City of Providence v. Adams

Two motions are filed in each of these cases, viz.: 1. A motion for leave to amend the pleas of estoppel. 2. A motion for leave to withdraw demurrers and file rejoinders to the plaintiffs' replications. The court denies the motions for leave to amend, being of the opinion that the proposed amendments will not materially add to the pleas as pleas of estoppel by record, and that if the design is to convert them into pleas of estoppelin pais, the proposed amendments do not disclose such facts and circumstances as amount to estoppels in pais. The court also denies leave to file the rejoinders proposed, but will permit rejoinders, properly framed, to set up the defence that the trespasses complained of and prosecuted in the former suit were not confined to the part of the land embraced in the former suit which is excluded from the present *Page 192 suits, but extended to the whole or to some part of the land embraced in the present suits; the opinion of the court being that the title only of the land where the said trespasses were committed was put in issue, and that the verdict of the jury, and the judgment of the court thereon, can operate as an estoppel only to the same extent, even though, in fact, the jury may have gone beyond this in the trial, and intended to settle, and supposed they were settling, the title of the entire close described. After this opinion the defendants filed in each case the following rejoinder to the replication given above: — "And the said defendant says that by reason of anything in said replication alleged said plaintiff corporation ought not to have or maintain its aforesaid action against him, because he says that at the trial in said former action no testimony was produced that showed that said alleged trespasses, to wit, the prostrating and carrying away said building, and treading down said herbage, were confined to the northwesterly corner of the close in said former action described, and that no testimony was produced at said trial in said former action of the locus inquo of said alleged trespasses; but that at said trial in said former action, in open court, it was assumed by the plaintiffs in said former action, and conceded by the defendants in said former action, that said alleged trespasses were committed over the whole and every part and parcel of the close in said former action described, including the whole and every part and parcel of the close described in the plaintiff corporation's declaration in this present suit; and that the description of the locus inquo of said alleged trespasses in the plaintiffs' declaration in said former action included the entire close described in the plaintiff corporation's declaration in this present suit, and that the defendants in said former action pleaded title in said city of Providence in and to the entire locus in quo described in the plaintiffs' declaration in said former action, and no other pleas; and that said pleas of title were duly traversed, and thereupon issue was joined; and that thereupon after issue joined as aforesaid the plaintiffs in said former action produced testimony at said trial in said former action of possession of the entire locus in quo described in the plaintiffs' declaration in said former action, actual *Page 193 and constructive, by the plaintiffs in said former action and their predecessors in title, for more than twenty years prior to the issue of the plaintiffs' writ in said former action; and that after issue joined as aforesaid and trial of said former action, the jury rendered a verdict upon all the issues joined as aforesaid for the plaintiffs and against the defendants in said former action, and judgment was entered accordingly, and that said judgment was a final judgment in said action." Verification, and prayer for judgment. The plaintiffs moved in each case to strike out this rejoinder, and, on these motions, the court gave the following opinion: —