Fogg v. Cushing

Goodenow, J. This is an action of trespass guare clausum. On the return day of the writ, before a justice of the peace, the defendant moved “the said court that this action may be dismissed and the writ abated,” for reasons therein stated. And the justice rendered judgment that said writ abate, and that the defendant recover his costs. From this judgment plaintiff appealed, and the action was duly entered in this Court. The reasons assigned by the defendant in his motion in abatement are, “because, being brought to recover a penalty alleged to be incurred under the provision of § 13, c. 162, R. S., the writ does not allege that said trespass was committed wilfully and maliciously, as is required by the provisions of said statute, and also because said declaration does not allege said trespass to have been contrary to the form of the statute.” The breaking and entering the close is the gist of the action; and whatever sufficiently answers this, is a sufficient answer to the whole complaint or declaration including all [317] matters of aggravation, such as are set forth in the plaintiff’s motion. Motion of defendant in abatement overruled. Judgment that the defendant answer over.