charges them as parts of one trespass, as is the case in this *790] declaration, and the defendant sets forth a justification to the principal act, the entry, it is just that the plaintiff should, either by replication or new assignment, state that he insists on the expulsion as a substantive trespass, supposing the entry should be lawful. If he does not, it is just to consider it only as matter of aggravation." Here, the plaintiff has adopted that course. It may be that it may be proved at the trial, that the title relied on by the defendants, had ceased at the time of the expulsion. [MAULE, J.-Is a new assignment the proper course? Should you not have replied?] Smith v. Monprivatt, 2 Camph. 174, shows that a new assignment is the proper course. There, to trespass for breaking and entering a house, and staying therein three weeks, the defendant pleaded not guilty, and a justification as to breaking and entering and staying in the house twenty-four hours, under a writ of fi. fa. The defendants (the sheriffs) proved their justification; but it appeared that their officers continued in the plaintiff's house beyond twenty-four hours. It was contended, for the plaintiff, that the excess beyond twenty-four hours stood merely upon the plea of not guilty; and, as the defendants had been proved to have been guilty of remaining in the house longer than they pretended to justify, the plaintiff was entitled to a verdict and damages for what he had thereby suffered. But Lord ELLENBOROUGH said: "I am of opinion that the last plea in point of law applies to the whole declaration; and that, if the plaintiff meant to rely upon the excess beyond the twenty-four hours, he ought to have said so by a new assignment."(a)

Corrie, in reply.-The object of a new assignment is, *to *791] "re-state, in a more minute and circumstantial manner, the cause of action, or some part thereof, alleged in the declaration, in consequence of the defendant having, through mistake or design, omitted to answer it in his plea. It is therefore in the nature of a new declaration, or, rather, it is a more precise and particular repetition of the declaration in those cases where the law permitted a general form of declaring equally applicable to two or more states of facts, but leaving it doubtful in the description which was intended:" 1 Chitty on Pleading, 7th edit., 653. If the plaintiff acquired title at any time, the defendants' justification fails. The third plea is not pleaded to the expulsion. To be good, the new assignment must be good as to the whole to which it is pleaded. [MAULE, J.-It may perhaps be doubtful whether this new assignment states a trespass.] It reasserts everything stated in the declaration.

MAULE, J.(6)-It appears to me that the new assignment in this case is bad. The declaration complains that the defendants, on, &c., and en

(a) See Dye v. Leatherdale, 3 Wils. 20; Fisherwood v. Cannon, 3 T. R. 297; Gates v. Bayley, 2 Wils. 313; Cheasley v. Barnes, 10 East, 73.

(b) The Lord Chief Justice was absent, on account of indisposition.

divers other days and times, with force and arms, &c., broke and entered the plaintiff's dwelling-house, and remained therein, broke the doors, &c., and expelled and put out the plaintiff and his family, servants, and lodgers, and seized his goods, &c. To this the defendants have pleaded several pleas of liberum tenementum, one of them commencing "as to the seizing and taking the goods," and the other as to the trespasses in and to the dwelling-house, and seizing and taking the goods," and justifying all the trespasses alleged in the declaration. Then comes a replication, traversing the liberum tenementum; and, further, there is a new *assignment, that the plaintiff sued out [*792 his writ and declared in the action, not only for the several trespasses in the introductory parts of the third, fourth, and last pleas respectively, and in the declaration, in that behalf mentioned, and in those pleas attempted to be justified,—that is to say, the trespasses in and to the dwelling-house, and seizing and taking the goods,-but also for that the defendants, at the said times when, &c., ejected, expelled, put out, and amoved the plaintiff and his family, servants, and lodgers from and out of the possession and enjoyment of the said dwelling-house, with the appurtenances, in the declaration mentioned, and kept and detained them so ejected, and expelled for the said space of time in the declaration in that behalf mentioned, whereby the plaintiff during all such time lost and was deprived of the use and benefit of his said dwelling-house, &c., which said trespasses above newly assigned were other and different trespasses than the said trespasses in the said third, fourth, and last pleas mentioned, and therein attempted to be justified. It be doubted whether the matter contained in this new assignment would, on general demurrer, constitute a good declaration in trespass. It does not state that the defendants committed any assault upon the plaintiff; but that they ejected and expelled him and his family, servants, and lodgers from the dwelling-house. Removing a person from the possession of a dwelling-house is a trespass to a dwelling-house. A trespass is personal because it is an injury to the person. This is an injury to the dwelling-house within the meaning of, and justified by, the pleas. I therefore think that the new assignment is bad, and consequently that the judgment must be for the defendants.

may

[*793

CRESSWELL, J.-I am also of opinion, for the reasons *given by my brother MAULE, that the defendants are entitled to judgment on this demurrer. The new assignment shows the trespass complained of is a matter that has already been justified.

