7 Watts 367 | Pa. | 1838
The opinion of the Court was delivered by
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
Judgment affirmed.