We perceive no reason for granting a new trial. The superior court did not refuse to charge the jury, as requested ; nor did it charge them contrary to the request of the defendant’s counsel; nor at all, otherwise than as the respective claims of the parties rendered proper. Indeed, we do not understand it to be claimed, that it is not so ; but rather, it is said the jury’s attention was diverted from the real point in controversy; in which, we think, the defendant’s counsel are not borne out by the facts stated in the motion. The instructions in fact given, were, we think, called for; and ‡ they contain no principles of law, which are not acknowl- i edged and sound; nor was the jury’s attention diverted4 from such questions as the parties made on the trial.
Nor do we discover any errors in the pleadings, which will sustain the motion in arrest. We very much doubt if the record shows the facts to be as claimed by the defendant’s counsel; or if so, that they are entirely correct in their view of the law as applicable to the facts.
It is said, there is a traverse of an immaterial allegation in the issue closed upon the plea to the second new assignment, in this, that the way to the Treat lot, is denied by the plaintiff’, while it is only set out in the defendant’s plea as inducement. As we read the plea, it first sets up distinctly a way through the lane from the highway, which way was, on the 31st day of July. 1824, and long had been, used as a convenient and necessary way, by Robert Robbins, sen,, to go to his lands West, of which No. 5, it is agreed, was a part, at that time. And further, it states that this way was appurtenant to the Treat lot. The plea then sets up a deed from Robert Robbins, sen., to Robert Robbins, jun., of a part of these West lands, viz., what is now No. 9 and No. 5; and that a way is expressly granted from the: West end of the lane *374to, these lots, by the deed of July, 1824 ; and then it further ' that the “rights, privileges, and appurtenances” thereto belonging — i. e., to No. 5 — are, through a grant to the defendant, from Robert Robbins, jun., of No. 5, vested in the defendant. Now, it is not so clear, that the defendant has not tendered for issue more than the right of way created by the deed of 1824. Why else does he set out so particularly the ancient right of way of Robert Robbins, sen., from the highway to his lands West? It is certainly an unnecessary inducement. But, be this as it may, the jury have found all the ways and rights set up by the defendant, as an existing defence, in this case, against him ; and among them, the way under the deed of July, 1824, as fully as if it had been pleaded alone, as indeed it may be held to be. Besides, if the defendant is correct, taking issue upon an inducement is no ground of arrest. The rules on this point are well laid down in Archbold and in Stephens, on Pleading;. Stephens says, “a traverse of matter not traversable; or an immaterial traverse ; or a want of inducement; or a defective or irregular inducement; or where the traverse is inconsistent with the inducement; or where the traverse is double, or too large, or too narrow; in all these cases, advantage must be taken by special demurrer: if the adversary demur generally, or plead over, the defect is waived.’’ Steph. Plead. 105.
It is next said, the plaintiff traverses matter not alleged ; for that in the plaintiff’s replication to the first plea, he denies there was a right of way in Robert Robbins, sen. Perhaps this is the fair construction of the replication ; but it obviously has nothing to do with the merits of the issue. The jury have found, that Robert Robbins, jun. and the defendant under him, had not the right set up as the defence in the case, and that is enough; the rest is surplusage, as much as if the plaintiff' had replied there was no right of way, and the defendant wore a white hat when he committed the trespasses. The defendant chose to take issue on both facts; and he may not complain of the verdict of the jury.
It is further said, that in the replication to the second plea of the defendant, the plaintiff traverses the conveyance of No. 5 to the defendant, while no such conveyance is alleged. We think there is substantially such an allegation in the plea; *375and that that conveyance or prior ownership of R. Robbins, is set up as the very basis of the right of way to No. 5; , 1 . . . , if otherwise, it is mere surplusage.
It is further objected, that the plaintiff makes no answer to the defendant’s pleas. We think this objection is without foundation ; but at all events, it works no prejudice to the defendant’s defence. We say, the objection is without foundation. The plaintiff, in his declaration, describes the locus in quo, as including the lane and No. 8 and No. 9. The defendant pleads a right of way through the lane to the Treat lot. The plaintiff, protesting against any such way to the Treat lot, replies other and different trespasses : the defendant rejoins to the new trespasses, a former judgment before Justice Galpin, The plaintiff, wishing to avoid issue here, protesting against such judgment, now assigns other and different trespasses. To this the defendant sets up a right of way vested in Robert Robbins, jun., under his father, Robert Robbins, sen., and now vested in the defendant, under Robert Robbins, jun. Here, issue is formed ; and it is found against the defendant. But the supposed difficulty, in this mesh of legal forms, is just here. The plaintiff, in his first and second new assignments, after his protests, uses this language; “ Nevertheless, in this behalf the plaintiff says, that he brought his said action, not only for the trespasses in said plea mentioned, and therein attempted to be justified, but also for that the defendant, on the several days and times in the said declaration mentioned, with force, &c., broke, &c., and committed all the trespasses in said declaration mentioned; on other and different occasions, and for other and different purposes than in the said seventh plea mentioned, and in other and different parts of said close, out of the said way in that plea mentioned; which said trespasses newly assigned are other and Afferent trespasses than said trespasses in said seventh plea mentioned and therein attempted to be justified.” The defendant’s counsel insist, that the plaintiff’ should not reply, that he sued as well for the trespass, as admitted under the protests, as for other and different ones for which the plaintiff elects to proceed; for then, while on the record, there are trespasses confessed and not justified, there is a verdict for the plaintiff only. We are satisfied, the replication, by fair construction, amounts to this, that the plaintiff has *376not proceeded, and does not proceed, for the trespasses which the defendant justified, by a right of way to the Treat lot, or those for which a suit had been brought before Justice Gal-pin, but for other and different trespasses only ; and that any language in the replication to the contrary, may and should be controuled, by other and more clear parts of the same plea. We do not say, that the construction of the entire plea is free of doubts in the view of extreme technicality; but we cannot doubt that our construction is the true one, and best designed to produce justice. But the defendant is in no way injured. The jury gave damages only for the trespasses they tried; and indeed, only nominal damages were given on all the issues. The plaintiff had a right to elect for what trespasses he would go, and he has substantially done that in the pleadings. It is not the case of a single indivisible cause of action, cut up and sued upon in parts, but distinct and independent trespasses. In such cases, the plaintiff may, at any time, elect to go for some, and drop the rest. Suppose the plaintiff had sued for two entries, and proved one only; he would recover damages accordingly; but no verdict is of course rendered for the defendant, for the trespass not proved, or if proved, abandoned, on the trial.
We do not advise a new trial; nor is there error.
In this opinion the other Judges concurred.New trial not to be granted.
Nothing erroneous.