BODY. 4tlily. New assign ments. 1. THE often render it necessary that the plaintiff should re-state with greater precision and particularity (1), the real cause of action intended by his declaration; and such re-statement was termed a new assignment. This repetition of the real cause of action occasioned evasive and expensive pleading, and on that account the Reg. Gen. Hil. T. 4, W. 4, reg. V.† directed that in declaration in trespass quare clausum fregit, the name of the close or its abuttals, or other particular description, should be added, by which means the necessity for, and utility of a plea of liberum tenementum has in a great measure been avoided. When a ment is ne It is a general rule, that where the defendant has committed several new assign trespasses either to the person, or the personal or real property of another, cessary in some of which were justifiable, and others not, and the action is brought for those trespasses which were not justifiable, but the defendant by his plea answers only those which were so, then the plaintiff should new assign (ƒ). general. In case of trespasses to the person (g). Thus, in action of trespass for an assault, if there have been two assaults, one justifiable, on the ground of it having been committed in selfdefence and the other not, and the declaration contain only one count for an assault, and the defendant plead son assault demesne, the plaintiff should new assign the illegal assault (h). In a case of this description we have seen that the defendant cannot, with any degree of certainty, collect from the declaration which of the two assaults the plaintiff means to proceed for, and as the plaintiff would be allowed to prove either under the declaration, it becomes a matter of necessity that the defendant should put his justification upon the record, or otherwise the plaintiff might recover at the trial on proof of the very assault which was legally justifiable. The defendant is therefore, by the rules of pleading, allowed to suppose that the action was brought for the latter assault, and he consequently pleads son assault demesne. Now, in such a case, the plaintiff cannot safely traverse this plea, for if he were to do so, and the justification were to be proved, the defendant would be entitled to a verdict. The reason of this is, that the general terms of the declaration are confined by the effect of the plea, and the replication. The plea admits of the fact of an assault having been committed, and then gives a more minute and circumstantial account of it by showing how it originated, and what circumstances rendered it, as the defendant conceives, justifiable. By traversing the plea the plaintiff is held to admit that the defendant is right as to the particular assault com[*627] plained of; for if he were allowed to traverse the plea, and afterwards to prove an assault totally unconnected from all circumstances approaching to justification, it would be an act of gross deception towards the defendant. The issue is therefore confined to such an assault as is described in the plea, if any such has actually taken place, viz., an assault committed under some circumstances of provocation, which the defendant asserts amount to a legal excuse, but which assertion the plaintiff denies. In order to avoid this result, and to enable the plaintiff to give evidence of (f) 1 Saund. 299 a, n. 6; 1 Ld. Raym. 465; 2 Wils. 3, 4. (g) The plaintiff must in general reply excess, ante, 492, 493; 2 Crom. M. & Ros 338. (h) Id. Ibid.; 2 Saund. 5 e, 5th ed. (1) Troup v. Smith, 20 Johns. 43. 11. HE BODY. 4thly. New assign that assault which was wholly destitute of excuse, it is necessary that he should not traverse the defendant's plea, but correct the error, or affected error into which the plaintiff has fallen, by a new assignment, viz. by stating that he brought his action not for the assault alluded to, and answered ments. by the plea, but for another and a different assault committed on a different occasion. The same observations will be applicable to cases where the defendant justifies on assault or other trespass under process, &c., and the plaintiff relies on an assault or trespass committed before the issuing of the writ, or after the return of it, or after the plaintiff in the second action was discharged by the plaintiff in the first action, or after a voluntary escape on process in execution (i). If son assault demesne has been pleaded, and the evidence will establish that the defendant's battery of the plaintiff was excessive, and more than was necessary for self-defence, it seems that according to the latest decisions the plaintiff may under a de injuria, and without a special