Majority
p. 395David Hallock v. John Robinson.
Headnote
ON demurrer in trespass quare clausum Jregif.— The plaintiff declared generally, for breaking and entering his close in the township of Brookhaven. The defendant pleaded liberum tenementum, specifying and setting it out by metes and bounds. To this the plaintiff, without new assigning, replied, his own freehold, traversing the freehold of the defendant, and concluding with an et hoc paratus praying his damages. The defendant demurred specially, and showed for cause a variety of reasons, but relied principally on the want of a new assignment, and the not concluding to the country.Sanford, for the demurrant.
Woods, contra.
The replication is evidently no answer to the plea of the defendant, setting forth by specific metes and bounds, a particular close as his freehold. The plaintiff replies only, that the close in the declaration is his close, but says nothing as to the specific close in the plea, which is left totally unanswered. If the plaintiff had averred the close in the plea to be his, he ought, perhaps, to have tendered an issue. As, however, we think, the plaintiff
p. 396
should have new assigned, it is unnecessary to decide in what manner his replication should have concluded.
Woods applied for leave to amend on costs.
Sanford resisted, as there had been one amendment without costs, and hoped, if it was granted, it would be on payment of those formerly incurred.
. Kent, C. J. Amend on payment of the costs of this demurrer.