11. THE BODY. New as signments. defendant has pleaded that he published it lawfully, as to members of a committee of the house of commons, and the plaintiff proceeds for a publication to other persons not members of the committee, he should reply, or rather new 4thly. assign, such illegal publication (d). So, in an action for an escape, if the defendant plead a negligent escape and voluntary return, the plaintiff should new assign a subsequent escape (e); and if in case for disturbance of a right of common, by cutting turves, the defendant plead that he cut the turves as servant of the lord of the manor, the plaintiff may new assign that the defendant cut other turves for sale, and not for the use of the lord (ƒ). In the action of replevin, as the plaintiff is bound to show the place in certain where the taking was, it is said there can be no new assignment (g). In the action of assumpsit for goods sold, &c. where the defendant plead a judgment recovered, and the plaintiff has in point of fact obtained a judgment in a former action for goods sold, &c. but for different goods and causes of action, the plaintiff ought not to reply nul tiel record, for in such case he would be defeated by the production of the record; but he should reply that the causes of action mentioned in the declaration were not the same identical causes of action for which the former judgment was recovered (h) (1050). This replication is in some degree analogous in its object and effect to a new assignment, but it will be observed that it is not strictly a new assignment, inasmuch as it consists of a traverse of a material allegation in the defendant's plea. *In point of form there are two modes of introducing the matter new as- [*673] Form of signed. If the plaintiff' traverse the plea as well as new assign after framing New asthe replication to the plea as in ordinary cases, the form runs thus (i), "And signment. the said plaintiff further saith, that he issued his writ against the defendant, and declared thereupon, not only for the said several trespasses in the said second plea mentioned, and therein attempted to be justified, but also for that the defendant, on, &c." (stating the matter new assigned)(k); but if the plaintiff merely new assign, then the form is thus, "And as to the said plea of the defendant by him secondly above pleaded, the plaintiff saith, that he, by reason of any thing by the defendant therein alleged, ought not to be barred from having and maintaining his aforesaid action thereof against the defendant, because he saith, that he issued his writ against the defendant, and declared thereupon, not for the said supposed trespasses, in the introductory part of the said second plea mentioned, but for that the defendant, on, &c." (stating the matter new assigned) (1). A new assignment being in the nature of a new declaration, should be equally certain as to time, place, and other circumstances (m), and it must not be negatively, that the trespasses mentioned (i) See forms, post, vol. iii. et seq.; and (1) See forms, post, vol. iii. et seq.; 2 Co. (m) Com. Dig. Pleader, 3 M. 34; Vin. Ab. Trespass, U. a, 4, pl. 13; Bac. Abr. Trespass, I. 4, 2; Dyer, 264 a. (1050) Vide Snider and Van Vechten v. Croy, 2 Jolins. Rep. 227. 11. THE BODY. 4thly. New assignments. in the plea were not the same as those for which the plaintiff complained, but some other trespasses must be shown (n). If the new assignment be in another close or place, the plaintiff should give the place a name, or otherwise describe it with some certainty (o), and which, on not guilty thereto, must be proved as stated (p); and if it be in the same close, it is said the particular spot should be set forth in such a manner, that a plain difference may be per[ *674] ceived between the place newly assigned and that mentioned *in the plea (q); but where a right of way is pleaded, it is usual to new assign extra viam, without showing in what particular part of the locus in quo (r). Conclu ment. When the defendant justifies under a right of common, or way, &c. at particular times of the year, or in particular parts of the close, &c. the plaintiff may new assign that the trespasses were committed, “ at other times, and os other occasions, and for other and different purposes than those mentioned in the plea ;" or that the