for that the plaintiff held of him the place, where, &c., by heriot service inter alia servitia, as of his manor of Paulter, and that he seized the said ox there for an heriot. Whereupon the plaintiff demurred, and had judgment. And error being now brought, Foster argued for the defendant in the writ of error, that one cause of the judgment was in the pleading. For in the bar he justifies for damage-feasant, wherein he claims not any property; and in the rejoinder he justifies for an heriot, wherein he claims it as his; for it is contrary, and a departure. Wherefore, &c. But all the Justices severally delivered their opinions as to the objection against the pleading, holding it to be well enough; for by the novel assignment the bar is out of doors, and as if it never had been pleaded; as 27 Hen. VIII. pl. 7, is.3 PRATT v. GROOME. IN THE KING'S BENCH, FEBRUARY 11, 1812. [Reported in 15 East, 235.] TRESPASS quare clausum fregit, parcel of Fen Mead in the parish of Totternhoe, in the county of Bedford. There were other counts laying the close in the parish of Eaton Bray, and in Totternhoe and Eaton Bray. The defendant pleaded the general issue; and, secondly, after averring the closes in the different counts to be one and the same, that the locus in quo is parcel of a common field called Fen Mead, which is divided into allotments holden of the lord of the manor of Eaton Bray, and within the jurisdiction of the leet jury of the said manor. The plea then set forth a custom for the leet jury to meet at certain specified times, and to set out the bounds of the different allotments in the common fields within the manor: that the defendant was seised in fee of a certain allotment within Fen Mead holden of the lord, and within the jurisdiction of the leet jury, and adjoining to an allotment also within Fen Mead, &c., possessed by the plaintiff; that the jury set out and determined that the locus in quo was parcel of the said allotment of the defendant, and was his close, soil and freehold, &c. The plaintiff in his replication, after setting out the abuttals to the closes in each of the counts of the declaration, concluded thus: "Which said closes above newly assigned were and are other and different closes than the said allotment, or piece, or parcel of land of the defendant in his said last plea mentioned." To this the defendant pleaded not guilty. At the trial before Mansfield, C. J., at 1 Only so much of the case is given as relates to pleading. — ED. 2 GAWDY, J. "After a new assignment the old barre is waved and out of the book, and the defendant shall plead to the new assignment, as if he had never pleaded before." Golds. 191.-ED. the last assizes for the county of Bedford, the plaintiff's counsel, in opening his case, did not pretend to be able to prove a trespass anywhere but on the spot allotted to the defendant by the leet jury; whereupon the learned judge directed the jury to find for the plaintiff on the general issue only, and for the defendant on the not guilty to the new assignment; which they accordingly did. Sellon, Serjt., in Michaelmas term, obtained a rule nisi for a new trial, or to enter a verdict generally for the plaintiff, notwithstanding the verdict for the defendant on the other issue. Blosset, Serjt., now showed cause, and contended that the plaintiff under this form of pleading had no right to show a trespass in the place which the defendant by his plea claimed as his allotment; for by his new assignment the plaintiff had waived the trespass to which the defendant had before pleaded in bar. In support of this he cited Bull. N. P. 92; Freeston v. Crouch; Freeston v. Standford; 2 1 (Williams's) Saund. 299, n. 6, and 2 Saund. 5. LORD ELLENBOROUGH, C. J., said there could be no doubt that the not guilty to the new assignment put the whole of it in issue, a part of which was that the close was different from that mentioned in the plea. The court therefore thought the direction of the learned Chief Justice at the trial right, but they gave the plaintiff leave to amend on payment of costs. GROSE, J., had left the court, and LE BLANC, J., was absent at Horsemonger-lane." NORMAN v. WESTCOMBE AND ANOTHER. IN THE EXCHEQUER, JANUARY 15, 1837. [Reported in 6 Law Journal Reports, Exchequer, 164.4] TRESPASS for breaking and entering the plaintiff's house. Pleas. First, not guilty; second, that one W. F., before the said time when, &c., held and enjoyed a certain dwelling-house of the defendant T. W., under a demise, at a yearly rent of £8, payable from the said W. F. to the said defendant, and that just before the said time when, &c., a large sum, to wit, the sum of £8, for one year of the said demise, was owing from the said W. F. to the defendant; and while the same was in arrear, and within thirty days before the said time when, &c., the said W. F. fraudulently and clandestinely con 1 Cro. Eliz. 492. 