Ibid. 22. Bennet v. Filkins. Ibid. 209. Salmon v. Smith. Ibid 312. Rex v. Kilderby. 2 Salk. 641, 642. Green v. Goddard. In like manner, the reason of adding the traverse here appears to be, because the defendant justified the trespass at another time than that in the declaration, the trespass complained of being laid on the 1st day of April, and the trespass justified on the 1st day of August. See White v. Stubbs. Post, 294. It seems, however, to have been long since established, that the plaintiff is not tied to the time laid in the declaration, nor the defendant to that mentioned in the plea; but the former is allowed to give evidence of a trespass committed at any time before the commencement of the action, Co. Lit. 283. a. and the latter is at liberty to prove his justification on any other day. As the time is not material in evidence, neither is it in pleading, and therefore the general rule seems to be, that the plea ought to follow the day laid in the declaration. 1 Saund. 14. Hawe v. Planner. But the justification may be such as to make the time material, and then the plaintiff may vary in his replication from the day in the declaration without a departure. Thus where in an action of assault, battery, and false imprisonment on such a day, the defendant pleads a special matter of justification at another day, so that the day becomes material; as where he justifies as mayor or constable at such a time, but in truth, the trespass complained of was done by him when he was not mayor or constable, the plaintiff may reply an imprisonment, or, in other words, may new-assign the trespass at another day, and it is no departure, for the day in the declaration is not material. And in the present case, if the defendant had justified on the same day in the declaration, but in truth had put in his cattle at the time the field, or any part of it, was sown, and that was 11th, with an averment of its being the same trespass, it was adjudged that the plea was good without a traverse, and the addition of it, being specially shewn for cause of demurrer, made the plea bad. 2 Lutw. 1457. Hargrave v. Ward. So where in trespass clausum fregit, on the 7th day of May, the defendant justified the trespass on the 10th of May, and averred it to be the same trespass, the court on demurrer determined that the plea was good without a traverse of the trespass on the 7th of Muy. 1 Buls. 138. Vastenope v. Tayler. And also where in an action of trespass and false imprisonment on the last day of October, the defendant justified on the 13th of August, under a warrant from the sheriff, and averred it to be the same trespass, the court was of opinion that the plea was good without a traverse, the day not being material. Cro. Car. 228. Tyler v. Wall. So where in trespass for taking goods, the defendant justified at another time under a writ of fieri facias, and concluded with an averment of it's being the same trespass, and on demurrer the objection was, that the defendant, varying in the time of taking from that alleged in the declaration, ought to traverse any other taking, for the same goods might be taken at several times, and the averment of its being the same trespass was not sufficient; but it was decided that the plea was sufficient without a traverse. Sir T. Jones, 146. Allen v. Chamming. And in 1 Str. 694. Courtney v. Satchwell, which was trespass and false imprisonment, the defendant justified under a process out of the sheriffs' court in London, quæ est eadem, &c. and traversed being guilty aliter vel alio modo, the traverse was held ill on a special demurrer, the quæ est eadem, &c. being itself a sufficient traverse. See also Yelv. 122, 123. Lane v. Alexander. 1 Saund. 13, 14. Hawe v. Planner. the trespass the plaintiff intended by his declaration, he might shew that fact by way of new assignment. So in other actions, where the day in the declaration is not material, the plaintiff may, when it is rendered necessary by the defendant's plea, vary in his replication from the day, and it is no departure; but if the day in the declaration be material, as in an action upon a bond, bill of exchange, promissory note, and the like, the plaintiff in his replication cannot vary from the day without a departure. Cro. Eliz. 168. Smith v. Hillier. 1 Lev. 110, 111. Lee v. Rogers. 1 Salk. 222. Webley v. Palmer. Ibid. 223. Howard v. Jennison. 1 Lord Raym. 121. Serle v. Darford. 2 Lord Raym. 1015. 1 Str. 21. Cole v. Hawkins. 2 Str. 806. Matthews v. Spicer. With respect to the averment in the plea of its being the same trespass, a distinction is taken between a justification on the same, and on another day; in the former it is held to be unnecessary in some actions of trespass to conclude with such an averment, but in the latter it is thought to be a right thing so to conclude. As where in trespass clausum fregit on the 1st day of May, the defendant pleaded a licence on the same day, it was adjudged that there is no need of averring it to be the same trespass. So it is where in trespass for taking [2] Where the defendant justifies under process, the date of which he must of course set out, and which is subsequent to the day laid in the declaration, or where he pleads any other justification which requires a statement of dates, or is confined to a particular time, and it happens that the day laid in the declaration is inconsistent with those dates, or not included in that time, the defendant must allege a new day on which he avers that the trespass was committed, otherwise his plea would be manifestly incongruous. Willes, 202. Bell v. War goods the defendant justifies on the same day; or pleads son assault on the same day to an action of assault and battery. But if he justify on another day, or at another place, he ought to conclude his plea with an averment of its being the same trespass. 