The opinion of the court was delivered by

The case is before us on special demurrer to the replication. The declaration counts on a single act of trespass, without continuation or repetition. The defendant justifies, setting forth by plea an al'eged right of way, and that the alleged trespass was the doing what he lawfully might do in removing obstructions placed across said way by the plaintiff. The plaintiff replies, denying the alleged way and right, and that the fence named in the declaration and plea was across or obstructing any highway, with de injuria, and closing with verification and prayer for judgment. This is followed by new assignment, alleging that the action is brought, not only for the trespasses justified by the plea, but also for that the defendant on the several days and times mentioned in the declaration, on other and different occasions, &c., following the form in 3 Chit. PI. 1218.

By traversing the plea, as Avell as by what is said in the new 'assignment, the plaintiff is still pursuing the. justified trespass as *32being one for which he brought his suit. That being so, it is not permissible to him to bring upon the record other acts 'of trespass, they not being within the scope of the declaration. | jNew assignment means specially designating a cause of action \/within the scope of the declaration, and other than the one covered by the plea. But when the declaration embodies only a single act of trespass, and the plaintiff by his replication treats that as a cause of action for which he brought his suit, the declaration is thereby exhausted. There is no subject-matter remaining on which a new assignment can operate. And it is in this respect that the plaintiff seems to have fallen into mistake. The precedent in 3 Chit. PI. 1218, which he followed, is a proper one for a proper case. But that is when the declaration may embody more than a single act of trespass. In the present case, either the plaintiff should not have traversed, or not new assigned. It was at his option which to do. If the trespass justified in the plea is the one sued for, then a traverse would be proper. If the trespass sued for was extra viam, then he might new assign. In such case he would be pursuing for a single act of trespass, which, under the declaration, may have been intra, or extra viam. This whole subject is well developed in 1 Chit. PI. 626 to 634, and is illustrated by the precedents and notes in Yol. 3.

It is very plain that the traverse with de injuria should conclude to the country. That is the end of the pleading with reference to the trespass which is justified by the plea. -By the traverse with de injuria, the plaintiff puts that justification in issue, and he should tender such issue. The defendant, after such reply to his plea, would have nothing to say but to re-assert the very matters traversed. Authority need not be cited on this subject. The new assignment, when properly resorted to, presents subject-matter for a new and distinct answer by the defendant, and for a distinct .issue, to be formed by the course of pleading proper to the matter new assigned. The other questions made in the argument need not be discussed in disposing of the case.

1 he judgment is reversed, with leave to reply anew, and the cause remanded.