Gleason v. Howard ( 1817 )

IN an action of trespass quare clausum fregit,. if the defendant attempt to justify, under a special plea of title and possession, he must aver every material fact necessary to constitute a title. An averment that the title, &c. was in another on the fifteenth day of, &c. and that he attached, &c, on the sixteenth day of same month, does not connect the title of the other and himself. An averment that the execution was levied, &c, is bad, unless it appears the execution was in full life. An averment, that by reason whereof, (alluding to the prior statement of the levy of the execution, &c.) the defendant became seized and possessed, in his own right, &c. is argumentative and bad pleading, unless the prior averment will necessarily warrant the conclusion of seizen and possession, i. e. unless they are such as to give title and possession. ' An averment, in the plea that defendant was seized and possessed, &c. at the time when the trespass is alledged to have been committed, will not avail, in case there are two counts in the declaration, and trespasses in each, alledged ,to haye been committed at different times.

Query, Does not this special plea amount to the genera! issue, and therefore bad ?