and case where case (q). If a sheriff continues in possession after the return day of the writ, that irregularity makes him a trespasser ab initio, but will not support the allegation of a new trespass committed by him after the acts which he justifies under the execution (r).

poor,

Trespass will not lie against an officer for taking goods or cattle by virtue of a replevin (s), unless a claim of property be made at the time when the officer comes to demand them. Trespass will not lie against a coroner for causing a person to be put out of the room where an inquest was about to be holden, after his refusal to depart. It did not appear that the plaintiff had any interest in the matter of the inquest which the coroner was about to take, or any information to offer, which might further the object of the inquiry (t). If a person rated to the poor, object to the rate (u), e. g., because it is a prospective rate, he ought to appeal to the next sessions; and if he do not, he cannot maintain trespass against the overseers of the who distrain on him for non-payment of the rate. The house of the plaintiff, an uncertificated bankrupt, was broken open, and effects acquired by him, subsequently to his bankruptcy, were taken by the defendants, who had become his creditors since the bankruptcy, and did not know who were the assignees under the bankruptcy. The bankrupt having sued the defendants in trespass, they obtained, after a rule for plea, a surrender of the assignees' interest in the effects seized: it was holden (x), that this was a ratification of the seizure, and that the plaintiff could not recover. So where the assignees of an uncertificated bankrupt, by agreement, for a valuable consideration paid to them by a third party, had left the bankrupt's furniture, &c. in his possession, and afterwards, notwithstanding such agreement, seized the same, it was holden (y), that they were justified in so doing, an uncertificated bankrupt not being entitled to retain any property against his assignees.

III. Of the Declaration.

Venue. The action of trespass quare clausum fregit is a local action, and consequently the venue must be laid in the county where the land lies; for otherwise the plaintiff, on the general issue, may

(q) Winterbourne v. Morgan, 11 East, 395. See Etherton v. Popplewell, ante, p. 681.

(r) Aitkenhead v. Blades, 5 Taunt. 198.

(8) Per Holt, C. J., in Hallett v. Byrt, Carth. 381.

(t) Garnett v. Ferrand and another,

6 B. & C. 611.

(u) Durrant v. Boys, 6 T. R. 580. Secus, if he has no land in the parish in which the rate is made. Weaver v. Price, 3 B. & Ad. 409. See ante, p. 1173. (x) Hull v. Pickersgill, 1 Brod. & Bingh. 282.

(y) Nias v. Adamson, 3 B. & A. 225.

be nonsuited at the trial, unless advantage be taken of the stat. 3 & 4 Will. IV. c. 42, s. 22, (see ante, p. 494,) under which local actions may be tried and writs of inquiry executed in any county, if court or judge shall so order; but trespass for taking goods is transitory, and the venue may be laid in any county; subject, however, to its being changed upon an application to the court, supported by the usual affidavit, if not laid in the county where the action arose. declaration ought to allege the commission of the fact directly and positively, and not by way of recital, e. g., for that on such a day the defendant broke and entered the plaintiff's close, and not for that, whereas, &c.

The

By R. G. H. T. 4 Will. IV. several counts in trespass for acts committed at the same time and place are not to be allowed.

Day. It is not necessary to state the precise day on which the trespass was committed; it will be sufficient to insert any day before the commencement of the action. Formerly, in order to avoid the necessity of bringing several actions, it was usual for the plaintiff, in cases where the nature of the trespass permitted it (4), to declare with a continuando, as it was termed, that is, that defendant on such a day committed certain trespasses (specifying them), continuing the same trespasses from such day to such a day, at divers days and times; and if, as was generally the case, the declaration contained a charge for some acts which did not lie in continuance, as well as for some which did, then the continuing was expressly confined to those trespasses which did lie in continuance (5). This was the regular mode of declaring, but it frequently happened through inadvertence, that the continuando was not so restrained, but was applied to all the trespasses by the general words transgressiones prædictas continuando, in which case objections used to be made; but the courts, in order to prevent judgments being arrested on this ground, laid down a rule (z), that where several trespasses were laid in one declaration, some of which might be laid with a continuando, and some not, and the continuando, instead of being confined to such

(z) Gillam v. Clayton, 3 Lev. 93; Brook v. Bishopp, Salk. 639. See also

Butler v. Hedges, 1 Lev. 210, and Fontleroy v. Aylmer, Lord Raym. 239.

(4) Treading down and consuming grass, &c. with cattle, was considered as a trespass which lay in continuance; but taking a horse, killing a dog, cutting down a tree, and the like, being acts, which, when executed, could not be repeated, as they terminated upon the commission of them, were holden not to lie in continuance.

(5) See Co. Ent. tit. Trespass, p. 4, where the declaration stated, that the defendant, on such a day, broke the close of the plaintiff, and eat up, trod down, and consumed the grass there growing, with cattle, and continuing the said trespass as to the eating up, treading down, and consuming the said grass from the day aforesaid until such a day, &c.

as lay in continuance, went to all, the court, after verdict, would restrain the continuando by intendment to those trespasses which might be laid with a continuando. The form of declaring with a continuando has fallen into disuse, the language of the modern declarations being, "that defendant, on such a day, in such a year, and on divers other days and times, between that day and the day of the commencement of the suit, committed several trespasses. It will be perceived, that the principal object of the ancient and modern form is the same, viz. to comprehend several trespasses under one declaration. In substance, also, both forms are the same: but the modern form is more concise, and it is attended with this further advantage, that it does not afford any scope for those nice and subtle objections, which used to be raised on the difference between acts which lay in continuance and acts which did not (6). Still, however, care must be taken not to allege that defendant committed a single act, or an act which terminated in itself, on divers days and times, for that would be absurd (a), and afford just cause for special demurrer.

