The plaintiff sues the defendant in an action of trespass and ejectment, to recover possession of a lot of land described in the declaration. The defendant pleads in bar a judgment recovered in a former action which the defendant alleges settled the title to be in himself. The former action was trespass for breaking and entering a close specifically described, and the plea by the plaintiff then defending was liberum tenementum. The plaintiff replies that the former action "was an action of trespass for breaking and entering the plaintiff's close in said action described, and for treading down the herbage thereon, and prostrating and carrying off a certain building thereon standing, and that the testimony produced by the plaintiff in said action showed that said alleged trespasses, to wit, the prostrating and carrying away said building, and treading down said herbage, were committed in the northwesterly corner of the close in said action described, and that no testimony was produced in said action showing any trespasses in any other part of said close in said action described. And the plaintiff avers that the close described in this suit does not include that portion of the close in which the trespasses aforesaid were proved to have been committed in said action recited in the defendant's plea." The defendant has filed a rejoinder to this replication, which the plaintiff moves to have stricken out as raising a false issue, being inconsistent with previous decisions in this case.10 R.I. 184.
We have decided that the title of the entire close described in the former action was not in issue in that action, unless the *Page 194 close was everywhere trespassed upon; but that the only question there was whether the place of the alleged trespasses belonged to the then plaintiffs or the city of Providence, and, consequently, that whatever may have been tried, the title only of the place of the alleged trespasses was settled by the verdict and judgment thereon. The plaintiff in this action alleges in effect in its replication, that no part of the close described in the former action in which the trespasses there alleged were committed is sought to be recovered in the present action. The replication, if true, is a complete answer to the defendant's plea. The rejoinder, therefore, ought either to traverse it and conclude to the country, or to confess it and set up some new matter in avoidance. The rejoinder does not simply traverse it; neither does it squarely confess it; it meets it evasively. The rejoinder, however, concludes with a verification, and therefore must have been intended to be a confession and avoidance. But, considering it as such, it amounts to this, namely: that though it is true that none of the trespasses alleged in the former action were committed upon any part of the close which is sought to be recovered in the present action, yet that there was in fact no testimony produced on the trial of the former action to show the locus in quo of the trespasses; but it was in open court assumed by the plaintiffs and admitted by the defendants that they were committed over every part of the close described, and that thus the finding or verdict of the jury upon the question of title, which was against the present plaintiff and in favor of the present defendant, extended to every part of the close described, and judgment was entered thereon accordingly. The matter, therefore, which is set up in avoidance is, that in the former action the jury did not confine their finding to the question put in issue by the pleadings, but in fact went beyond it, with the acquiescence of the parties, and determined the title not simply of the place of the trespasses alleged, but of the entire close described, in favor of the defendant. The difficulty with this is that the verdict of the jury, and the judgment of the court thereon, in so far as they go beyond the question put in issue by the pleadings, are neither of them effectual as estoppels by record, if indeed either of them, in point of law, can be considered to have been intended to have any effect *Page 195 beyond that of settling the title of the locus in quo of the alleged trespasses. Dunckle v. Wiles, 5 Den. 296; ThePeople v. Johnson, 38 N.Y. 63; Tams v. Lewis, 42 Pa. St. 403; 1 Greenleaf's Evidence, § 528. In other words, a question which is tried without being in any way involved in an action is not concluded by the verdict or judgment in it.
Motion granted.