This is an action of trespass quare clausam fregit. There is but one count in the declaration and but one trespass charged in it, viz: that the defendant with force and arms broke and entered a certain close of the plaintiffs, situated in the town of Romney, in the county of Hampshire ; and the usual alia enormia is added.
On the trial two bills of exceptions to the ruling of the court were taken by the defendant. The first is for allowing the plaintiffs to give evidence, under the declaration, of the pulling down of a certain house of the plaintiffs, which the *197court certifies in the bill of exceptions, constituted the act of breaking of said close. It is insisted by the counsel for the plaintiff in error that it was not competent for the plaintiffs, under the general charge in their declaration of breaking and entering the plaintiffs’ close and the alia enormia. clause, to give evidence of the destruction and value of the house, inasmuch as no notice of such a demand was given in the declaration. That the pulling down of the house was not put in issue by the declaration, and that if the plaintiffs had intended to do so they should have averred it in the declaration, either as a distinct trespass or by way of aggravation or matter of special damage. And it is further insisted that nominal damages only for an unauthorized entry on the plaintiffs’ close can be recovered in this action.
Without conceding or disputing the correctness of these positions, it seems to me, the question of damages does not properly arise in the case and is certainly not involved in this exception. On the contrary the only question arising upon it is whether it was proper to allow this evidence to go to the jury under the issue made, for any purpose. What is that issue? The averment is that the defendant broke and entered the plaintiffs’ close, situated in the town of Romney, in Hampshire county. There is no demurrer to the declaration, but these averments are traversed and put in issue by the plea of not guilty.
It is very clear, therefore, that the plaintiffs, under this issue, had a right to show the breaking and entering of any close owned by them in the town and county aforesaid. And as tending to show the character and manner of the breaking and entry upon the close and the injury sustained by the 'plaintiff by reason of such breaking and entry, I think the evidence was admissible, and that the court did not err in permitting it to go to the jury for the purpose. 4 Rob. Prac., 595; Gilmore, 221; Baily vs. Butcher, 6 Grat., 144.
The question of damages, as I have before remarked, cannot be affected by this testimony, for the reason that no instructions were asked touching that question, and the mo^ *198■tion for the new trial is based not upon the ground that the verdict was contrary to the evidence or the damages excessive, but because of misdirection to the jury, and surprise and after discovered evidence. The second exception taken to the opinion of the court is. for overruling the motion for a new trial. This motion, as before stated, is based upon the ground of misdirection to the jury and the alleged discovery of new evidence since the trial.
The misdirection complained'of is the refusal of the court to give the instruction asked for by the defendant, set out in his second bill of exception, and the giving in lieu thereof ■the instruction as modified by the court. But in this I think the court committed no error. The instruction moved by the defendant asserts that the plaintiffs could not maintain their action, unless they were in the actual possession of the house and lot at the time the trespass was committed.
This position, however, is clearly untenable. For, however it may have been formerly doubted, it has been long and well established that trespass to real estate may be maintained upon constructive as well as actual possession, and that a party having the title and right of possession, in the absence of any adverse possession, by legal intendment, has such constructive possession in law and may maintain trespass for an injury done to such real estate.
I think, therefore, that the instruction given by the court, which is in substance the same as that allowed by the defendant, except the term possession is substituted for actual possession, correctly propounds the law, and there was no error in giving it.
The affidavits filed by the defendant, as an additional ground for a new trial, on account of the discovery of new evidence since the trial, it seems to me, are wholly insufficient for that purpose. They assert in substance that the defendant, since the trial, for the first time, has discovered that a certain William Harper, of Dubuque, Iowa, will give material evidence, such as will enable him, as he thinks, upon sundry grounds to make a successful defence to the suit; also that he was surprised on the trial by the evidence *199introduced by the plaintiffs as to the pulling down of the house, and that by filing special pleas under a new trial he can justify the trespass, and, as he verily believes, defeat the action, and the witness by whom he can prove these facts is a non resident of the State, &c. There is no averment, however, that he used due diligence, or any diligence, to discover and procure the testimony before the trial, nor does he disclose what facts he can prove nor by whom (except one) he can prove them.
It is very clear, therefore, that the court did not err in refusing a new trial on the basis of these affidavits.
I am of opinion to affirm the judgment with costs and damages.
The other judges concurred.Judgment appirmed.