The opinion of the court was delivered by
PjsCK, J.
Under the pleadings and evidence in the case, the county court ruled that if the defendants had proved title to the house in question in Plunkett, by whose command the defendants by their special pleas claimed to justify, and had proved authority [446]*446from Plankett to enter and take possession of the house, and that the defendants did enter under that authority, they were entitled to recover.
It is iusisted on the part of the plaintiff that even if what the court held would entitle the defendants to a verdict was a justification of the entry and trespass upon the freehold, still it was no bar to the recovery by the plaintiff for the unnecessary damage to the plaintiff’s goods, done by the defendants, alleged in the declaration, and which the plaintiff’s evidence tended to prove. The counsel for the defendants claim that the removal of the plaintiff’s goods by the defendants, as set forth in the declaration, is only matter of aggravation, and that the defendants had a' right so to regard it; and hence, whatever justifies the entry upon the freehold, is a full answer to the action. It is true that in actions of trespass on the freehold, where the declaration, in addition to the averment of the breaking and entering the plaintiff’s close, contains allegations of other matters, such as expulsion of the plaintiff from the premises, or the taking and carrying away of personal property, leaving it equivocal whether the plaintiff intends such additional matter merely as aggravation to give character to the principal trespass, the trespass upon the freehold, or whether it was inserted'as distinct trespass or trespasses for which the plaintiff seeks to recover as a substantive ground of action, the defendant has the right to assume that it was intended as aggravation merely; and in his plea pass over it in silence, answering only the alleged trespass on the freehold. In such case, if the defendant so pleads, and his plea is a good answer to the alleged trespass on the freehold, it is prima facie an answer to the whole action. And if the plaintiff wishes to avoid this effect, and recover for such additional trespass or trespasses, as well a-s for the trespass on the freehold, he must now assign in respect to such additional' trespass or trespasses, and in his new assignment allege that ho brought his action as well for the trespass or trespasses mentioned in the plea, as for the trespasses newly assigned. But the object of a new assignment is to correct a misunderstanding or affected misunderstanding or error into which the defendant in his plea has fallen as to the identity or extent of the plaintiff’s intended [447]*447cause of action, and to aver that the defendant has omitted to answer the whole or a part of the true ground of complaint; therefore it is not necessary to new assign when the defendant in his plea attempts to justify all the trespasses or ground of action specifically for which the plaintiff proceeds. In this case the defendants’ first special plea attempts to justify not only the trespass on the freehold, but specifically the trespasses to the personal property alleged in the declaration, and admitting that in removing it they did necessarily a little break, tear, bruise and injure the same, doing no unnecessary damage. The third special plea is substantially like the first, except it is pleaded only to the trespasses to the personal property, (omitting the allegation that the defendants did a little injure, &c., the same,) and alleging, as in the first special plea, that they did no unnecessary' damage. The defendants in their pleas having treated the alleged trespasses to the personal property as substantive trespasses, and pleaded to them accordingly, no new assignment under these pleas was necessary. A resort to a new assignment would have led to unnecessary prolixity, and resulted in a useless repetition of the pleadings. The plaintiff’s replication de injuria absque tali causa is an entire traverse of these pleas, and puts them in issue not only as to the trespass on the freehold, but also as to the trespass to the personal property. The allegation in these pleas, that in the removal, or in whatever the defendants did to the personal property, they did no unnecessai'y damage, was a material and traversable allegation, and was involved in the issue thus formed. The plaintiff under this issue, therefore, had a right to show and recover for any unnecessary damage done by the defendants to the personal property, unless there was some other issue in the case to prevent it. This presents a question as to the effect of the second special plea and issue thereon, it being traversed in the same general traverse with the other two special pleas. This plea is the same as the first special plea so far as relates to the trespass upon the freehold. This plea in its commencement shows that it is pleaded as to the breaking and entering the said close, in which, &c., and at the conclusion is confined to the trespasses as to breaking and entering the close. Even if the second special plea, had no other [448]*448been pleaded, might have been regarded as an answer to the whole declaratioir, until plaintiff should new assign, (which from the structure of the plea is doubtful,) it cannot be so construed. The defendants having in the other two special pleas treated the allegations of the other trespasses, not as aggravation merely, but as distinct and substantive causes of action, and answered them as such, it is manifest that the construction the defendants put upon the declaration was that the trespasses to personal property were relied on by the plaintiff as a substantive ground of action. Hence, upon the defendants’ own construction of the declaration, their second special plea must be regarded as an answer to part only of the cause of action, that is, to the breaking and entering of the plaintiff’s freehold; a.nd the plaintiff was not bound to new assign in order to avail himself of the trespass to the personal property. The court therefore erred in ruling that if the defendants showed title to the house in Plunkett, and that they entered and took possession by authority from Plunkett, they were entitled to recover ; as this ruling cut the plaintiff off from recovering, for the alleged trespass to the personal property, whatever damage the defendants may have done thereto, either necessarily or unnecessarily. The court also erred in admitting the evidence in reference to the plaintiff being advised that he had a right to enter and put the plaintiff’s goods out if he could find the plaintiff and his family absent. It would be competent to show that the defendants acted under an honest belief that they had a right to do what they did; but advice that they had a right to enter, &c., if they could find the plaintiff and his family absent, would have no tendency to induce the defendants to believe they had a right to enter and do what they did when the family were present, but would tend to induce a belief that they had no such right, and that they acted, not under advice of counsel, but contrary to it. It has been several times decided in this State, that title with right of possession of a. dwelling house does not justify an entry and forcible expulsion of the occupant and his family wrongfully holding over. Whether the pleadings present this as a ground of action, is not material to the question. The evidence of the defendant Barber’s collusion with the plaintiff’s house-keeper to aid [449]
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The opinion of the court was delivered by
PjsCK, J.