Formerly, in trespass quare clausum fregit, the plaintiff might have declared generally without naming the close (b); but now, by R. G. H. T. 4 Will. IV., the close or place in which, &c. must be designated in the declaration by name or abuttals, or other description, in failure whereof the defendant may demur specially. A party is

not to be turned round on account of some minute variance in one of several particulars, but there must be a general accurate correspondence, faithfully describing the close in substance, and conveying full information to the defendant of the place in which he is alleged to have committed the trespass (c).

The close (d) in which, &c. does not mean the whole close referred to in the declaration, but the place in which the trespass is proved to have happened, and the defendant may so apply it. Where the plaintiff had named the close in his declaration, and the defendant pleaded liberum tenementum generally, without giving any further description of the close; it was holden (e), that the plaintiff was not

(a) See English v. Purser, 6 East, 395. (b) 2 Bl. 1089.

(c) Per Lord Denman, C. J., delivering judgment of the court in Webber v. Richards, 1 G. & D. 114.

(d) Richards v. Peake, 2 B. &. C. 918,

recognized in Bassett v. Mitchell, 2 B. & Ad. 99.

(e) Cocker v. Crompton, 1 B. & C. 489, recognized since the new rules in Lempriere v. Humphrey, 3 A. & E. 181; 4 Nev. & M. 638.

(6) If by continuance, as applied to this subject, trespasses without any intermission were to be understood, it is scarcely possible to conceive many acts of which continuance, in this strict sense, could justly be predicated. Consuming and spoiling grass, &c., with cattle, which may be presumed to be levant and couchant on the land, day and night, is one instance, but it would be difficult to enumerate many more.

VOL. II.

2 T

driven to a new assignment, but was entitled to recover upon proving a trespass done in a close bearing the name given in the declaration, although the defendant might have a close in the same parish known by the same name.

In trespass for taking goods, the goods must be specified (ƒ), and an omission in this respect will not be aided even by verdict (g). The declaration must also state, that the land or goods were the plaintiff's land or goods; hence, if the words "of the plaintiff," or "his," be omitted, the declaration will be bad; but this omission may be aided by pleading over (h). In declarations for taking animals feræ naturæ, it must be stated that the animals were either dead, tame, or confined; otherwise property in the plaintiff cannot be alleged; at least such allegations will be bad on demurrer. In trespass for taking duas damas ipsius plaintiff, in a certain close of the plaintiff, called the park (i); on general demurrer, the declaration was holden to be bad, because a person cannot have property in deer unless they are tame and reclaimed (7). The value of fixtures may be recovered under the terms, "goods, chattels, and effects," in a declaration in trespass (k). As to the necessity of alleging the trespass vi et armis and contra pacem, see ante, p. 28.

(f) 5 Rep. 34, b.

(g) Wyat v. Essington, Str. 637; Bertie v. Pickering, 4 Burr. 2455.

(h) See an instance of this kind in

Brooke v. Brooke, 1 Sidf. 184.

(i) Mallocke v. Eastly, 3 Lev. 227. (k) Pitt v. Shew, 4 B. & A. 206.

(7) John Rough being convicted on an indictment for stealing a pheasant*, value 40s., of the goods and chattels of H. S., all the judges, on a second conference, in Easter Term, 1779, after much debate and difference of opinion, agreed that the conviction was bad; for in cases of larceny of animals feræ naturæ, the indictment must show that they were either dead, tame, or confined; otherwise they must be presumed to be in their original state; and that it is not sufficient to add "of the goods and chattels" of such an one.

*Rough's case, 2 East, P. C. 607.

IV. Of the Pleadings; and herein of the New Rules;

1. Of the Plea of Not Guilty, p. 1325.

2. Accord and Satisfaction, p. 1326.

3. Liberum Tenementum, p. 1327.

4. Estoppel, p. 1328.

5. License, p. 1329.

6. Process, p. 1332.

7. Right of Common, p. 1333.

8. Right of Way, p. 1334.

9. Tender of Amends, p. 1340.

1. Of the Plea of Not Guilty.

THE general issue in this action is, not guilty. Under stat. 3 & 4 Will. IV. c. 42, s. 1 (7), (which provides that the contemplated rules of pleading shall not disable any person from pleading the general issue, and giving the special matter in evidence, where by statute he may now do so,) an overseer sued in trespass for taking A.'s goods, may still prove, on plea of not guilty, that he, as overseer, distrained the goods for a poor's rate due from B., and that the goods were the goods of B., and not of A. (m). Wherever a statute says that a party may prove his defence under the general issue, it means that he may prove the whole matter of defence (n). By R. G. H. T. 4 Will. IV., in actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially. In actions of trespass de bonis asportatis, the plea of not guilty shall operate as a denial of the defendant having committed the trespass alleged by taking or damaging the goods mentioned, but not of the plaintiff's property therein. To a declaration for breaking and entering plaintiff's close, the defendant pleaded-1st, not guilty; 2ndly, that the close was not the close of the plaintiff; 3rdly, that the close was the soil and freehold of the defendant: it was holden (0), that evidence of possession was sufficient to entitle the plaintiff to a verdict on the second plea. By stat. 11 Geo. II. c. 19, s. 21, "In actions of trespass brought against any person

(1) See ante, p. 148.

(m) See stat. 43 Eliz. c. 2, s. 19; Haine v. Davey, 4 A. & E. 892; 6 Nev. & M. 356.

(n) Per Patteson, J., S. C.

(0) Heath v. Milward, 2 Bingh. N. C. 98, recognized by Patteson, J., in Carnaby v. Welby, 8 A. & E. 878.