replication or new assignment give in evidence the excess (j) (1). ↑ But it has been decided that a plaintiff cannot reply de injuria, and also new assign that the defendant committed the trespasses with more violence than was necessary, such pleading being demurrable for duplicity, though if not demurred to, plaintiff may proceed on either on the trial (k). In like manner in trespass for injuries to personal property, where there Trespasses have been two or more injuries to the same property, or two takings of to personal similar property, a new assignment will become necessary in cases analo- property. gous to those we have noticed with respect to assaults (). Thus, where in an action of trespass for taking away the plaintiff's oaks, the defendant pleaded that the oaks were standing in a certain close, situate in the manor of A. the freehold of B. who felled them, and justified taking them away by the command of B., it was held that the plaintiff might new assign that the oaks were growing in his own close within the manor of W., and were other oaks than those mentioned in the plea (m). And in transitory actions of this nature, not only the place but the time may be made material by the plea, *and the plaintiff must then, when it becomes necessary, new [*628] assign the trespass at another time (n). But if to trespass for removing goods, and casting, flinging, or throwing goods out of a barn, the plea only justify the removal, and except the casting, flinging, and throwing the goods out of the barn, no new assignment is necessary, and plaintiff may recover for any damage done by the excepted act if proved under the general issue (o). property. And in trespass for an injury to real property where the defendant jus- Trespasses tifies under a right of way, &c. if the defendant has used the way in a dif- to real ferent manner from what he was entitled to do by virtue of the prescription or grant, the plaintiff must new assign (p). So, if in an action for trespasses to the plaintiff's land, committed with cattle, the defendant prescribe (i) Saund 249, note 6, and see 2 Campb. 175; 1 Bing. 317; 3 Taunt. 525, 526. (1) Ante, 587, n. (e); Reece v. Taylor, 1 Har. & Wol. Rep. 15. (k) Thomas v. Marsh, 5 Car. & P. 596. (1) Ante, 626. (m) 1 Saund. 300 a. (n) 1 Saund. 300 a; 2 Ld. Raym. 1015. (p) 1 T. R. 560, 562. (1) Hannan v. Edes, 15 Mass. 347. II. THE 4thly. New assign ments. After plea of liberum tenemen tum. for commonable cattle levant and couchant, and allege that the cattle mentioned in the declaration were such cattle, and in truth the defendant has put on such cattle, and also other cattle not levant and couchant, the plaintiff should new assign, stating that he brought his action for depasturing the common with other cattle, and should not traverse the levancy and couchancy; for upon such a traverse it would appear to be sufficient to show any thing which excuses the trespass, and the number mentioned in the declaration would not be material (q). And it has been held that if in an action for breaking and entering the plaintiff's house, land, &c. the defendant plead a license which the plaintiff had revoked before any of the trespasses for which the action was brought were committed, or which was confined to some particular act, and the defendant exceeded, the plaintiff must state the revocation or excess in a new assignment. (r). In all the preceding instances in which a new assignment may become necessary, it will be observed the very circumstance of the new assignment supposes that two or more trespasses, or acts apparently amounting to trespasses, have taken place. The plaintiff declares in the new assignment that he brought his action, not for the trespass admitted and justified by the plea, but for another and different trespass committed upon another and different occasion, and which the defendant has not answered by his plea ($). And in general the effect of the new assignment is, to admit that one of the assaults, or apparent trespasses, has been justified; and it ope[*629] rates as an entire waiver or abandonment of that particular trespass (t). But it may often occur in trespass to real property that a new assignment will become necessary on a different ground. We have seen that in declaring in trespass for an injury committed by breaking and entering the plaintiff's close, it was unnecessary to give either the name or abuttals or any specific description of the close, and that it was sufficient to state the parish or place in which it is situate (u). Under that general description it was obvious the plaintiff would be entitled to give evidence of any act of trespass committed by the defendant in any