¶1TRESPASS for breaking the plaintiff’s close and cutting his timber thereon. Pleas, 1. Not guilty; 2. That a state road was established running through said close, and that the defendant, as a commissioner of the road, entered on the close and cut down and removed th.e trees growing in the road, &c. New assignment, that the 'suit was not only for the trespasses mentioned in the plea, but also for other trespasses out of the road. Plea to the new assignment, not guilty.
¶2Held, that the plaintiff by new assigning, without denying the special plea, admitted the existence and validity of the state road, and the defendant’s authority as set forth in the plea, and confined the issue to such trespasses as were alleged in the new assignment. 1 Chitt. Pl. 665.—1 Saund. 300, a, b, c, note.—2 Camp. 175.—White v. Conover, post, 462.