The defendant demurred, and assigned for causes, that the plaintiff had not in and by his sur-rejoinder confessed and avoided, traversed, or denied the several facts and matters pleaded by the defendant in his rejoinder, or any of those facts and matters; and for that the said Robert ought either to have denied some fact alleged therein, or admitting the said to be true, to have shewn by his sur-rejoinder how and in what manner be the plaintiff was discharged therefrom, and how the same were avoided. And that the plaintiff had by his surrejoinder endeavoured to put in issue matters different and immaterial to those offered and alleged by the defendant in his rejoinder; and that the plaintiff's sur-rejoinder did not shew what estate, right, or title, the plaintiff or any other person had, to separate, divide, and inclose any part of the close in which, &c. from the said waste; or by what means, or how the same was approved, separated, and inclosed, and also that the sur-rejoinder did not take any issues whatever upon any of the matters pleaded in the rejoinder, nor bring to issue the same, or any matters whatever stated in the pleadings of this cause: and also that the plaintiff's sur-rejoinder was calculated to introduce unnecessary entries, pleadings, and proceedings on the record; and also that the sur-rejoinder concluded to the country, whereas the same ought to have concluded with averments as to the matters therein contained, and verifications thereof. Shepherd Serjt. in support of the demurrer. It was the intention of the parties to raise by these pleadings the necessary question to try this right of common, and the fact is, that the whole of Far End Close formerly was parcel of the waste of the manor, and part of it has been inclosed above 20 years: and part has been inclosed for a shorter period than 20 years. It is intended by the rejoinder to put in issue the fact that the part of the close on which the trespass was committed, has been taken in within 20 years. If the plaintiff meant to deny it, he ought to have pleaded, that the locus in quo was not part of the waste. The Court observed, that the defendant had omitted a fair opportunity which the plaintiff gave him, to traverse an allega tion, which the plaintiff could not have supported, but by proving that the whole of Far End Close had been inclosed above 20 years; for if the defendant had taken issue on the replication, as it stood, and if any part of Far End Close had been $1809. HAWKE v. BACON. [160] been inclosed less than 20 years, the issue must have been found for the defendant: it did not differ from the common case of pleading liberum tenementum, where, if the defendant proves he has a single acre in the vill, the issue is with him, whatever quantity of land the plaintiff may have there: and if the plaintiff had meant to dispute the particular spot, he should have newly assigned. But here the rejoinder is bad, for it admits the replication, and traverses nothing: it does not deny that the site of the trespass is Far End Close. The plaintiff could not have pleaded that the locus in quo was not part of the waste, for it continued to all intents part of the waste for 20 years, and even after that time it continued part of the waste, so that the lord might have recovered it in a real action within 60 years. The parties had leave given them to amend. As to the main question which the parties meant to try, Lawrence J. observed, that the counsel were properly agreed upon the point, that if the common had been inclosed 20 years, the commoners' right of entry was gone; and he mentioned the following case of Creach v. Wilmot: CREACH . WILMOT. DERBY Summer Assizes, 1752. Trespass for breaking closes, &c. Justification by a commoner, as being part of a common, &c. Evidence, that some of the closes had been inclosed above 40 years, and that the plaintiff had a little house built on one of them, and it was insisted by the plaintiff that this no longer remained a part of the common, that the possession had fixed the freehold in the cottager, and that the commoners were bound by the statute of limitations. Answered, that a right of common cannot be barred by the statute of limitations: that the question was on the mere right, and therefore though the statute of limitations would have been a bar in ejectment or formedon, where the land was in question, yet in this action, where the right only is in question, the statute is no bar. LEE C. J. A possession of above 40 years has been proved, and there is no difference between the lord of a manor and a commoner. The lord could not have brought an ejectment after 20 years' possession. Here, the commoner, if he had any right, should have brought an assize of com. mon, and not made an entry. The jury were directed to find for the plaintiff. BOYD and Another v. DURAND. 1809. Nov. 17. SHEPHE tions called a to the filazer, in the cause; and it is not nethey should cessary that contain a clause of ac etiam. HEPHERD Serjt. obtained a rule nisi that the defend- The instruc ant, on filing common bail, might be discharged out of the præcipe, given custody of the sheriff of Surry, for three objections; first, that by the attorney only one affidavit had been made for holding him to bail, and are not process that had been filed with the filazer of Middlesex, and that a capias having issued into Middlesex, and the defendant not be ing there found, the plaintiff had not sued out a testalum capias, but another original capias directed to the sheriff of Surry, but notwithstanding, had not filed with the filazer of that county make a waran office copy of the affidavit to hold to bail, which, Shepherd jointly and not said, the practice in such case required, pursuant to the statute severally, and 12 G. 1. c. 29. s. 2. Secondly, the memorandum called a præ- arrest, the cipe, given to the officer as instructions to prepare the capias, interfere to dis fendant on motion. If the sheriff rant to four, one make the court will not and which was in the following terms, "Surry. Capias for charge the de E. Boyd against J. Durand, returnable on the morrow of All Souls. Oath for 89001. and upwards," contained no clause of ac etiam. Thirdly, that the sheriff of Surry had made his warrant "to the keeper of the gaol of the said county, and also to W. Benton, R. Faulkner, and R. Hindson, his bailiffs," commanding them and every of them jointly and not severally, that