defendant, "in a greater degree, and with more force and violence than was necessary for removing the supposed obstructions to the said supposed way, &c. cut down the gates, &c." (s). The matter new assigned must be consistent with the declaration, and not varying from or more extensive than the trespasses therein enumerated (†), or those which the defendant has answered in his plea; for a new assignment is merely to avoid the effect of the plea, which can only operate upon the trespasses thereby admitted (u). It should also only be of material matter, and therefore, if the plea set up a right of way, or common, &c. at all times of the year, the new assignment should not be, that the defendant "at other times, &c." time in that case being immaterial; and in an action of trespass against several, if some of the defendants suffer judgment by default, and the others plead a justification, the new assignment should be as to all the defendants, and not merely to those who have pleaded, for that would be a departure (x). The conclusion of a new assignment must be with a verification, in order sion of new that the defendant may have an opportunity of answering it (y). After stating assignthe matter newly assigned, the form usually is thus: "and which said trespasses above newly assigned, are other and different trespasses than the said trespasses in the said second plea mentioned, and therein attempted to be justified; wherefore, inasmuch as the defendant hath not answered the said trespasses above newly assigned, the plaintiff prays judgment, and his dama[ *675] ges by him sustained, on occasion of the committing thereof, to be adjudged to him, &c." (z) And though with respect to the latter part of this conclusion, it has been said that it would be more correct if it were to stop at the (n) 3 Leon. 92; post, vol. iii. notes. (p) Com. Dig. Pleader, 3 M. 34; Vin. (q) See note (m), supra; Vin. Ab. Tres- Sed vide Vin. Ab. Tres. pass, U. a, 4, pl. 3. (s) See forms, post, vol. iii. As to replying this, see ante, 624, 625, 668, n. (m). (t) Vin. Ab. Trespass, U. a, 4, pl. 19; Winch. 65; 4 Leon. 15, 16; 10 East, 79, 81; 7 Taunt. 156; ante, 667, 668. (u) 10 East, 80. (x) 2 Leon. 199; Com. Dig. Pleader, F. 11; post, 682. (y) Bac. Ab. Trespass, I. 4, 2; Lutw. 1401; 1 Saund. 103. (z) See the form, 2 Co. 6 a, 18 b; Rast. Ent. 608; post, vol. iii. and 9 Wentw. Index, cxxiv. II. THE BODY. wo-ds, " et hoc paratus, est verificare," without praying judgment against the defendant, for not answering the trespasses newly assigned, when it was impossible he should answer it before it was alleged (a); yet it may be observed 4thly. that matter newly assigned is always considered as having been already stated New assignments. in the declaration, and consequently the defendant might have answered it if he had thought fit to plead to the injury really intended to be complained of. new as signments. A new assignment being, as already observed, in the nature of a new dec- Pleas to laration, and dismissing the previous pleading from consideration, so far as respects the matter newly assigned, the defendant should plead to it precisely as to a declaration (b), either by denying the matter newly assigned, by the plea of not guility, &c., (c)(1051) or by answering it by a special plea of matter of justification (d), and he may plead several pleas (e). As the plaintiff avers that the trespasses newly assigned are other and different to those mentioned in the plea, he waives or abandons the trespasses which the defendant has justified, and it is not necessary to plead over again to the new assignment any matter of justification necessarily covered by the plea; as if common of pasture at all times of the year be pleaded, and the plaintiff new assigns that the defendant entered at other times, the right of common of pasture cannot be set up in the plea to the new assignment (f). So the defendant cannot plead to the new assignment, that the place (g) or trespass, &c. mentioned therein, is the same as that mentioned in the plea; and if in truth they are the same, the defendant should plead not guilty, and take advantage of it in evidence, as the plaintiff would be estopped from proving any trespass in the same place, &c. (h) For the same reason the defendant *cannot justify at a different [ *676] place, and