Hallock against Robinson

Hallock against Robinson. fc a plaintiff declare in trespass generally, and the defendant plead liberum itmemenlum, setting out the close with metes and bounds, the plaintiff should new assign. If he do not, and conclude with an averment, it is fatal on special demurrer. Amendment allowed, on payment of costs, after demurrer argued, and- the judgment of the court pronounced, though an amendment had once before been granted. On demurrer guare clausum fregii. The plaintiff declared generally, for breaking and entering bis close in the township of Brookhaven. The defendant pleaded liberum tenementum, specifying and setting it out by metes and bounds. To this the plaintiff, without new assigning, replied his own freehold, traversing the free-bold of the defendant, and concluding with an ethoc paratus, praying bis damages. The defendant demurred specially, and showed for cause a variety of reasons, but relied principally on the want of a new assignment, and the not concluding to the country. Sanford, for tbe demurrant. The replication, we contend, is defective. The law in actions of trespass is this: The plaintiff may declare generally for a trespass in a certain town, or be may particularize tbe close, give it a name, and set it out with metes and bounds. In tbe latter case the defendant is bound to answer to a trespass in that close. In tbe former tbe defendant may plead liberum tenementum, and particularize the locus in quo. If this be done, the plaintiff has but two *modes in which to reply. He must either new assign, or admit the trespass committed in the place specified in the plea, and take issue on its being the freehold of the defendant. If so, the question then is, is this such a replication ? In all other cases, where there is not due certainty in the first instance, it is ground for a demurrer. In trespass, to compel to this certainty, pleaders have framed the common bar, which drives the plaintiff, by a new assignment, to that precision which he ought, in his declaration, to have adopted, and takes from him the advantage, he would otherwise acquire by this general mode of declaring, of giving in evidence a trespass in any close in the town. If it was meant to rely on the trespass committed in the close specified in the defendant’s plea, the plaintiff should have taken issue on its being the freehold of the defendant, and have concluded to the country. Either of these causes of demurrer are fatal to the replication. Woods, contra. The principles of pleading, in this form of action, are not controverted. As to the replication in question, in Lilly, 440, there is a precedent exactly similar. The issue was open to the defendant, who might have taken it on the traverse. Esp. N. P. 410 ; Bull. N. P. 93 ; Stra. 871. Sanford, in reply. The entry in Lilly contains nothing incompatible with what has been stated. The plaintiff there set out his close with certainty by name. Therefore the object of the defendant here was answered. Where the plaintiff takes issue on the place, as' alleged in the plea, he must conclude to the country. The replication is as general as the declaration, and no answer to the plea of freehold, in the close set forth by the defendant. In 6 Bac. Abr. by Grwillim, 620, citing Lutw. 1399, it is laid down as settled, that when, to a plea of liberum tenementum, the plaintiff does not new assign, he must take issue on the plea, and conclude to the country. Baynham v. Mathews. The rule is, wherever the whole substance of the plea is put in issue by the replication, you may conclude to the country, notwithstanding the traverse. When this is not the case, there must be aa. averment. See Manhattan Company v. Miller, ante, 61, n. (a.) [MAJORITY — Kent, Ch. J.] Kent, Ch. J. The replication is'evidently no answer to the plea of the defendant, setting forth,- by specific ttQtes and bounds, a particular close as his freehold. The plaintiff replies only that the close in the declaration is his close, but Says nothing as to the specific close in the plea, which is left totally unanswered. If the plaintiff had averred the dose in the plea to be his, he ought perhaps to have tendered an issue. As, however, we think the plaintiff should have new assigned, *it is unnecessary to decide in what manner his replication should have concluded. Woods applied for leave to amend on co'sts. Sanford resisted, as there had been one amendment without costs, and hoped, if it were granted, it would be on payment of those formerly incurred. Kent, Oh, J. Amend on payment of the costs of this demurrer.' Judgment for the demurrant, with leave to amend.