—It is no small evil in our practice, that its looseness induces counsel to forget the pleadings, and make out their case by,, evidence according to their fancy and without regard to the issue. Hence useless disputation, waste of time and perplexity, producing exceptions to evidence eventually' found, as in this case* to have no relation to the cause. The issue seems to have been tried under a common misconception of its nature. The action is trespass quare clausum fregit, the pleas liberum tenementum and not guilty. The plaintiff proved the trespass and gave evidence of possession, which, *378if believed, disposed of the plea of not guilty, by which it was put in issue; and being a title against all but the rightful owner, it was sufficient in the first instance also for the plea of liberum tenementum. Instead of resting there, however, he proceeded, as in ejectment, to make out title in himself, though nothing is more dissimilar than the position of the parties in ejectment and in trespass on this plea, the plaintiff in the one and the defendant in the other recovering or defending on his own title without respect to the title of the other. The point in dispute was not whether the plaintiff had title, but whether there was title in the defendant, for that was his allegation. Yet the plaintiff undertook to deduce the title to the locus in quo from the patentee of a larger tract, of which it is a portion, to a person as whose property it was alleged to have been levied and sold as one hundred acres. The first proof rejected was offered to show that the locus in quo was not included in the levy, a fact which was immaterial to the issue and which it was not error to exclude.
The next exception was to the rejection of certain proceedings of the orphan’s court, vesting the title of the deceased patentee of the original tract in the defendants; which were properly excluded, because it had been conclusively shown that the locus in quo had been conveyed by the patentee in his lifetime. Finally, the common and proforma exception to the charge that the cause was withdrawn from the jury, is not sustained.
Judgment affirmed.