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. 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 (c), and afford just cause for special demurrer.

Formerly, in trespass quare clausum fregit, the plaintiff might have declared generally without naming the close (d); 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 (e). A description of a close by two abuttals only is a sufficient compliance with this rule (ƒ).

The close (g) in which, &c. does not mean the whole close referred to in the declaration, but that part of the close 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 (h), that the plaintiff was not 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 (i), and an omission in this respect will not be aided even by verdict (k). 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

(c) See English v. Purser, 6 East, 395. (d) 2 Bl. 1089.

(e) Per Lord Denman, C. J., delivering judgment of the court in Webber v. Richards, 1 G. & D. 114; 1 Q. B. 439.

(f) North v. Ingamells, 9 M. & W. 249.

(g) Richards v. Peake, 2 B. & C. 918, recognized in Bassett v. Mitchell, 2 B. &

Ad. 99; and in Smith v. Royston, 8 M. &
W. 381, post, p. 1338.

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

(i) 5 Rep. 34, b.

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

by pleading over (1). 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 (m); on general demurrer, the declaration was holden to be bad, because a person cannot have property in deer unless they are tame and reclaimed (3). The value of fixtures may be recovered under the terms, "goods, chattels, and effects," in a declaration in trespass (n). As to the necessity of alleging the trespass vi et armis and contra pacem, see ante, p. 29, 30.

IV. Of the Pleadings; and herein of the New Rules, p. 1334: 1. Of the Plea of Not Guilty, p. 1334.

2. Accord and Satisfaction, p. 1336.
3. Liberum Tenementum, p. 1337.

4. Estoppel, p. 1339.

THE general issue in this action is, not guilty. Under stat. 3 & 4 Will. IV. c. 42, s. 1 (o), (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 over

(See an instance of this kind in Brooke v. Brooke, 1 Sidf. 184. (m) Mallocke v. Eastly, 3 Lev. 227.

(n) Pitt v. Shew, 4 B. & A. 206. See Dalton v. Whittem, 3 Q. B. 961. (0) See ante, p. 156.

(3) 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.

seer, distrained the goods for a poor's rate due from B., and that the goods were the goods of B., and not of A. (p). 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 (g); and the plea of not guilty so pleaded, is not appended to the new rules of H. T. 4 Will. IV., but has the same operation as it had before they were made; putting in issue not only the defences peculiar to the statute, but all that would have arisen at common law (r). 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 (4). 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 (s), that evidence of possession was sufficient to entitle the plaintiff to a verdict on the second plea. By

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

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

(r) Ross v. Clifton, 11 A. & E. 63; and 1 G. & D. 72, ante, p. 930.

*

(8) Heath v. Milward, 2 Bingh. N. C. 98, recognized by Patteson, J., in Carnaby v. Welby, 8 A. & E. 878; and in Browne v. Dawson, 12 A. & E. 624; 4 P. & D. 355.

(4) In trespass for seising and taking certain goods, &c., of the plaintiff, a plea, denying that the goods are the plaintiff's, was holden by the Court of Exchequer to put in issue the property in as well as the possession of the goods; Parke, B., observing, "the doctrine of the Court of Q. B., in the case of Whittington v. Boxall,† is applicable to land and not to goods. How can a defendant dispute the plaintiff's title to goods except by denying his possession? There is no plea of liberum tenementum in such a case. This court and the court of Q. B. have certainly come to a different decision on the same point; the court of Q. B. having held,† that there ought to be a special plea in order to dispute the plaintiff's title, as distinguished from his mere possession: we have thought differently.‡ Before the new rules, the general issue, not guilty, put in issue the plaintiff's title, because under that plea the defendant might dispute both the fact of the trespass and also the fact that it was committed in the plaintiff's close. Now, the plea denying the close to be the plaintiff's is a denial of his title to the same extent as he would have been obliged to prove it under the general issue."