traverse the place mentioned in the new assignment (i); and when the plaintiff traverses the plea, as well as new assigns, the defendant cannot, as to the matter answered in the plea, plead new matter, but must stand by his plea (k). If the new assignment be bad, the defendant should demur, and it may be frequently necessary so to do, if the defendant wish to avail himself of his plea of liberum tenementum (1). In an action of trespass quare clausum fregit, where the plaintiff new as- Suffering signs, it often becomes prudent to suffer judgment by default to the new as- judgment by default signment (m), or perhaps since the stat. 3 & 4 W. 4, c. 42, sect. 21, permit- to new asting a defendant by leave of a judge, in some actions, to pay money into Court, signment. Effect as (a) Freem. 238. (b) Gouldsb. 101; Moore, 540; Cro. Eliz. 590, S. C. (c) See the form, post, vol. iii.; Bro. Ab. Trespiss, pl. 359. (d) Bro. Ab. Trespass, pl. 168, 203, 359. (e) Bac. Ab. Trespass I. 4, 2. (f) Gouldsb. 191; Moore, 540; Cro. Eliz 590, S. C.; and see the cases in note (h) infra. (g) Moore, 460; Jenk. 6th Cen'. 265. (h) Supra, note (f); Vin. Ab. Trespass, U. a, 4, pl. 10; Bac. Ab. Trespass, I. 4, 2; to costs 1 Saund. 299 c, 115; Cro. Eliz. 355, 493; &c. (i) Bro. Ab. Trespass, pl. 168; Vin. Ab. (k) Cro. Eliz. 812; Bac. Ab. Trespass, I. 4, 2. (1) 2 Bing. 49; Dyer, 23 b. pl. 147. (m) See 1 Saund. 300, n. And see the note of the editors of the fifth edition, in which the cases on this subject are all collected, and the result very perspicuously stated. And see Tidd, 9th edit. 966, 973. (1051) Vide Pratt v. Groome, 15 East's Rep. 235. II. THE BODY. 4.hly. New as signments. to do so, and plead such payment. This arises from the provisions of the statute 22 & 23 Car. 2, c. 9, s. 136, as to costs. It has been determined, upon the construction of that statute, that a certificate to entitle the plaintiff to full costs, where the damages are under 40s., is unnecessary, whenever it appears from the whole record that the freehold did or did not come in question (n). And it has been held in consequence, that when there is a special plea and a new assignment, and the plaintiff recovers upon the new assignment, he will in general be entitled to full costs, whether the special plea be not traversed, or whether it be traversed and found for the defendant (o). This often renders it dangerous to plead to the new assignment, and particularly so when the defendant has a good case upon his special pleas, since, notwithstanding he may succeed on his pleas, and thus fully answer the whole matter substantially in dispute, the plaintiff will be entitled to the general costs of the action, if he can prove any trifling act of excess on the part of the defendant. In cases of this description, it is therefore often expedient to suffer judgment by default to the new assignment, and thus at the trial to confine the matters in dispute to those which are answered by the pleas; for although this mode of proceeding enables the plaintiff to obtain costs, as upon a judgment [ *677] by default, if he think *proper, yet if he proceed to trial on the special plea, and fail, the defendant will be entitled to the general costs; for the plaintiff might have entered a nolle prosequi as to that plea, and assessed his damages on the new assignment before the sheriff, and consequently need not have proceeded to trial (p). The defendant must, however, take care that a plea of not guilty be not left entire upon the record, for as the matters newly assigned are considered as virtually contained in the declaration, it has been held that the effect of a general plea of not guilty to the whole declaration is to prevent the plaintiff from availing himself of the judgment by default to the new assignment, by assessing the damages before the sheriff, and to compel him to go to trial notwithstanding such judgment (q). The defendant, therefore, where he has originally pleaded the general issue, and is afterwards desirous of suffering judgment by default to a new assignment, should, when he suffers such judgment, enter a retraxit of the plea of the general issue, as far as the same relates to the trespasses newly assigned. It is justly observed that there is nothing incongruous in this, since the decisions upon this point have proceeded entirely upon the ground that the trespasses newly assigned are virtually included in the declaration (r); And it has accordingly been decided, that where the defendant adopted this course, and afterwards obtained a verdict upon one issue going to the whole cause of action, (exclusive, of course, of the trespasses newly assigned), he was entitled to the costs of the trial (s). (n) 2 Hen. Bla. 2; id. 341; 7 T. R. (o) 2 Lev. 234; 2 Stra. 1168; 1 East, (q) 3 B. & B. 117; 5 Bing. 196; 2 M. & (r) 1 Saund. 