close of the plaintiff within the particular parish or place mentioned in the declaration; and the consequence of this was, that the defendant was under some difficulty in knowing in what part of the particular parish or place the alleged trespass was committed; and unless he could obtain a specific description of the particular close, he would not know what he was to come prepared to dispute at the trial. To remedy that inconvenience, we have seen that the defendant was permitted to plead the plea of liberum tenementum, or as it was called the common bar (x). This plea the plaintiff can seldom safely traverse if the declaration did not describe the close by name or abuttals, for if he did so, and the defendant could prove that at the time of the supposed trespasses he had any land within the particular parish or place laid in the declaration, the issue must be found for him (y) (1); and it was (q) Willes, 638; 2 Saund. 346 c. (r) See 3 Campb. 513; 1 Saund. 300 c, d, 4th ed. But this, it appears, only applies to those cases in which the declaration is confined to a single act of trespass, or in which the defendant confines the general terms of the declaration, by specifying the particular acts to which the license extended in his plea. See post, 631, 11 East, 451. (s) See the usual forms, post, vol. iii. (t) See 16 East, 82, 86; 1 Saund. 299 a, n. 6; 2 T. R. 176, 177; per Cur. 10 East, 80; post, 632, 633. (u) Sce ante, 394. It seems to have been suf ficient, to name the county only, id. (r) See ante, 503; 11 East, 51. (y) 2 Taunt. 156; per Lawrence. J. 7 T. R. 335; Saund. 299 b, c; Com. Dig. Fleader, 3 M. 34; 1 B. & C. 489; 2 D. & R. 719, S. C. '1) Ellet v. Pullen, 7 Halst. 357. BODY. assign perhaps reasonable that it should be so, for the object of the plea of free- II. THE hold in such a case being to compel the plaintiff to give a more particular description of the particular close alluded to in his declaration, in the event 4thly. New of his declining to give the required information, he was held to admit that ments. the defendant was right as to the particular place, and the only issue raised by the replication was, whether the defendant could prove that he had any close answering the description contained in his plea. If plaintiff therefore was not able to traverse the plea of liberum tenementum with safety, he was driven to a new assignment, in which he stated the place with proper exactness (2). This was usually done by setting forth the name and abuttals of the close, and in case the defendant has given any particular description to the close mentioned in his plea, the description of the plaintiff's close in the new assignment must be such that a plain difference may be perceived between the place so newly assigned and that mentioned in the plea (a) (2). It may be observed with respect to new assignments after the plea of liberum tenementum, that whenever *the de- [ *630] fendant possesses any close which he describes in his plea, and alleges it to be his soil and freehold, the effect of a new assignment is entirely to exclude the consideration of any trespass committed within such close. The plaintiff in his new assignment avers that the place newly assigned is another and different place from that mentioned in the plea, and he hereby waives and abandons any claim in respect of trespasses committed in the latter place. And the same principle supports the position, that where the defendant in his plea specifies a particular trespass, and justifies it, and the plaintiff new assigns in respect of a different trespass, the former trespass is considered to be entirely abandoned (b). And as in the latter case the new assignment supposes two different trespasses, so in the former it supposes two different places; for, as we shall see more particularly hereafter, whenever the plaintiff and defendant are agreed as to the particular trespass or place, and there appears sufficient upon the record to ascertain and identify it, a new assignment is unnecessary and improper (c). necessary also to new as The cases of new assignment we have hitherto considered, are those in In what which the trespass complained of, or the place in which it was committed, cases it is have been wholly mistaken or evaded by the defendant in his plea. And to reply to in these cases the plaintiff merely new assigns, without taking any other part, and notice of the plea than stating that it was wholly foreign to the true ground of complaint, and that it does not at all meet the declaration. But the sign. same cause, viz. the generality of the declaration, which, as we have seen, often gives rise to a plea entirely foreign to the real cause of action, may sometimes have the effect of producing a plea whereby some of the trespasses which the plaintiff complains of are answered, but others are left entirely unnoticed. Thus, where the plaintiff complains in his declaration that the defendant on a certain day, "and on divers other days and times between that day and the commencement of the action," committed trespasses in the plaintiff's close, the plaintiff will be at liberty under this al (z) 2 Salk. 453; 6 Mod. 117; Willes, 223; 2 Bla. Rep. 1089; 1 Saund. 