TALFOURD, J., concurred.

Judgment for the defendants.

MONYPENNY v. DERING and Others.(a)

The testator devised lands to P. M. (his brother) for life, remainder to the use of the first son of the body of P. M. for life, remainder to the use of the first son of the body of such first son, and the heirs male of his body; and in default of such issue, to the use of all and every other son and sons of the body of his said brother P. M., severally and successively, according to seniority of age, for the life interest and limitations as he had before directed respecting the first son and his issue; and, in default of issue of the body of his said brother P. M., or in case of his not leaving any at his decease, to the use of his brother T. M. for life, remainder to T. M., the eldest son of T. M. for life, remainder to the first son of the body of T. M. the son, and the heirs male of his body; and, in default of issue of the body of T. M. the son, to the use of all and every other the son and sons of the body of the testator's brother T. M., for the like estates and interests, severally and successively, according to seniority of age; and, in failure of all such issue of the body of his said brother T. M., to the use of him, his heirs and assigns, for (ver: and the testator declared, that, if his said brothers, or either of them, or either of their issue, should become entitled to the estate, or any part thereof, of E. Joddrell, the estate theretofore devised for the benefit of his said brothers and their issue should become and be and remain to the use of the next person entitled thereto, as they would have done if the person so succeeding to the Joddrell estate were actually dead.

By a codicil, the testator devised the same lands to his wife for life, and, after her decease, to the same uses as were declared by his will.

The testator's brother P. M., after the death of the widow, viz., in Michaelmas Term, 1827, suffered a recovery of the devised estates, to the use of the said P. M. in fee.

By a settlement on the marriage of R. J. M. (nephew of P. M.) with Susannah M., dated the 10th of June, 1835, P. M. charged the estate with a jointure of 3007. per annum to her in the event of her surviving them, P. M. and R. J. M.

In January, 1841, P. M. died without ever having had any issue, and having by his will devised the estates in question to his nephew R. J. M. for life, with remainder to his eldest son R. P. D. M. for life, remainder to his first and other sons successively in tail male, with divers remainders over.

In September, 1842, R. J. M, died, leaving his widow Susannah M. and R. P. D. M., his only son (then an infant), him surviving:

Held, first, that the testator's brother P. M. took an estate for life in remainder after the life estate of the widow:

Secondly, that T. G. M. took an estate for life in remainder after the life-estate of P. M., contingent on P. M. not leaving any issue at his decease, and determinable on his (T. G. M.'s) becoming entitled to the Joddrell estates; and also a remainder in tail general after the estatetail of R. T. G. G. M. (son of T. G. M.):

Thirdly, that R. T. G. G. M. took a contingent remainder in tail male after the determination of the life-estate of his father T. G. M.:

Fourthly, that P. M. acquired no estate or interest under the recovery:

Fifthly, that Susannah M. took no estate or interest under the deed of the 10th of June, 1835: Sixthly, that the co-heirs in gavelkind took a remainder in fee after the several estates above mentioned.

THE following case was sent by his Honour Vice-Chancellor WIGRAM for the opinion of this Court:-James Monypenny, late of Maytham Hall, in the parish of Rolvenden, in the county of Kent, was, *794] at the time of the making of his last will and testament hereinafter mentioned, and thenceforth up to and at the time of his death, seised in fee-simple of, or otherwise well entitled to, divers heredita(a) The plaintiff in the suit was Robert Thomas Gybbon Gybbon Monypenny.

The defendants were,-Robert Dering, Thomas Gybbon Monypenny; Robert Phillips Dear den Monypenny, an infant, by James Dearden, his guardian; James Isaac Monypenny; Phillips Monypenny; William Backhouse Mony penny; Charles Dawson; William David Catheart Monypenny, and Thomas Phillips Blackwell Monypenny, Richard James Laud Monypenny, James Robert Blackwell Monypenny, and Phillips Howard Monypenny, infants, by John Cavell, their guardian; Susannah Monypenny; Peregrine Royds Dearden; John Corsley; and Elizabeth Charlotte, now the wife of Henry Doyle Sewell.

ments and premises in the said county of Kent, respectively called Maytham Hall Estate, and Lower Maytham Hall Estate, all which said hereditaments and premises were of gavel-kind tenure.

