Appeal from the County Court of San Francisco.

Forcible entry and detainer, tried before the Court without a jury.

The complaint avers: “ That heretofore, to wit, on or about the sixteenth day of March, A. D. 1859, and for a long time prior thereto, the said plaintiff was in the lawful, actual, peaceable and quiet possession of the following described premises, situated in the city and county of San Francisco, to wit: about ten rods square, situated within and comprising the north-westerly corner of that certain piece or parcel of land bounded and described as follows, to wit: ” (the complaint then goes on to describe a tract of land containing one hundred and forty-six acres). “ The said ten rods square being situated from twenty to fifty feet, more or less, south-easterly from the house of defendant, and near the gate aforesaid, and near the junction of the San Bruno turnpike road with the road leading from the city of San Francisco to Hunter’s Point.” Defendant is charged with committing forcible entry and unlawful detainer of said ten rods square.

In the description by metes and bounds a gate is mentioned, through which the Hunter’s Point road passes. The gate is at the junction of the two roads.

It was shown on the trial, that the ten rods square was called the north-easterly, and not the north-westerly corner of the one hundred and forty-six acre tract, and the corner on which the locus in quo is situated is the corner next to defendant’s house and the comer where the trespasses were committed. Between the two corners runs the San Bruno turnpike road. Aside from the variance as to corners, the evidence as to the locus maintained the averments in the complaint.

Plaintiff had judgment below for the possession of the premises as described in the complaint, and for ninety-four dollars treble damages, besides costs. Defendant appeals.