A license to do an act which, without the license, would be a trespass, cannot be set up as a justification unless it is specially pleaded. Where the plaintiff has testified that there was no license, the defendant may cross-examine on that point (without having pleaded a license), to show the fact in mitigation of damages.
PER CURIAM.
The record shows that one of the plaintiffs, in an action of trespass quare clausum, testified in direct examination that the defendant entered without license or permission. The defendant was stopped in cross-examination upon this point, upon the ground that he had not pleaded a license.
A license to do an act, which would otherwise be a trespass, cannot be set up as a justification unless it is specially pleaded. 1 Chit. Pl. (16 Am. ed.) *540.
Without such plea judgment must be given for the plaintiff. But where the plaintiff has testified that there was no license, the court is of opinion that the defendant has the right to cross-examine on that point, and to show the fact in mitigation of damages; otherwise the plaintiff would have the benefit of his own testimony on that point and at the same time exclude a fact which would have a material bearing upon the character of the acts done. Brown v. Perkins, 1 Allen, 89.
Upon this point the defendant's exceptions are sustained and a new trial granted.
Other exceptions overruled.