Under the pleadings and evidence in the case, the county court ruled that if the defendants had proved title to the house in question in Plunkett, by whose command the defendants by their special pleas claimed to justify, and had proved authority [446]*446from Plankett to enter and take possession of the house, and that the defendants did enter under that authority, they were entitled to recover.
It is iusisted on the part of the plaintiff that even if what the court held would entitle the defendants to a verdict was a justification of the entry and trespass upon the freehold, still it was no bar to the recovery by the plaintiff for the unnecessary damage to the plaintiff’s goods, done by the defendants, alleged in the declaration, and which the plaintiff’s evidence tended to prove. The counsel for the defendants claim that the removal of the plaintiff’s goods by the defendants, as set forth in the declaration, is only matter of aggravation, and that the defendants had a' right so to regard it; and hence, whatever justifies the entry upon the freehold, is a full answer to the action. It is true that in actions of trespass on the freehold, where the declaration, in addition to the averment of the breaking and entering the plaintiff’s close, contains allegations of other matters, such as expulsion of the plaintiff from the premises, or the taking and carrying away of personal property, leaving it equivocal whether the plaintiff intends such additional matter merely as aggravation to give character to the principal trespass, the trespass upon the freehold, or whether it was inserted'as distinct trespass or trespasses for which the plaintiff seeks to recover as a substantive ground of action, the defendant has the right to assume that it was intended as aggravation merely; and in his plea pass over it in silence, answering only the alleged trespass on the freehold. In such case, if the defendant so pleads, and his plea is a good answer to the alleged trespass on the freehold, it is prima facie an answer to the whole action. And if the plaintiff wishes to avoid this effect, and recover for such additional trespass or trespasses, as well a-s for the trespass on the freehold, he must now assign in respect to such additional' trespass or trespasses, and in his new assignment allege that ho brought his action as well for the trespass or trespasses mentioned in the plea, as for the trespasses newly assigned. But the object of a new assignment is to correct a misunderstanding or affected misunderstanding or error into which the defendant in his plea has fallen as to the identity or extent of the plaintiff’s intended [447]*447cause of action, and to aver that the defendant has omitted to answer the whole or a part of the true ground of complaint; therefore it is not necessary to new assign when the defendant in his plea attempts to justify all the trespasses or ground of action specifically for which the plaintiff proceeds. In this case the defendants’ first special plea attempts to justify not only the trespass on the freehold, but specifically the trespasses to the personal property alleged in the declaration, and admitting that in removing it they did necessarily a little break, tear, bruise and injure the same, doing no unnecessary damage. The third special plea is substantially like the first, except it is pleaded only to the trespasses to the personal property, (omitting the allegation that the defendants did a little injure, &c., the same,) and alleging, as in the first special plea, that they did no unnecessary' damage. The defendants in their pleas having treated the alleged trespasses to the personal property as substantive trespasses, and pleaded to them accordingly, no new assignment under these pleas was necessary. A resort to a new assignment would have led to unnecessary prolixity, and resulted in a useless repetition of the pleadings. The plaintiff’s replication de injuria absque tali causa is an entire traverse of these pleas, and puts them in issue not only as to the trespass on the freehold, but also as to the trespass to the personal property. The allegation in these pleas, that in the removal, or in whatever the defendants did to the personal property, they did no unnecessai'y damage, was a material and traversable allegation, and was involved in the issue thus formed. The plaintiff under this issue, therefore, had a right to show and recover for any unnecessary damage done by the defendants to the personal property, unless there was some other issue in the case to prevent it. This presents a question as to the effect of the second special plea and issue thereon, it being traversed in the same general traverse with the other two special pleas. This plea is the same as the first special plea so far as relates to the trespass upon the freehold. This plea in its commencement shows that it is pleaded as to the breaking and entering the said close, in which, &c., and at the conclusion is confined to the trespasses as to breaking and entering the close. Even if