Kerr v. Chess

The opinion of the Court was delivered by Gibson, C. J. It seems to be unsettled whether a verdict on a traverse of liberum tenementum is conclusive of the title in ejectment; and considerable doubt has been cast on it by dicta of the judges, in Gilpin v. Meredith, 9 Price 146; S. C., 2 Eng. Exch. Rep. 416. It. will be sufficient to show that the point is not raised by the record at bar. A novel assignment presupposes that two or more actual or ostensible trespasses have been committed ; and it tacitly confesses the matter of the plea as to one of them. It is an abandonment of a trespass supposed to be justified; and the common bar, as liberum tenementum is sometimes called, having done its office, is heard of no more. The plaintiff avers, in reply, that he prosecutes for another, and a different trespass; and one which the defendant has not answered. 3 Chitty’s Plead. 1216. A new assignment, therefore, being in the nature of a new declaration, or rather being the original declaration pared down to the statement of a specific trespass, must be newly answered. Perhaps liberum tenementum might be again pleaded to it, though it is not usually, if ever, done. It is an evasive plea whose aim is to drive the plaintiff, not t.o an issue on the title, but to a particular designation of the cause of action by adding to it the circumstance of place. It is certainly not a perfect answer to a previous allegation even of a specific trespass, as the plaintiff might notwithstanding recover on a right of possession derived from the defendant himself; yet it seems to be so far an answer in the first instance as to require the plaintiff to confess and avoid it by new patter, for if issue were taken on it and the defendant were to show [372] that he has a freehold in the ville, he would be entitled to a verdict of course. As a means to force the plaintiff into a particular statement of his complaint, it receives a measure of indulgence which would not be accorded to it as any thing else. It is a practical violation of an elementaryrule which forbids the substance of the general issue to be pleaded specially; for it is no longer doubted that title may be given in evidence on not guilty, and it is for that reason perhaps that liberum tenementum is never pleaded t.o a novel assignment. The defendant, having compelled the plaintiff to individuate the particular trespass, is let into a full defence on the general issue. Now though that happened in this case to be pleaded in the first instance, it was not, like the common bar, superseded by the new assignment; and it was therefore unnecessary to repeat it. It was a broad denial of every trespass, however alleged, and it continued to be a denial of the trespass on which the plaintiff ultimately rested. The defendant had a right to plead it to the cause of action indefinitely charged ; and it stood for an answer to the declaration narrowed to a particular point. The parties, therefore, having gone to trial on the general issue, are not concluded in respect of the title. Judgment affirmed.