Smith v. Powers

13 N.H. 216

Opinion

Parker, C. J.

Footnotes

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The demurrer, in this case, is well taken. The plaintiff, by his declaration, specifies the close in which he alleges the trespasses to have been committed, as being all of lot numbered three, in the first range of lots on the west side of Amonoosuck river, in Bath, which lies southerly of a certain line. The defendant pleads, in substance, that he is not guilty of all the alleged trespass, except breaking and entering a certain portion of that close, (which he describes particularly,) and there cutting the trees mentioned in the plaintiff’s declaration ; and as to entering upon that part of the close, and cutting those trees, he justifies upon the ground that it is his freehold. These pleas cover the whole matter alleged in the declaration ; and the plaintiff having joined issue upon the allegation that the defendant is not guilty of any thing more than entering upon the part of the close embraced in the justification, and having traversed the justification itself, tendering an issue to the country, the whole matter alleged in the declaration is duly put in issue for trial.

If the plaintiff can prove that the defendant has entered upon any other part of the close described in the declaration, than that embraced in the justification, he will be entitled to a verdict and judgment on the»first issue ; for the defendant pretends to no justification for any such act.

And the defendant, having admitted that he entered upon the part of the close which he specifies in his justification, must sustain his plea as to that, or the plaintiff will be entitled to judgment on the second issue, for the acts which the defendant thus admits he has done.

If the defendant sustain this matter of justification, as to that part of the close, and the plaintiff can prove nothing more to have been done, the plaintiff' has no title to maintain his action.

It is very clear, therefore, that there is no necessity for a new assignment, and nothing in the case to be tried under it, if it were admitted. 1 Chitty's Pl. 602, (3d Ed.); 10 East 73, Cheasley vs. Barnes; 17 Pick. 236, Parker vs. Parker; 10 Pick. 166, Boynton vs. Willard.

Furthermore ; where a new assignment is properly introduced into the cause, the defendant must plead to it precisely as to a declaration, either by denying the matter new assigned, by the plea of not guilty, or by answering it by a special justification, &c. 1 Chitty's Pl. 613. If the defendant had pleaded not guilty to the new assignment, in this case, there could have been nothing more to be tried under that issue than may now be tried, under the first issue joined in the case.

“A new assignment is used to ascertain, with precision and exactness, the place, or time, which had been alleged only generally in the -declaration. It is used to explain that more fully, which is only apparently answered by the plea.” 1 Wms. Saund. 299, b, note. A very common instance of its use is, when the plaintiff has declared generally, for a trespass to his close in a certain town, without a particular description of the boundaries; and the defendant justifies an entry into a close in that place, describing it, which is in fact not the close the plaintiff intended.

“ Where the plaintiff and defendant agree in the place, the plaintiff cannot new assign” as to the place. 1 Saund. 300, note. In this case there is no controversy as to the place, the pleas having covered the whole place alleged in the declaration, and no move.

Leave to withdraw the neto assignment.

Woods, J., having been of counsel, did not sit.