Gilbert v. Pritchard

The first count in the complaint alleges an assault and battery; the second alleges that defendants broke plaintiff’s close, on a day stated, and then and there trod down the grass and crops and assaulted and beat the plaintiff. The second count, as well as the first, alleges but one cause of action. It is what, under the old nomenclature, was known as trespass guare clausum fregit, the injury to the grass and crops and to the plaintiff’s person being stated, not as separate causes of action, but in aggravation of the trespass. Instances of this form of pleading were familiar under the old practice. ( Van Leuven v. Lyke, 1 Comst., 515 ; Howe v. *47Willson, 1 Denio, 181; Dunckle v. Kocker, 11 Barb., 887; Clark v. Van Vrancken, 20 Barb., 278.) And as there is nothing in the Code prohibiting a party from alleging in one count every item of damage he may have suffered from a single trespass, that form of pleading is still good.

The order appealed from should be reversed and the motion denied, with ten dollars costs and disbursements of the appeal.

Order reversed, with ten dollars costs and disbursements, and motion denied.