Manning v. M'Donnell

Supreme Court of South Carolina

Manning v. M'Donnell

5 S.C.L. 15

DecidedDecember 15, 1811

StatusPublished

This text of 5 S.C.L. 15 (Manning v. M'Donnell) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Manning v. M'Donnell, 5 S.C.L. 15 (S.C. 1811).

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Opinion

Brevard, J.,

delivered the opinion of the court. The general rule in actions for breaking the close, is, that the plaintiff may. declare generally, to which the defendant may plead the common bar, (his own freehold,) at another place, without traversing the place assigned, to drive the plaintiff to a novel assignment. But when the particular place is assigned in the declaration, the trespass must be proved as laid 5 because in such case a novel assignment is pre-eluded. This mode of declaring, if improper, might have been demurred to ; but.it seems proper enough. It supercedes the necessity of pleading the common bar, to drive the plaintiff to that which he has done voluntarily in the first instance; i. e., to assign a particular place. The issue being upon the trespass as laid, it was necessary to prove the case as laid. This seems to be the more proper, as otherwise the defendant might be surprised by evidence to prove a trespass at a place different from that laid in the declaration.

Motion discharged.

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Brevard, J.,

delivered the opinion of the court. The general rule in actions for breaking the close, is, that the plaintiff may. declare generally, to which the defendant may plead the common bar, (his own freehold,) at another place, without traversing the place assigned, to drive the plaintiff to a novel assignment. But when the particular place is assigned in the declaration, the trespass must be proved as laid 5 because in such case a novel assignment is pre-eluded. This mode of declaring, if improper, might have been demurred to ; but.it seems proper enough. It supercedes the necessity of pleading the common bar, to drive the plaintiff to that which he has done voluntarily in the first instance; i. e., to assign a particular place. The issue being upon the trespass as laid, it was necessary to prove the case as laid. This seems to be the more proper, as otherwise the defendant might be surprised by evidence to prove a trespass at a place different from that laid in the declaration.

Motion discharged.

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Bluebook (online)

5 S.C.L. 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manning-v-mdonnell-sc-1811.