have been his close when the trespass in that suit was committed, and yet his rights therein may have wholly determined before the suit was tried. The plaintiff may have had no interest whatever in the premises, prior to the bringing of the first action, and still have acquired an estate in fee simple, before the commission of the second trespass. The judgment of the Circuit Court is reversed, with costs, and the cause remanded for further proceedings. Judgment reversed. ----------------------- (a) Olsen v. Upsahl, 69 Ill., 273, accord. Additional Comments: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881. 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