2 Cro. Eliz. 355. 8 Freeston v. Crouch, Cro. El. 492; Freeston v. Standford, Cro. El. 355; Oakeley v. Davis, 16 East, 82; Darby v. Smith, 2 M. & Rob. 184; McNutt v. Arnott, 5 Blackf. 95; Boynton v. Willard, 10 Pick. 166 Accord. See Atkinson v. Matteson, 2 T. R. 176–7; Hall v. Middleton, 4 A. & E. 107. 821.― ED. 4 2 M. & W. 849 s. c. ED. veyed away and carried off and from the premises, so held and enjoyed by the said W. F., certain goods and chattels, to wit, &c., of the said W. F., to prevent the defendant from distraining the same for the rent so due, and for that purpose conveyed them to the said dwellinghouse in which, &c., without leaving any goods and chattels on the said premises, sufficient to satisfy the said arrears of rent; that the defendant requested the plaintiff to allow him to enter his dwellinghouse to seize and take the said goods, which he refused to do; that a warrant to search the said plaintiff's house was then obtained from two justices; and the defendants justified the entry, under that warrant, to search for the goods so clandestinely removed. Replication. That the plaintiff declared for that the defendants broke and entered the said dwelling-house upon a different occasion, and upon another and different part of the day from that in the plea supposed, and stayed and continued therein for a long space of time, to wit, for six hours modo et forma, which said trespasses newly assigned are other and different trespasses. Verification. To this new assignment the defendants pleaded the same defence as to the declaration, merely alleging that it was before the trespasses newly assigned; and the plaintiff replied de injuria. At the trial before Williams, J., at the last Summer Assizes for Somersetshire, the defendants proved that W. Fuke had removed his goods to the plaintiff's house to avoid the distress, and that the defendant, who was the landlord of Fuke, had gone to the plaintiff's house to demand the goods on the 19th of April. He then entered with the plaintiff's license. On the 20th he came again with the other defendant, Sayer, and left him there at eleven o'clock, in order to obtain a warrant. He returned at one o'clock, and, together with Sayer, who had been turned out of the house in the interval, entered under the warrant. No proof was given of the demise to Fuke, nor of the arrears, but it was contended that these facts were admitted on the pleadings; and the learned judge directed a verdict for the defendants. In Michaelmas Term last, a rule had been obtained for a new trial, on the ground of a misdirection, against which— Erle now showed cause. The facts stated in the defendants' plea to the new assignment had been admitted by the plaintiff on the record, and therefore did not require to be proved at the trial. The plea to the new assignment is to be referred in its construction to the plea to the declaration; House v. The Thames Commissioners.1 Although in the plea to the new assignment a demise and arrears are stated, yet they have been already stated in the plea to the declaration, and admitted by the plaintiff. It was enough for the defendant to apply those facts by parol evidence to the same premises and the same time, which was done. In all continuous pleadings, everything not traversed is admitted, and the whole of the pleadings in the present case are continuous. The new assignment, therefore, admits the 1 3 Brod. & Bing. 117. truth of the justification. 1 Wms. Saund. 299, a; Oakley v. Davis.1 The case of collateral pleadings is different. [PARKE, B. Under the issue on the new assignment, it must be proved that Fuke was tenant at the precise part of the day on which the plaintiff proves that the defendants entered.] It is submitted, that that is done by the aid of the parol evidence. [LORD ABINGER, C. B. You seek to help out the admission on the pleadings by parol evidence.] [PARKE, B. Can you use parol evidence to apply the admission on the pleadings to the facts? You cannot call in aid an admission in one plea to prove another.] No, that cannot be done where there are collateral pleadings; but it is different where they are continuous. This case may be illustrated by other analogies. Suppose a trespass quare clausum fregit, or an assault, and a right of way be pleaded to the