300 b, n. (ƒ), 5th edit, (s) 9 B. & C. 613; and see per Best, C. J., 5 Bing. 199. The form of such retraxit, as given in 1 Saund. 5th edit. ut supra, is as follows," and the said defendant, relinquish ing his said plea by him first above pleaded to the said declaration, so far as the same plea relates to the said trespasses above newly assigned, says nothing in bar or preclusion of the said trespasses above newly assigned; wherefore, &c." tion to a To the plea or pleas to the new assignment, the plaintiff should reply pre- Replica cisely as to pleas to a declaration, and if the plea be such as would require a new plea to a assignment, if pleaded to a declaration, the plaintiff should again new assign new asto such plea (1). signment. [ *678 ] 11. THE CONCLU SION. *The Conclusion of replications, in particular instances, has already been pointed out (u). We have seen that every replication must, in point of form, conclude either to the country or with a verification (r). We have also shown when or not a prayer of judgment is or not essential or advisable (y). It may here suffice to observe, that when a replication denies the whole of the defendant's plea, containing matter of fact, it should conclude to the country, thus : "and this he the plaintiff prays may be inquired of by the country, &c." (z) And it is an established rule applicable to every part of pleading, subsequent to the declaration, that when there is an affirmative on one side, and a negative on the other, or vice versa, the conclusion should be to the country (1052), although the affirmative and negative be not in express words, but only tantamount thereto (a). It may also be laid down as a safe rule, that where a defendant cannot take any new or other issue in his rejoinder than the matter he had before pleaded without a departure from his plea, or where the issue on the rejoinder would be the same in substance as on the plea, the plaintiff should conclude to the country (b); and it is not material in this case, whether the replication contain a formal traverse, for where a traverse comprises the whole matter of the plea, the replication may still conclude to the country (c)(1053). It suffices that there is a good traverse of the substance of the plea (d). In debt on bond for not accounting, the defendant pleaded that he did account. Replication that defendant received £2000, for which he did not account. Rejoinder that he received it from particular persons, and that he accounted for the same. It was held that a surrejoinder that the monies mentioned in the replication, and those mentioned in the rejoinder, were different monies, might conclude to the country (e). This conclusion is also proper, where a particular fact is selected and denied, without any inducement or formal trraverse (f). But the plaintiff is still at liberty, where he only denies one of several facts, and not the whole substance of the plea, to commence his replication with an inducement, and formally to traverse the *particular [679] (t) 1 Saund. 299 c. See the forms referred to, in 9 Wentw. Ind.; 2 Co. 6, and post, vol. iii. (u) Anie, 630 to 633, and see, as to the conclusion in general, Com. Dig. Pleader, F. 5, E. 32; Co. Lit. 303 a. All affirmative pleadings which do not conclude to the coun try, must conclude with a verification, Steph. 2d ed. 485. Origin of the rule, id. 486. (x) Ante, 630, 631. (y) Ante, 634. (z) 1 Saund. 103; 1 Burr. 316; 2 Id. (c) Salk. 4; 1 Saund. 103 a, b. (e) 7 B. & C. 809. (f) 2 T. R. 349; 1 Salk. 4; 7 Lord Raym. 641; 1 Saund. 103 a, b; Sayer, 234. (1052) Vide Labagh v. Cantine, 13 Johns, Rep. 274. Bindon v. Robinson, 1 Johns. Rep. 516. (1053) Vide Manhattan Company v. Miller, 2 Caines' Rep. 60. Snider v. Croy, 2 Johns. Rep. 428. Patcher v. Sprague, Id. 452. Bindon v. Robinson, 1 Johns. Rep. 516. VOL. I. 79 |