George v. West

The opinion of the court was delivered by Ross, J. The question raised is, whether, on the pleadings, the plaintiff in rebuttal had the right to introduce evidence to show that the defendant, after having taken the sheep damage feasant, and having regularly impounded them agreeably to the statute and his second plea in bar, had so conducted in the sale of the [647] sheep, as to make himself a trespasser ab initio. The defendant’s plea in bar purports to cover and justify all the trespasses declared for, and the facts therein alleged, if found true, would furnish a full justification for the original taking and impounding of the sheep. The replication de injuria sua propria, absque tali causa, in terms denied and put in issue the facts set forth in the plea, and nothing more. The plea having set forth a justification of the entire cause of action, it is questionable whether the replication de injuria would not be held insufficient on demurrer. But as long as the defendant was content to go to trial on the issue made by that replication, the plaintiff cannot be allowed to enlarge the scope of the trial by the introduction of testimony outside of the issue thus presented by him. To allow him such privilege would operate to surprise the defendant, who was only called upon to produce evidence for the trial of the issue joined. If the plaintiff would have secured to himself the right to put in issue other facts in avoidance of those brought upon the record by the plea, he should have embodied such facts in a special replication. 1 Chit. Pl. 564, et seq. On the issue joined, the plaintiff had limited himself to a denial of the facts alleged in the plea ; and it was error in the County Court to allow him to travel outside of the issue joined, and introduce testimony to show that the defendant had, by subsequent proceedings, madehimself a trespasser ab initio. Judgment reversed, and cause remanded, with leave to the defendant to replead on the usual terms.