
    Caleb Snow vs. Solomon J. Chatfield.
    Under an answer denying “ each and every allegation ” of a declaration which alleged that the defendant “ wrongfully, wilfully and without right ” dug a ditch in the highway, the defendant cannot justify by showing that be acted by the authority of the surveyor of highways.
    Action of tort. The declaration alleged that the defendant “ Vv rongfully, wilfully and without right ” dug and excavated a sluice way and ditch along the line of a highway in West Stock-bridge, and near the plaintiff’s dwelling-house, and thereby injured the house. The answer denied “ each and every allegation contained in the plaintiff’s declaration.”
    At the trial in the court of common pleas, the defendant offered to show that the sluice way and ditch were excavated with the consent and approbation of the surveyor of highways. Mellen, C. J. admitted the evidence for the purpose of rebutting any inference of the wilfulness of the act complained of; but refused to admit it for the purpose of establishing a legal justification, on the ground that no such defence was set up in the answer. The verdict was for the plaintiff, and the defendant alleged exceptions.
    
      J. E. Field, for the defendant.
    The declaration alleged that the defendant “without right” dug a ditch ; the answer denied each and every allegation in the declaration. Under this answer the defendant might show a justification in law. St. 1852, c. 312, § 14. Knapp v. Slocomb, 9 Gray, 73.
    
      C. N. Emerson, for the plaintiff,
    cited 1 Chit. Pl. (5th ed.) 505; Milman v. Dolwell, 2 Campb. 379; Bennett v. Olcott, 2 T. R. 168; Demick v. Chapman, 11 Johns. 132; Root v. Chandler, 10 Wend. 112; Babcock v. Lamb, 1 Cow. 238; Van Buskirk v. Irving, 7 Cow. 35; Spear v. Bicknell, 5 Mass. 125; Waters v. Lilley, 4 Pick. 147; Ruggles v. Lesure, 24 Pick. 187; St. 1852, c. 312, § 18; Granger v. Ilsley, 2 Gray, 522; Middlesex Co. v. Osgood, 4 Gray, 448; Mulry v. Mohawk Valley Ins. Co. 5 Gray, 541.
   Dewey, J.

The evidence offered by the defendant was to prove a substantive fact intended to be relied on by the defendant in avoidance of the action, and should therefore, under the provisions of St. 1852, c. 312, § 18, have been set forth in precise terms in the answer. It is no excuse for not doing this that the declaration alleges that “ the defendant wrongfully, wilfully and without right” dug and excavated a sluice way or ditch along the line of the highway and near the dwelling-house of the plaintiff, thereby injuring the plaintiff’s dwelling-house. Such form of declaring does not require the plaintiff to prove as a part of his case in the first instance that the same was not done by a surveyor of highways, acting under the written approbation of the selectmen of the town. The proof of the acts set forth in the declaration, and the alleged injury to the plaintiff thereby, would require of the defendant to justify, if he would maintain his defence. Such justification or substantive defence should be stated in his answer. He not having done so, but merely filed a general denial of “ each and every allegation contained in the plaintiff’s declaration,” has no right upon these pleadings to justify his acts under any authority derived from a surveyor of highways. Exceptions overruled.  