21 H. 7. 32. pl. 52. S. C. Fitz. Trespass. 248. Bro. Trespass. 219. and the same diversity is recognised in 1 Bulst. 138. Vastenope v. Tayler. Skin. 387. King v. Tebbart. But this distinction seems now to be of little use, as indeed it necessarily would be, as soon as it was fully established that the day and place in the declaration in such actions is not material, for the plea when properly drawn will follow the day in the declaration; but if it should vary from it, so that there is an apparent difference on the record between the trespass in the declaration, and that which is justified, the distinction will take place, and the plea must conclude with such an averment. 2 Lutw. 945, 946. Rowel v. Dyon. And at this day in a plea of son assault, or of a licence, it is neither necessary, nor very usual, to add an averment of its being the same trespass; but in trespass for taking goods, an instance can hardly be put of a justification in which it is not necessary to conclude with that averment, although the plea follows the day in the declaration. [7] dell. dell. And in such case he must either traverse all other days, or conclude his plea with an averment of quæ est eadem; but if he do both, the plea will be bad on special demurrer. If he follows the day in the declaration, which he ought always to do, unless he thereby renders his plea incongruous, it should seem that the averment of quæ est eadem can never be necessary; but as it does no harm, the present practice is, to add it in almost every case, the traverse of all other days having fallen into disuse. Co. So the place alleged in the declaration See further, 1 Lutw. 345. Pyke v. Pulin assault and battery, or trespass for leyn. Ibid. 618. Treene v. Hiccox, 6th taking goods is immaterial, being only exception. 2 Lutw. 1437, 1438. laid for a venue; and unless the justifi- Searle v. Darford. S. C. 1 Ld. Raym. cation be local, the defendant is bound 120. 3 Lev. 113. Bridgewater v. to follow it; for if he justify at another Betheway. 1 Leon. 39. Queen v. Ld. place, either with or without a traverse Vaux. 2 Mod. 271. Barker v. Warren. of the place in the declaration, the plea Carth. 326. Martin v. Wilsford. But is bad on a special demurrer. where the cause of the justification is Litt. 282. b. 1 Saund. 85. Wright v. local, as if in an action of false impriRamscot; and the rule is the same in sonment in Middlesex, the defendant, actions upon the case, assumpsits on justify as constable of the vill of B. parol promises, and in many other tran- in another county, or in another place sitory actions. Thus, where in trover in the same county, arresting the plainand conversion of six oxen in London, tiff for a breach of the peace; or as a the defendant pleaded that he seized justice of the peace in another county; them as waifs in the manor of D. in or justify damage feasant, or because Essex, and traversed that he was guilty the defendant offered to enter into his in London; it was adjudged that the house, in another county, or in another plea was bad, because it did not contain place in the same county; the defendant any local matter to make the place mate- must traverse the county of Middlesex, rial. Cro. Eliz. 174. Bullock v. Smith. [m] and not rest there, but also traverse And where in false imprisonment at every other county or place except that Bristol, the defendant justified arrest- which his justification is confined to. ing the plaintiff at Gloucester under a As where in trespass for taking goods commission of rebellion, and traversed in London, the defendant pleaded that the imprisonment at Bristol, the plea he let a dwelling-house in St. Paul, was held bad, because the matter of the Covent Garden, to the plaintiff, and justification was transitory, and not lo- distrained the goods for rent, and tracal, and therefore the defendant ought versed that he was guilty in London, or to have justified in the place where the elsewhere out of St. Paul, Covent Garaction was brought. Ibid. 184. Cow- den; and upon demurrer the traverse leigh v. Edwards. So where in assault was held ill, because the defendant might and battery in London, the defendant be guilty in another house within Covent pleaded son assault at D. in the county Garden. 1 Sid. 293. It seems the of S. and traversed that he was guilty form of the traverse ought to have in London; on demurrer it was ad- been, "Without this, that he the said judged that the plea was bad, because "A. (the defendant) is guilty of the the defence being transitory, the defend- "said trespass in London aforesaid, ant could not plead it in another place, and traverse the place where it was alleged. Ibid. 842. Purset v. Hutchings. [m] It was held, in fact, that the plea was bad, for that it amounted to the general issue. Had the action been trespass for taking the cattle, the plea VOL. II. PART I. or elsewhere, except in the said dwel"ling-house in St. Paul, Covent Gar“den aforesaid." See also Co. Litt. would have been good, as may be collected from the rest of the note: for the cause of justification as to the taking would plainly have been local. C 282. b. Cro. Eliz. 167. Smith v. Hillier. court will not change the venue. 2 Salk. 669. Anon. 1 Wils. 178. Herring v. Durant. 