The said James Monypenny, being so seised or entitled as aforesaid, and being of sound and disposing mind, memory, and understanding, on the 11th of February, 1804, duly made and published his last will *and testament in writing, dated the 11th day of February, 1804, [*795 and duly executed and attested as by law was then required for passing real estates by devise, and thereby he devised the said Maytham Hall Estates as follows:-"I give and devise my said house called Maytham Hall, with all and every the appurtenances, to the uses, intents, and purposes following, that is to say, To the use, intent, and purpose that my brother Phillips Monypenny shall receive and take the rents, issues, and profits thereof for and during the term of his natural life, without impeachment of waste; and, from and immediately after his decease, to the use of the first son of the body of the said Phillips Monypenny for and during the term of his natural life; and, from and immediately after his decease, to the use of the first son of the body of such first son, and the heirs male of his body; and, in default of uch issue, to the use of all and every other son and sons of the body of my said brother Phillips Monypenny, severally and successively, according to seniority of age, for the like interests and limitations as I have before directed respecting the first son and his issue: and, in Cefault of issue of the body of my said brother Phillips Monypenny, or in case of his not leaving any at his decease, to the use of my brother Thomas Monypenny for and during the term of his natural life, without in peachment of waste; and, from and immediately after his decease, to the use of Thomas Monypenny, the eldest son of my said brother Thomas Monypenny, for and during the term of his natural life, withcut impeachment of waste; and, from and immediately after his decease, to the use of the first son of the body of the said Thomas Monypenny, son of my said brother Thomas Monypenny, and the heirs ale of his body; and, in default of issue of the body of the said Thomas Monypenny the son, to the use of all and every other the son and sons of the body of my said *brother Thomas Monypenny, for the like estates and interests, severally and successively, ac[*796 cording to the seniority of age: And, in failure of all such issue of body of my said brother Thomas Monypenny, to the use of him, his heirs and assigns, for ever. And I do hereby declare, that, if it shall happen at any time hereafter that my said brothers, or either of them, their or either of their issue, shall become entitled to the real or copyhold estate, or any part thereof, late of Elizabeth Joddrell, widow, daughter of the late Phillips Gybbon, situate in the said parish of Rolvenden, or in the parishes of Benenden, Tenterden, or either of them, or elsewhere, then and in that case, and immediately upon such

event taking place, the said estates hereinbefore devised for the benefit of my said brothers and their issue shall be and remain to the use of the next person entitled thereto under and by virtue of this my will, in the same manner as they would have done if the person so succeeding to the said estate late of the said Elizabeth Joddrell were actually dead. And I declare that my said devisees, as they may hereafter respectively become entitled to my said estates, shall be at full liberty to fell and cut all such timber and underwood as will not improve by standing, and shall not be impeached or impeachable for such waste; and shall and may, as they respectively become entitled, grant leases of my said estates, or any part or parts thereof, not exceeding seven years, so that such lease and leases be granted for the best and utmost improved rent that can be procured for the same, and so that no sum or sums of money be paid by any lessee or lessees in consideration of such lease or leases."

After the date of the will, and before the date of the codicil afterwards stated, the testator's brother Thomas Monypenny died, leaving his son Thomas, named in the *will, him surviving; and such *797] son afterwards took the name of Thomas Gybbon Monypenny. On the 25th of July, 1818, the said testator James Monypenny, being of sound and disposing mind, memory, and understanding, duly made and published a codicil to his said will, dated the said 25th of July, 1818, and executed and attested as by law was then required for passing real estate by devise, and therein recited that his brother Thomas had died; and, after reciting that by his said will he gave and devised his said house called Maytham Hall, with all and every the appurtenances, unto and to the uses in the said will expressed, he revoked the said devise, and did thereby give and devise his house called Maytham Hall, with all and every the appurtenances, to the uses, intents, and purposes thereinafter expressed and referred to, that is to say, to the use, intent, and purpose that his wife should receive and take the rents, issues, and profits thereof from the time of his decease for and during the term of her natural life, without impeachment of waste, but subject to the keeping up, supporting, and maintaining the buildings and fences belonging thereto; and, from and immediately after her decease, to such and the same uses as were declared of the said hereditaments by his said will, and subject to the declaration contained in his said will in case his said brothers, or either of them, their or either of their issue, should become entitled to the said estate of Elizabeth Joddrell, widow. And the said testator ratified and confirmed his will in all other respects.

The said testator James Monypenny afterwards made two other codicils to his said will, neither of which in any manner affected the disposition of his real estate made by his said will and first codicil.

The said testator James Monypenny died in June, 1822, without