Cassidy v. Richardson

66 A. 641, 74 N.H. 221, 1907 N.H. LEXIS 28

Opinion

Bingham, J.

The demurrer should have been sustained. It is impossible to ascertain from the declaration the nature of the action or the ground upon which it proceeds. It is wholly a matter of conjecture as to what is relied upon as the ground of complaint. It may be that the action is for trespass to the person, or that it is for trespass to land with aggravated damages on account of the plaintiff’s eviction and exclusion from the land by the defendant (Shaw v. Hoffman, 25 Mich. 162), or, as suggested in the plaintiff’s brief, her action may be founded upon a covenant, express or implied, for the quiet enjoyment of certain leased premises, and the breach of the covenant by the defendant by reason of his entering upon and evicting her from the premises prior to the termination of the tenancy. If the last ground is the one relied upon, the plaintiff should have set out the covenant in her declaration and alleged its breach in accordance with the legal requirements in such actions. Skally v. Shute, 132 Mass. 367; Brown v. Company, 152 Mass. 463: Beebe v. Swartout, 3 Gilman 162, 179—181; Keating v. Springer, 146 Ill. 481; Sanderson v. Berwick-upon-Tweed, 13 Q. B. Div. 547, 551; 1 Tay. L. & T. (9th ed.), ss. 308, 309, 309a; 2 Chit. Pl. (16th Am. ed.) 200, 201; 5 Enc. Pl. & Pr. 362-373.

Exception sustained.

All concurred.