2 Term Rep. 238. Scott v. Brest. Ibid. 275. Watkins v. Towers. 7 Term Rep. 583. Mayor of London v. Cole. 7 Rep. 1. Bulwer's case. [o] The reason why the defendant, when his justification consists of transitory matter, is bound to follow the place in the declaration and cannot traverse it, seems to be, because he would otherwise be able to change the venue in a transitory action to any county he likes, in subversion of an ancient principle of law, which allows the plaintiff to lay the venue in such an action in any place he pleases. Co. Litt. 282. b. 1 Lutw. 14. Marshall v. Burnet. And on the other hand, the reason of traversing the place in the declaration when the justification is local, we have seen, is, because the defendant by this means may change the venue to the place alleged in the plea; for if issue be joined on the cause of the justification, and the locality of it be admitted thereby, then, according to another ancient principle of law, the venue must come from that place, whether it be in the same county, or in another; and if the cause be not tried there, the judgment at the common law was erroneous. Thus in Cro. Eliz. 261. Ford v. Brooke, cited in 1 Saund. 247. Craft v. Boite, where in an action of slander for perjury at Dale, in Essex, the defendant justified that the plaintiff was perjured at Westminster, and the venue was awarded to be from Westminster in Middlesex. So where in an action for calling the plaintiff a thief at Dale, in Essex, the defendant justified because the Ibid. 504. Thomson v. Clerk. Ibid. 705. [n] This seems to be a mistake; the plaintiff has his election either to take issue on the defendant's traverse, or to traverse the defendant's justification. See 1 Saund. 22. n. (2). [o] As to changing venues, see 1 Saund. 74. and the notes there. plaintiff had committed a robbery at Sale in the same county, the plaintiff replied,&c. de injuriâ sua propria absque, &c. the venue was awarded to be from Sale. Ibid. 870. Clerk v. James. Also, where in error on a judgment in case for words' laid to be spoken at B. in the county of Salop, the defendant pleaded he spoke them as a witness upon his oath on an issue tried at C. in the county of Somerset; the plaintiff replied, de injuriá sua propria, &c. and the cause being tried by a venire at B. the error was that it ought to have been by a visne of C. where the justification arose and it was held clearly to be a mis-trial, and not aided by the statute of jeofails, wherefore the judgment was reversed. Ibid. 468. Bowyer's case. S. C. Moor, 410. But where the matter of the local justification is false, being pleaded merely for the purpose of drawing the trial to that place, the plaintiff may traverse it, and the issue is to be tried in the county where the action is laid. As where in false imprisonment in the ward of F. in London, the defendant justified under a judgment and writ of execution in Sandwich in Kent, and the taking and imprisoning there, and traversed his being guilty in London; the plaintiff replied that the defendant was guilty in London, and traversed that there is any such record in Sandwich. Moor, 350. Paramour v. Verwold. S. C. Pop. 101. S. C. Cro. Eliz. 418. S. P. 2 Lutw. 1438. But the law has been altered in these respects by the statutes 16 & 17 Car. 2. c. 8. and 4 Ann. c. 16. s. 6.; by the former of which it is enacted, that after verdict no judgment shall be arrested or reversed, for that there is no right venue, so as the cause of action were tried by a jury of the proper county or place where the action was laid; and the latter statute directs that the venire facias shall be awarded out of the body of the county where such issue is triable. It was adjudged in the above-mentioned case of Craft v. Boite, and which has been adhered to ever since, that where an issue, joined on a local justification in the county of Oxford, was tried by a jury of London, where the action was laid, this mis-trial was aided by the said statute of Charles the 2d. The statute of Ann having thus abolished all distinction of venues, and extinguished the doctrine of mis-trials in the same county, and the statute of Charles the 2d. having also remedied after verdict an erroneous award of the venire facias into another county, it follows, that the defendant cannot compel the plaintiff to try the cause in the county where the matter of the justification arose. Hence it hath been the constant practice for a great length of time past to try the cause in the county where the venue is laid in the declaration. The grounds and reasons of the different manner of pleading, when the justification is transitory and when local, which were founded upon a solid and substantial point of law, being put an end to by these statutes, it is now reduced to mere form; and the court, as in other cases of form, will not lend a willing ear to captious objections to the plea, but will perhaps think that the averment of its being the same trespass, which includes in itself a traverse of the place in the declaration, is sufficient at this day without the addition of a formal traverse of it. However it is proper and safe to adhere to the usual form, for probably the court will feel themselves bound by the course of precedents, as their predecessors did in a former case; where, in trespass, which was laid at Hereford, in the county of Hereford, for taking the plaintiff's cattle and driving them away, and converting them to his use, the defendant pleaded not guilty as to the conversion, and as to the taking and driving them away |