Sampson v. Coy

15 Mass. 493

Opinion

Curia.

The general principle is that, under alla enormia, nothing can be given in evidence which would of itself form a substantia] ground of action ; but such matter should be specially averred. The reason is, that the defendant cannot be supposed to come prepared to defend against any cause of action of which he has no notice in the declaration.

Thus, under the allegation of breaking and entering the dwelling-house, evidence may be given of keeping the plaintiff out; because that is a consequence of the wrongful entry ; and the time need not be specially averred. But an assault and battery cannot be proved, for the reasons aforesaid, (a)

A new trial was granted, with leave to the plaintiff to amend his declaration upon terms.

Footnotes

(a)

1 Chitty, Pl. 442, 5th Land, ed— 2 Phill. Ev. 134.