6 Johns. 63 | N.Y. Sup. Ct. | 1810
The plaintiff has declared for several trespasses, done at divers places, and at different times. This is a very usual way of declaring; and the defendant was bound, by his special plea, to answer the whole declaration, and to hit every trespass, since the plea begins and professes to be an answer to the whole. (1 Salk. 179. 1 Saund. 28, note 3.) But he has' only justified as to one locus in quos and it is no answer to the other trespasses, to say, that they referred to the same close. He should have pleaded not guilty as to all but one close. The plaintiff alleged trespasses in distinct places,- and he could not reply to the plea, but by saying merely, that the places wére several and distinct. This was all that he could say, so far as respects two of the trespasses charged ; and this would be tendering an immaterial issue, assuming them to be separate closes; and there is, then, no answer to the trespass. The defendant, if he had followed the established precedents, should have set up his justification, as to all the closes, or he should have denied the trespass as to all the closes but one, and justified his entry as to that one. This is the practice when the defendant pleads, as he does here, liberum tenementum. As- it is, we must consider the plea as beginning -with an answer to the
Judgment for the plaintiff, with liberty to the defendant to amend on the usual terms.