former, and a justification to the latter; if there be a new assignment of extra viam, or excess, the justification in each case is admitted. [LORD ABINGER, C. B. If there had been two counts in trespass, and the defendant had pleaded a justification to each, which had been admitted by the plaintiff as to one count, and traversed as to the other, the former plea would have been as though it were struck out of the record, and the trial would have been on the other. The question on the new assignment is the same.] The two counts are as two actions, and it may be treated as collateral pleadings; but even then probably the admission in the one might be used in the other, provided there were a proper application by parol evidence. Again, take the case of an action on a bill of exchange, and for goods sold, for which the bill was given; and the defendant pleads to the count on the bill, payment, to which the plaintiff enters a nolle prosequi, and to the count for the goods a satisfaction by the bill; the defendant might show that the plaintiff has admitted the payment of the bill.2 LORD ABINGER, C. B. The ingenious argument for the defendants raised a considerable doubt in my mind. If this had been parallel to the cases suggested, of two separate counts, with an admission of certain facts in the pleadings to one, or of two separate actions, to one of which there was a plea admitted by the plaintiff, or the defendants had recovered a verdict thereon, I should have thought it worthy of consideration, whether the admission or verdict would not have been evidence in support of the pleadings to the other count or action. But those are distinguishable from the present case. A new assignment does not admit the facts stated in the plea, but is merely an assertion that the plaintiff does not investigate the subject-matter set forth in the plea. It is not an admission, but is the same as if the plaintiff were to say, "I do not choose, and never intended to go for that trespass, which you have attempted to justify." Suppose a plaintiff * The argument for the plaintiff is omitted. ED. 1 16 East, 82. embraces several matters in his declaration, to one of which the defendant pleads a justification, which the plaintiff cannot deny, and he agrees to have it struck out of the declaration, and obtains an order for that purpose, and goes to trial on the other matters, that would be taken from the consideration of the judge and jury, and would not be evidence in support of the other issues. Here the pleadings, previous to the new assignment, are to be taken as if they were in point of fact struck out of the record, and the defendants had no right to use them on the trial of the other issues. PARKE, B. I entertained no doubt when this case was moved, but I have been led into a doubt by assuming that the new assignment admits the truth of the matter previously pleaded. But when we examine the nature of a new assignment, we find that it only admits the existence of another trespass, as to which the plaintiff wholly abandons all inquiry. Its effect, as Mr. Crowder says, is not an admission of the facts stated in the plea, but an assertion that that is not the cause of action of which the plaintiff complains. Then the other pleadings, previous to the new assignment, being out of the case, the defendants cannot make use of any admission of the facts stated in the plea to the declaration. BOLLAND, B., concurred. Rule absolute.1 BATT v. BRADLEY. IN THE KING'S BENCH, TRINITY TERM, 1606. [Reported in Croke's James, 141.] TRESPASS quare averia sua cepit at Kymbolton, and chased them, &c. The defendant justifies in such a close for damage-feasant. The plaintiff shows, that the place where was another close; whereupon the defendant demurred, pretending that the plaintiff never made any new assignment, but where the writ is quare clausum fregit. The court held the contrary. Wherefore it was adjudged for the plaintiff.2 1 Dand v. Kingscote, 6 M. & W. 197, per Parke, B.; Robertson v. Gantlett, 16 M. & W. 289; Grove v. Withers, 4 Ex. 875; Brancker v. Molyneux, 1 M. & G. 710; Wilmshurst v. Bowker, 5 B. N. C. 550 Accord. See Aldred v. Constable, 6 Q. B. 376, 377; per Patteson, J.; Bartlett v. Prescott, 41 N. H. 449.-ED. 2 Abbot v. John, Parson, Y. B. 34 Hen. VI f. 10, pl. 21; Coke v. Evans, 2 Salk. 453; Cockley v. Pagrave, Freem. 238; Scott v. Dixon, 2 Wils 3; Heydon v. Thompson, 1 A. & E. 210 (assumpsit); Nelson v. Robe, 6 Black f. 214 (action for slander); Campbell v. Bannister, 79 Ky. 205 (action for slander); Stickle v. Richmond, 1 Hill, 77 Accord. — ED. |