New or novel assignment
NEW or NOVEL ASSIGNMENT, pleading. Declarations are conceived in very
general terms, and sometimes, from the nature of the action, are so framed
as to be capable of covering several injuries. The effect of this is, that,
in some cases, the defendant is not sufficiently guided by the declaration
to the real cause of complaint; and is, therefore, led to apply his answer
to a different matter from that which the plaintiff has in view. For
example, it may happen that the plaintiff has, been twice assaulted by the
defendant, and one of the assaults is justifiable, being in self-defence,
while the other may have been committed without legal excuse. Supposing the
plaintiff to bring an action for the latter; from the generality of the
statement in the declaration, the defendant is not informed to which of the
two assaults the plaintiff means to refer. The defendant may, therefore,
suppose, or affect to suppose, that the first is the assault intended, and
will plead son assault demesne. This plea the plaintiff cannot safely
traverse, because an assault was in fact committed by the defendant, under
the, circumstances of excuse here alleged; the defendant would have a right
under the issue joined upon such traverse, to prove these circumstances, and
to presume that such assault, and no other, was the cause of action. The
plaintiff, therefore, in the supposed case, not being able safely to
traverse, and having no ground either for demurrer, or for pleading in
confession and avoidance, has no course, but, by a new pleading, to correct
the mistake occasioned by the generality of the declaration, and to declare
that he brought his action not for the first but for the second assault and
this is called a new assignment. Steph. PI. 241-243.
2. As the object of a new assignment is to correct a mistake occasioned by the generality of the declaration, it always occurs in answer to a plea, and is therefore in the nature of a replication. It is not used in any other part of the pleading.
3. Several new assignments may occur in the course of the same series of pleading.
4. Thus in the above example, if it be supposed that three distinct assaults had been committed, two of which were justifiable, the defendant might plead as above to the declaration, and 'then, by way of plea to the new assignment,, he might again justify, in the same manner, another assault; upon which it would be necessary for the plaintiff to new-assign a third; and this upon the first principle by which the first new assignment was required. 1 Chit. PI. 614; 1 Saund. 299 c.
5. A new assignment is said to be in the nature of a new declaration. Bac. Abr. Trespass I, 4, 2; 1 Saund. 299 c. It seems, however, more properly considered as a repetition of the declaration; 1 Chit. PI. 602; differing only in this, that it distinguishes the true ground of complaint, as being different from that which is covered by the plea. Being in the nature of a new or repeated declaration, it is consequently to be framed with as much certainty or specification of circumstances, as the declaration itself. In some cases, indeed, it should be even more particular. Bac. Abr. Trespass, I 4, 2; 1 Chitt. Pl. 610; Steph. Pl. 245. See 3 Bl. Com. 311; Arch. Civ. 318; Lawes' Civ. PI. Pl. 286; Doct. Pl. 318; Lawes' Civ. Pl. 163.