*Harrison v. Dixon, 12 M. & W. 142.

t Whittington v. Boxall, 12 Law J. (N. S.) Q. B. 318.
Purnell v. Young, 3 M. & W. 288.

stat. 11 Geo. II. c. 19, s. 21, "In actions of trespass brought against any person entitled to rents or services of any kind, their bailiff or receiver, or other person, relating to an entry by virtue of this act, or otherwise, upon the premises, chargeable with such rents or services, or to any distress, or seizure, sale, or disposal of any goods or chattels thereupon, the defendants may plead the general issue, and give the special matter in evidence." In a case where rent being in arrear (r), the tenant had removed his goods clandestinely from the demised premises, but the landlord had seized them as a distress within thirty days, as allowed by the preceding stat. 11 Geo. II. c. 19, s. 21; it was holden, that to an action of trespass brought by the tenant against the landlord for such seizure, the defendant could not give the special matter in evidence upon the general issue by virtue of the preceding clause (sect. 21); for that clause is confined to those cases where the distress is made upon the premises demised. In this case, the defence must be pleaded specially (s).

Where a person is arbitrarily made defendant to exclude his testimony, he may, if nothing is proved against him, be acquitted, and sworn as a witness for the other defendants (t). But if there be the slightest evidence against one of the defendants, he cannot be acquitted so as to make him a witness (u). With regard to defendants, against whom there is not any evidence, the rule is, that the verdict in their favour is to be taken at the end of the plaintiff's case (x); but where defendants against whom the counsel abandons the case have pleaded special pleas of justification, they have an interest in the record, by reason of their liability to the costs of those pleas, and ought not to be acquitted till the special pleas in which they have joined are disposed of (y).

2. Accord and Satisfaction.

66

Accord and satisfaction, being a good plea in all actions where damages only are to be recovered, is consequently a good plea in trespass (2); but a plea of accord, without satisfaction cannot be supported. Hence, in trespass for taking cattle, it cannot be pleaded, that it was agreed that plaintiff should have his cattle again" (a); for this is no satisfaction for the injury done. So where to trespass for breaking and entering the plaintiff's close, the defendant pleaded "that in Easter Term (b), in the thirty-first year of the present reign, the plaintiff declared against the defendant in this cause for the several trespasses above supposed by the defendant

to have been done; and that afterwards, and before plea pleaded in this cause, to wit, on such a day, it was agreed between the plaintiff and defendant, in respect to an action then lately commenced between them, which was that day settled, as follows: that the defendant was to pay 17. 1s. on account of the matter in dispute, and the plaintiff was to pay the law charges; and further, that whatsoever disputes then were, or had been, or might be in being, touching suits or actions, to the day of the date of the said agreement, should cease and terminate for ever; and they further agreed to bind themselves in the sum of 1007., whoever should commence an action or suit, in respect to anything in being to the then present day." It was then averred, that the present action, and the action in the agreement mentioned, were the same. On demurrer to this plea; it was contended, in support of the plea, on the authority of an admission in Reniger v. Fogassa (c), that the agreement which is an effectual plea in bar, is either such an agreement, as is executed and satisfied with a recompense in fact, or with an action or other remedy to execute it and to recover a recompense; that here the parties agreed to bind themselves in the penalty of 100l. to abide by their accord; that, therefore, was a new remedy, which fell directly within the authority cited. But the court were of opinion that the plea was bad; Ashhurst, J., observing, that, "supposing the proposition were true, that whenever the agreement is such, for the breach of which an action might be maintained, [it may be pleaded in bar,] yet it is incumbent on the party pleading it, to show that an action could have been supported on it. In order to found an action on this agreement, the plaintiff must have stated not only the agreement, but also that he tendered an obligation in 100l., ready executed to the defendant, and that the defendant refused to execute, &c. ; but no action could have been sustained on this contract, without that previous step, which is not pleaded here."

3. Liberum Tenementum.

In trespass to real property, the defendant may plead that the close in which, &c. is the freehold (liberum tenementum) or customary tenement of the defendant, or of a third person under whom he acted.

By this plea the defendant admits that the plaintiff is in possession, and that he himself is primâ facie a wrong-doer; but he undertakes to show a title in himself, which shall do away with the presumption arising from the plaintiff's possession. This he is bound to do, either by showing title by deed, in the usual way, or by proving a possessory title for twenty years. Hence, this plea is not supported by proof of the exercise of acts of ownership by defendant for a period of less than twenty years, where it appears that before the

(c) Plowd. 5, 11, b.