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WILLIAM GOULD & SON,

LAW BOOKSELLERS AND PUBLISHERS.

1868.

Entered according to act of Congress, in the year eighteen hundred and sixty-eight,

BY WILLIAM GOULD & SON,

In the Clerk's Office of the District Court of the Northern District of New York

Rec Nov. 9. 1868

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LAB SCHOOL

LIBRARY

PRACTICE REPORTS.

SUPREME COURT.

ISAAC HEATH agt. WALTER BARMOUR.

Where the plaintiff brings an action in a justice's court, and complains that the defendant wrongfully broke and entered his close, and then and there, at the times named, committed certain trespasses and did certain acts, and the defendant justifies all the acts complained of, on the ground that the locus in quo was at the time a public highway, &c., the justice should dismiss the action upon the question of title.

But if the plaintiff, on continuing the action in the supreme court, recovers a verdict for any sum, for trespasses committed outside of the alleged highway, he is entitled to costs, although the defendant succeeds in justifying all his acts committed upon said highway. (This agrees with Hall agt. Hodskins, 30 How. 15.)

Chautauqua Special Term, January, 1868.

MOTION by plaintiff, by way of appeal from adjustment of costs by the clerk of Chautauqua county. The original action was in a justice's court. The plaintiff alleges in his complaint that the defendant wrongfully and unlawfully broke and entered the plaintiff's close, in the town of Gerry, in the county of Chautauqua, on or about the months of May, June, July, August and September, in the year 1862; also in the months of April, &c., 1863, and so as to 1864, 1865 and 1866; and the defendant, during each and all of the said months and years, being wrongfully and unlawfully upon the premises of the said plaintiff, in the town of Gerry, in the county of Chautauqua, did then and there, by himself, his agents and servants, with teams, horses, oxen, wagons, plows and scrapers, wrongfully and unlawfully excavate the said premises of the plaintiff, and did then and there wrongfully and unlawfully cut timber of the plaintiff, upon his premises aforesaid, and destroy crops then and there growing, pull

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