Howard v. Black

The opinion of the court was delivered by Prout, J. This action is trespass quare clausum fregit, the pleader alleging, for the purpose of aggravating the damages, that the defendant tore down and carried away the plaintiff’s fence [261] “ thereon being or situate.” The case went out to a referee by consent of parties, and was tried upon the general issue. No other plea was filed. To maintain his suit the plaintiff must show an Unlawful breaking and entry of the plaintiff’s close,.which is the gist of the action. In Knapp v. Grout, 40 Vt., 163, and in Goodrich v. Judevine, reported in the same volume, especially in the latter case, it is held that if the defendant is not guilty of the breaking and entry, he can not be found guilty of the trespass set forth in the declaration in those cases. They are held to be matters of aggravation, and the plea need not answer that. 1 Saund., 35, note 2; Eames v. Prentice et al., 8 Cush., 337, was an action for breaking and entering the plaintiff’s house and taking and carrying his goods therefrom and converting them, and is an authority upon this point, entirely consistent with the views expressed in the cases above cited. In that case the court held “ that where the plaintiff counts in trespass guare clausum fregit, he can not support his action by proving a trespass in taking and carrying away goods only.” It is insisted, however, that as the case was referred, these principles are not decisive. It is true that on a reference the action may be heard and tried by the referee upon any state of pleading applicable and appropriate to the case ; but it is to be observed that in the present case no defense was or could be made upon the facts, in the nature of a justification of the defendant’s entry of the plaintiff’s close, and which would open the case to the plaintiff for any claim he might make under a new assignment. The facts reported preclude it, as the title to the locus in guo in question is found to be in the defendant. The case stood for trial and was determined upon that distinct issue. Technically, it is only where the defendant by plea justifies the entry that matters of aggravation can be replied and brought forward and made a sole ground of recovery. I speak of course of the action as standing upon the general issue and .the facts reported, which is a complete answer to the gist of the action. If it appeared that the defense involved matter of justification, and existed in the evidence, although it was not pleaded, a very different question would have been presented; but such is not the case. [262] Blake v. Buchanan, 22 Vt., 548, presents a view of the subject which has a bearing. The judgment of the county court is affirmed.