the second special plea, had no other [448]*448been pleaded, might have been regarded as an answer to the whole declaratioir, until plaintiff should new assign, (which from the structure of the plea is doubtful,) it cannot be so construed. The defendants having in the other two special pleas treated the allegations of the other trespasses, not as aggravation merely, but as distinct and substantive causes of action, and answered them as such, it is manifest that the construction the defendants put upon the declaration was that the trespasses to personal property were relied on by the plaintiff as a substantive ground of action. Hence, upon the defendants’ own construction of the declaration, their second special plea must be regarded as an answer to part only of the cause of action, that is, to the breaking and entering of the plaintiff’s freehold; a.nd the plaintiff was not bound to new assign in order to avail himself of the trespass to the personal property. The court therefore erred in ruling that if the defendants showed title to the house in Plunkett, and that they entered and took possession by authority from Plunkett, they were entitled to recover ; as this ruling cut the plaintiff off from recovering, for the alleged trespass to the personal property, whatever damage the defendants may have done thereto, either necessarily or unnecessarily. The court also erred in admitting the evidence in reference to the plaintiff being advised that he had a right to enter and put the plaintiff’s goods out if he could find the plaintiff and his family absent. It would be competent to show that the defendants acted under an honest belief that they had a right to do what they did; but advice that they had a right to enter, &c., if they could find the plaintiff and his family absent, would have no tendency to induce the defendants to believe they had a right to enter and do what they did when the family were present, but would tend to induce a belief that they had no such right, and that they acted, not under advice of counsel, but contrary to it. It has been several times decided in this State, that title with right of possession of a. dwelling house does not justify an entry and forcible expulsion of the occupant and his family wrongfully holding over. Whether the pleadings present this as a ground of action, is not material to the question. The evidence of the defendant Barber’s collusion with the plaintiff’s house-keeper to aid [449]*449him in getting possession of the house in the plaintiff’s absence, while she was left in charge of the plaintiff’s children and in care of the house, was clearly inadmissible, even in mitigation of exemplary damages. Such attempt to induce her to betray her trust, is more in aggravation than in mitigation of damages. It may perhaps be supposed that in this view of the just tendency of this evidence, the plaintiff could not be prejudiced by it. But it having been offered by the defendants and admitted by the court as evidence in mitigation of damages, the jury would regard it as a decision of the court that such should be its legal effect.
This view of the questions already alluded to leads to a reversal of the judgment.
Whether the plaintiff was entitled to the instructions asked in relation to the entry into the house with strong hand or multitude of people, and not peaceably, depends on the question whether the pleadings in the case and the issue, formed present the question involved in that request. The question has been argued without much reference to authorities, none whatever having been referred to on the part of the plaintiff; but we are inclined to think that, under the pleadings and the issue formed, the plaintiff was not entitled to that instruction.
Another important question in the case arises upon the exclusion by the court of the evidence offered by the plaintiff to show the deeds to Smythe, Sprague & Cooper were mortgages, and the debt secured thereby paid, and that this was known to Plunkett when he took his deed. This was a material question in the case, because, even if the levies were valid, and nominally embraced the whole premises, from what is stated in the exceptions the plaintiff may have been entitled to a homestead as against the levies. Upon the question of the admissibility of this evidence, we have had so little aid from the counsel from an examination and reference to authorities, that we do not decide it; but as the judgment is to be reversed on other points, we deem it not advisable to hold the case for re-argument on this point.
A question has been made whether the declaration is to be construed as containing two counts, or but one, but we have not regarded that, under the issue formed, as material. There is clearly [450]*450but one count for trespass for breaking and entering the close; and whether under a single count of this character, the rules of pleading will permit the plaintiff to present all the questions discussed in the argument, is not now before us.
Judgment reversed and new trial granted.