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1812.

BORASTON

against GREEN.

claim of right to reap the crop, and he continues in fact in possession of the land on which the crop grows for that purpose. It is said, however, that he is not the legal tenant of the land at the time of the off-going crop taken : but that is begging the question; for it is considered that the right reserved to the tenant to take the crop is a prolongation of the term as to the land on which it grows, and that the possession of the land continues in the tenant till the crop is taken. It has been held that the landlord may distrain upon the off-going crop for the old rent. On what ground could that have been so held but that the tenancy still continued as to that part of the land ? At common law the landlord could only distrain during the term; then the statute (a) extended that remedy to six months afterwards : but in Bevan v. Delahay, 1 H. Blac. 5. the Court of C. B. held that the landlord was entitled to distrain on the off-going. crop, though more than six months had elapsed after the end of the term. Therefore as to that part of the land on which the crop was growing, I consider that the possession of the off-going tenant continued. Then it would be unheard-of to be trying in an action of trover for the produce, whether the land had been properly summer fallowed or manured by the tenant. If it has not, the landlord will have his remedy against the tenant upon his covenant or agreement for the abuse of the land; but the landlord is the proper party to have that remedy, and not the in-coming tenant.

Rule absolute for a nonsuit

to be entered.

(a) 8 Ann. c. 14.

VOL. XVI.

OAKLEY

1812.

Friday, June 5th.

OAKLEY against Davis, one, &c.

In trespass for an assault and THE plaintiff declared in trespass, and charged the defalse imprison fendant in the four first counts respectively for ment, the defendant having taking and detaining his goods on different days, and afassault and im- terwards converting them to the defendant's use; and prisonment under a writ

also for breaking and entering the plaintiff's dwellingsued out by him as attor

house at Abergavenny, &c. and making and continuing a ney for J. M. great disturbance and affray therein for a long time, viz.

the de. fendant, in for 32 days : upon which counts no question arose. The dorsed for bail for 1001, which 5th count was for assaulting the plaintiff on the 28th of was delivered

December 1810, and imprisoning him and detaining him to the sheriff, who, by virtue in prison without any reasonable or probable cause for thereof, arrested and de. 10 months from that day. The defendant pleaded not tained the plaintiff'; if the guilty to all the counts; and 2dly, as to the assault and plaintiff (in

imprisonment, &c. of the plaintiff, he pleaded that before stead of traversing the and at the time when, &c. he was and from thenceforth plea, as he ought to do, if hath been, and still is an attorney of the Court of K. B., the arrest were and that on the said 28th of November 1810, as the attorirregularly made by the sheriff's officer,

ney of one J. Morgan, and by virtue of a certain retainer without a suffi. in that behalf, he caused to be issued out of the court a cient warrant from the she

writ of latitat directed to the then sheriff of Monmouthriff, new-assign shire, by which he was commanded to arrest the plainpass complain- tiff, &c. to answer the said J. Morgan in a plea, &c.; another and dif- which writ was indorsed for bail for 1001., &c.; and than that stated that the defendant, as such attorney as aforesaid, afterin the plea, and wards, and before the return of the writ, to wit, on the sed arrestthere- 1st of December 1810, delivered it to the then sheriff of in mentioned; M. to be executed in due form of law; by virtue of on proof of the which writ the said sheriff afterwards, and before the stated, is en

return thereof, namely, on the day and year in the last titled to a verdict.

count

ed of was upon

1812.

OAKLEY against DAVIS.

count mentioned, being the said time when, &c. within his bailiwick, took and arrested the plaintiff, and detained him in his custody under and by virtue of the said writ and for the cause therein specified, for the time mentioned in the last count; which are the same supposed trespasses, &c. To this the plaintiff replied by a new assignment, that he brought his action against the defendant, for that the defendant, at the said time when, &c. in the fifth count mentioned, on another and different occasion than as in the said plea is mentioned, and after the supposed arrest in that plea mentioned, and without any legal or sufficient warrant or authority for so doing, assaulted, beat and ill-treated the plaintiff, and imprisoned him, and detained him in prison as in the fifth count mentioned; which said tresspass, assault, and imprisonment above newly assigned is another and different trespass, assault, and imprisonment than that mentioned in the second plea, and thereby attempted to be justified, &c. To this new assignment the defendant pleaded not guilty.