they should take the defendant, &c. to answer the plaintiffs in a plea of trespass, and also in a plea of debt for 1600%.; but that the arrest was made by Faulkner and another not named in the warrant, and without any assistance of the gaoler, Benton and Hindson. *Lens and Best Serjts. on behalf of the plaintiffs, shewed cause against this rule. As to the first objection, the same person executed the office of deputy filazer for Middlesex and for Surry; he had been instructed to file in Surry an office copy of the affidavit to hold to bail, and had been paid for it, but through urgent pressure of business he had not been yet able to have it copied and filed: but if there were any laches in the officer of the court, that ought not to prejudice an innocent plaintiff, who had done all that the practice required. It was no where enacted that an office copy of the affidavit should be 1 filed, A warrant to four jointly and not severally, clearly will not authorize an arrest by one. proceeds by a second original capias, instead of testatum affidavit to hold to bail is not Whether in If a plaintiff capias, a second necessary. such case it is necessary to file an office copy of the affidavit with the filazer county, Quare? of the second At least the not so far viti omission does arrest. *[ 162 ) 1809. BOYD and Another D. filed, it was only required that there should be an affidavit, without reference to any particular county, and there is one. To the second objection, this instrument called a præcipe, is only an authority given by the attorney in the cause to the DURAND. filazer, from which he is to prepare the original writ: it is neither "writ, bill, nor process issuing out of this court," in which instruments only does the stat. 18 Car. 2. st. 2. c. 2. require that "the certainty and true cause of action shall be particularly expressed." [ 163 ] To the third objection. There is a diversity between autho rities created by the party for private causes, and authority created by law for execution of justice. Co. Litt. 181. b. Rex v. Fowler, 1 Salk. 350. S. C. 1 Ld. Ray. 586. It was held, that though the warrant may be wrong, yet if the writ be right, the party is rightfully in the custody of the sheriff. Lambard. Eirenarcha, c. 2. p. 89. If such a precept be addressed to twain, yet one alone may serve it. And here the bailiff is no stranger to the warrant, though certainly he ought to have attended to the restriction the sheriff imposed on the execution of it. Vaughan Serjt., for the sheriff, was permitted to come in and shew cause on the following day. He prayed that the court would leave the defendant to pursue his ordinary remedy by action, against either the sheriff or his bailiff. Warrants in furtherance of justice are to be favourably expounded, and a joint warrant has often been expounded as a joint and several warrant: Lashbrook's case. Hutt. 127. Rex v. Hobbs, Yelv. 25. And a strong reason is there given: the sheriff's intent is to have the party arrested, and whether by one or more, ipsi non refert. White v. Whilshire, Palm. 52. But whether rightly arrested or not, since he is in the custody of the sheriff, he is where he ought to be, and the sheriff has a right to hold him, having a writ by which he may legally be held, and this is very different from the cases where the plaintiff has been colluding, or has taken the defendant by violence, as in Birch v. Prodger, 1 New Rep. 135. And it is enough for the sheriff, if he can lay before the Court a reasonable doubt whether the de fendant is entitled to his discharge. So held, Lee v. Gansel, 1 Cowp. 9. And here is no fault in the sheriff: he makes out a good warrant, but the bailiff mistakes it. In Housin v. Barrow, 6 T. R. 122. the warrant was bad. Shepherd and Manley Serjts. in support of the rule. 2 1809. BOYD บ. DURAND. 1. It is not sufficient to make the affidavit to hold to bail, it must also be filed. Reeks v. Groneman, 2 Wils. 226. and Hussy v. Baskerville, there cited. Though the business of the and Another two counties is conducted in the same chambers, that can make no difference: they are totally distinct offices, and the filazer of Surry cannot legally know what affidavits are filed with the sheriff of Middlesex. If a testatum capias had issued, that would guide the enquirer to the original capias, by which he might find the affidavit; but this is a second original capias, and if there is neither a second affidavit made, nor an office copy of the first filed in the second county, the defendant has not that [164] opportunity which the statute meant to give him, of ascertaining the nature and extent of the cause of action. By the copy not being filed the crown also is defrauded of a stamp duty. The clear known distinction is, that if a second original capias issues, there must be a new affidavit of debt filed in the second county; where a testatum capias issues, that is unnecessary. 2. As to the præcipe, it was held in Barnes 117. Hay v. Mann, that the want of the ac etiam clause in the præcipe was fatal. [Mansfield C. J. A præcipe is a nonsensical word as applied here. A præcipe is the name of a writ, but this is a little worthless memorandum, which is no authority at all. The real præcipe is the first authority.] 3. In Birch v. Prodgers, the attorney Plaisted having been forcibly detained till the sheriffs' officer, with a proper authority, came to take him, the court nevertheless ordered his discharge. This shews that the authority of the sheriff to detain the defendant is not the criterion. Housin v. Barrow. The sheriff had a good writ, and had made a good warrant, but the bailiff himself having inserted another name, the court discharged the defendant. All this was for good reason. If the arrest is made by an authorized officer, the sheriff is responsible for his acts, but he is not answerable for the acts of unauthorized persons. If Faulkner had been guilty of the greatest abuses in this arrest the sheriff would not be responsible, for he never trusted him alone, but expressly required that Benton and Hindson should assist, to prevent any misconduct of Faulk. ner. This is very different from the case of a mere joint warrant, for the sheriff absolutely prohibits the execution to be by any other than all the four. If the court will permit the sheriff to detain a man who is improperly arrested, it will lead to great abuses; men will be entrapped, or arrested on a Sunday, and |