Keay v. Goodwin
Massachusetts Supreme Judicial Court
Trespass for breaking and entering the plaintiff’s close, situate in Lebanon, in the county of York, and carrying away the boards of the plaintiff.
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Trespass for breaking and entering the plaintiff’s close, situate in Lebanon, in the county of York, and carrying away the boards of the plaintiff. The defendant pleads in justification of the supposed trespass, that the close mentioned in the plaintiff’s declaration was the soil and freehold of him, the said Goodwin, and sundry other persons, who hold the same as tenants in common; the same being a sawmill, mill-privilege and yard; and that the locus in quo had been in his separate occupation, as a place for piling his boards and lumber, by the consent of his co-tenants, until the plaintiff,…
1Opinion of the Court
Wilde, J.,
delivered the opinion of the Court.—The first question to be considered is, whether the rejoinder is not a departure from the bar; and of this we think there can be no doubt.—It is averred in the bar, that the locus in quo was allotted to the defendant, as his separate piling-place; and this fact is traversed in the replication. Instead of taking issue on the traverse, the defendant rejoins new matter, not tending to fortify the averment in the bar. This, by the rules of pleading, is inadmissible ; and it seems that such a defect may be taken advantage of on general demurrer. It is…
2Cited by28 opinions
- Cunningham v. PatteeMassachusetts Supreme Judicial Court · 1868
- Swartzbaugh v. SampsonCalifornia Court of Appeal · 1936
- Newall v. WrightMassachusetts Supreme Judicial Court · 1807
- Tillis v. Liverpool & London & Globe InsuranceSupreme Court of Florida · 1903
- Merrill v. BullockMassachusetts Supreme Judicial Court · 1870
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