The cause was tried before Mr. Serjt. Marshall, who sat for Mr. Justice Lawrence, at Monmouth, in the last spring, when it appeared by the evidence on this part of the case that on the 28th of December 1810 the plaintiff was arrested at Monmouth by a sheriff's officer in the presence of the defendant, who delivered the warrant, dated the 12th of December, to the officer for that purpose, and directed him to take charge of the plaintiff. That the defendant after the arrest offered to liberate the plaintiff if he would give him authority to sell off some of his effects at Abergavenny, where it appeared the plaintiff had before lived; which the plaintiff refusing, the defendant directed the officer to take him to gaol; which was done. But it also appeared that the defendant, who was

attorney,

an

G 2

1812.

OAKLEY against DAVIS.

attorney, had required the property to be given up to him in liquidation of the debt of one John Morgan, who proved that he had in the November before given the defendant directions to do what he could to recover his money. It further appeared that when the sheriff's warrant for the arrest of the plaintiff was made out and delivered to the defendant, it was issued without the name of any of the three special bailiffs in it, which appeared on its production at the trial; but a blank was left for them, and only the defendant's name as attorney in the cause was put in a corner of the warrant. The taking of the plaintiff's goods upon the other counts on prior days was proved to the amount of 101. : for which no autho rity was shewn. But upon the new assignment in replication to the 5th count, it was objected for the defendant, that the plaintiff was not entitled to recover, without giving evidence of two arrests and imprisonments, that is, of a different imprisonment for a different cause than that stated and justified in the defendant's plea to that count; whereas the evidence shewed it to be the same; though the arrest was illegal, by reason of the warrant, which had been delivered in blank out of the sheriff's office, having been afterwards filled up with the names of the persons, one of whom made the arrest. It was thereupon agreed that the jury should assess the damages separately for taking the goods, and for the imprisonment of the plaintiff; and that the defendant should have leave to move the Court to set aside the verdict for the damages on account of the imprisonment. The jury found for the plaintiff 1001. damages for the imprisonment, and the like sum for seizing his goods.

In the last term a rule nisi was obtained for reducing the verdict to 1001., i. e. for the tresspass in taking the

goods,

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1812.

goods, and to shew cause why the verdict for the damages upon the plea of not guilty to the new assignment should not be set aside, and a verdict entered for the defendant upon that issue.

OAKLEY against DAVIS.

Jervis and Puller now opposed the rule; and after referring to Scott v. Dixon (a), and Cheeseley v. Barnes (6), as giving the rule where it is proper to reply, and where to new-assign, contended that the plaintiff could not properly have traversed the plea in his replication in this case, but was driven to new-assign. The substance of the second plea is that what the defendant did was merely in his character of attorney, making use of the process of the law to enforce his client's demand: and so far as he acted in that character, the plaintiff, not intending to proceed against him, but only for that which he did in his own personal character; without any such authority, was obliged to new-assign to the plea of an arrest under process, by discriminating and shewing that the trespass which he complained of was upon another and different occasion than that which was justified by the plea, namely, after the arrest in the plea mentioned, and without any legal or sufficient authority. [Bayley, J. There was no arrest by the sheriff; and therefore the plaintiff might have traversed that allegation in the plea.] In that case the plaintiff could not have new-assigned upon the illegal and oppressive conduct of the defendant in his personal character, which was the gist of the complaint.

The new assignment is in the nature of a replication, not admitting that any one trespass meant to be complained of was justified; but in substance stating, that however

(a) 2 Wils, 3.

(6) 10 East, 80.

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