The authorities cited for the defendant show that the evidence which was rejected was legally admissible, unless the state of the pleadings rendered it incompetent or irrelevant. And it seems to have been rejected because it was deemed inadmissible under the pleadings.
If the defendant’s answer had gone no further than to aver her possession of the close at the time of the alleged trespass upon it, and for more than twenty years previously, the exclusion of the evidence might perhaps have been right. But the answer furthermore avers that the close is the defendant’s soil and freehold. The whole answer therefore sets up as a defence, that the defendant has a freehold estate in the close, and was in peaceable possession thereof for more than twenty years before the alleged trespass was committed. This is a justification, prima facie at least, of the acts complained of by the plaintiff, and entitles the defendant to give the same evidence in defence, which she might have given under the old plea of liberum tenementum. The excluded evidence should therefore have been received. Its effect was for the consideration of the jury.
The plaintiff has made no reply to the defendant’s answer. Whether, for this reason, she would be precluded by the provisions of the practice act from giving evidence, if it exists, of a lease of the close to her by the defendant, and thus showing that this action is maintainable,3 although the defendant has a freehold interest in the close, (1 Chit. PI. 6th Amer. ed. 626, 627,) is a question on which no opinion is now required.
New trial grrnted.