299 b, note. (a) Dyer, 264; Cro. Jac. 594; Cro. Eliz. 365, 492; Bro. Tresp. 203; 1 Saund. 299 c. 300 c. 5th ed.; see the form, post, vol. iii. (b) See 15 East, 235; 16 id. 82, 86; 1 Saund. 299 c. 5th edit. (c) Post, 632, 633; 1 Saund. 300 b, note, 5th ed. (2) Hollock v. Robinson, 2 Caines, 233; Ellice v. Boyer, 8 Wend. 503. BODY. assign ments. II. THE legation to prove any number of acts of trespass committed by the defendant within the space of time mentioned, in any part of the close. 4thly. New Now it may happen that the defendant claims a right of way, or common, &c. in the plaintiff's close, and as he has no means of telling from the declaration whether the plaintiff's cause of complaint is confined to acts committed in the exercise of such right of way or common, &c., or whether any other acts of trespass are complained of, he is allowed to assume the former, and may consequently justify under such alleged right. In this case, if the plaintiff dispute the existence and validity of the right [*631] of way or common, he will of course traverse *the defendant's plea. But the effect of such traverse without any new assignment, will be to confine the issue to the question of the right of way, &c. as pleaded by the defendant; and if this should be found in the defendant's favor, he will be entitled to a verdict (d). If therefore the defendant has committed any acts of trespass, which, supposing him to be entitled to the alleged right of way, &c., would not be justified by it, it will be necessary for the plaintiff not merely to traverse the plea, but also to new assign in respect of such other trespasses, and aver in his new assignment that the action was brought as well for the trespass or trespasses mentioned in the plea, as for the trespasses newly assigned (e). Thus, where the plaintiff complained in the declaration that the defendant had committed trespasses in his closes, and the defendant pleaded that one of the closes was called Blackacre, and the other Whiteacre, and pleaded that they were his freehold, the plaintiff traversed that Blackacre was the defendant's freehold, and new assigned in respect of trespasses in twenty acres other than Whiteacre; upon this it was objected, that by new assigning, the plaintiff had waived the former pleadings as to all, and therefore ought to have omitted the traverse; but the Court disallowed the objection, and held that as the defendant had pleaded in respect of some of the places in which the plaintiff intended to lay the trespass, the plaintiff was at liberty to answer as to that part, and that the defendant was not entitled to waive his plea thereto and plead to all de novo (f). So where an action is brought for fishing in a certain river, being the plaintiff's fishery, and the trespass intended by the declaration is for fishing to the extent of two miles and upwards; if the defendant plead that he is seized in fee of ten acres adjoining the river and prescribes for a free fishery in the river along the side of the ten acres, the plaintiff ought not merely to traverse the prescription, and go to issue upon it, because at the trial he would not be permitted to give evidence of any act of fishing by the defendant, either above or below the ten acres, for the question would be confined to the prescription only; but the plaintiff should also new assign and state that the trespass complained of was not only for fishing in the river adjoining the ten acres, but also above and below the same, and then the defendant will be under the necessity of giving some answer to the whole trespass (g). In this case it has been observed, that without a new assignment the plaintiff would run a great risk of being tricked; for if the prescription were found for the defendant, he would succeed in the action, though guilty of almost the whole trespass for which the action was brought (g). Upon the same principles, in the case before (d) 1 Saund. 300 b, c, 5th ed.; Campb. 175, 176. and see (e) 1 Saund. 300 b. c. 7 B. & C. 346; 9 D. & R. 897, S. C. 9 B. & C. 613. 4 M. & R. 290, S. C (f) Cro. Eliz. 812, and see 7 B. & C. 346; 9 D. & R. 897, S. C. (g) 1 Saund. 300 c, 5th edit. |