iffue be joined thereon, the plaintiff cannot prove the defendant guilty at the place mentioned in the bar: for when the plaintiff makes a new affignment he waives that whereto the defendant pleaded in bar; fo as in truth if it be the fame place, he can never take advantage thereof, and therefore if it be the fame, yet the defendant ought not to rejoin that it is fo, but plead not guilty, and take advantage of it at the trial.

If the plaintiff make a new affignment and the general Ibid. iffue be joined thereon, the plaintiff cannot prove the defendant guilty at the place mentioned in the bar; for when the plaintiff makes a new affignment, he waives that whereto the defendant pleaded in bar; fo as in truth if it be the fame place, he can never take advantage thereof, and therefore if it be the fame, yet the defendant ought not to rejoin that it is fo, but plead not guilty, and take advantage of it at the trial.

A man is not obliged to justify a diftrefs for the cause 7 T. R. 657. which he happens to affign at the time it was made. If he can fhew that he had a legal juftification for what he did that is fufficient. A man may diftrain for one thing and avow for another: thus, he may diftrain for rent and avow for heriot service.

On a justification for taking cattle damage feafant, if it 1 Efp. N.P. 95. appear that the party diftraining had not actually got into

the locus in quo before the cattle had got out of it, the juf

tification cannot be fupported.

In trefpafs for taking and driving plaintiff's cattle, to 1 Efp. R. 212. which there was a juftification, that defendant was lawfully poffeffed of a certain clofe, and that he took the cattle damage feafant, plaintiff may fpecially reply title in another by whofe command he entered, &c. and it does not vitiate to replication that it is unnecessarily proved, and farther to give colour to the defendant.

For as trespass is a poffeffory action, it is enough for the Bull. N. P 93. plaintiff in his replication to traverse the title fet out by the defendant, without fetting up a title in himself; for the poffeffion admitted in the plea in giving colour is fufficient unless the defendant can make out a title in himself.-But if in trefpafs for taking a gelding, (or other chattel,) the defendant

Kk3

Ibid. 94

Ibid. 85.

Ibid. 86.

Ibid. 84.

fendant pleads that the place where is one hundred acres, and that 7. S. is feised thereof in fee, and that he as his fervant and by his exprefs orders took the gelding (or other chattel) damage feasant; the plaintiff cannot reply de injuria fua propria abfq. tali caufa, for that would put in issue three or four things; but he must traverse one thing in particular.

If the defendant plead that it is his freehold, the plaintiff may reply three ways: 1. that it is his freehold, and then he must always traverse the defendant's plea, except in one cafe, and that is where he makes a new affignment. 2. Or he may derive a title under the defendant, and then he must not deny its being the defendant's freehold. He may fet up a title not inconfiftent with the defendant's, and then he may either traverse the defendant's title, or not, as he pleases.

It is not neceffary to have an intereft in the foil, to main. tain trespass quare claufum fregit, but an intereft in the profits is fufficient, as he who has prima toufura. So, if J.S. agree with the owner of the foil to plough and fow the ground, and for that to give him half the crop, J. S. may have his action for treading down the corn, as the owner is not jointly concerned in the growing corn, but is to have half after it is reaped by way of rent, which may be of other things than money: though in Co. Lit. 142, it is faid it cannot be of the profits themfelves; but that (as it seems) muft be underflood of the natural profits.

The plaintiff may prove trefpafs at any time before the action brought, though it be before or after the day laid in the declaration. But in trefpafs with a continuando, the plaintiff ought to confine himself to the time in the declaration; yet he may waive the continuando, and prove a trespafs on any day before the action brought, or he may give in evidence only part of the time in the continuando.

The plaintiff can only prove the taking fuch goods as are mentioned in the declaration; becaufe a recovery in the action could not be pleaded in bar to any other action brought for taking other goods than thofe fpecified in the declaration. Therefore, where the declaration was for en

tering the plaintiff's houfe, and taking diverfa bona et catalla ipfius querentis ibidem inventa, after verdict for the plaintiff the judgment was arrested.

By flat. 21 7. 1. c. 16. the defendant may to trespass quare claufum fregit, plead a disclaimer, and that the trefpass was by negligence or involuntary, and tender of fufficient amends before the action brought; whereupon, or upon fome of them the plaintiff fhall be enforced to join iffue and if the faid iffue be found for the defendant, or the plaintiff fhall be nonfuited, the plaintiff fhall be clearly barred from the faid action, and all other fuits concerning the fame.

Though the verdict do not agree with the plea in the Bull. N. P. 56. manner and nature of the tenure, yet if he agrees in fubstance in the point for which the distress was made, that is fufficient, for there is a difference between trefpass and replevin, for in replevin it behoves the avowant to make a good title in omnibus.

Thus in trefpafs for breaking and entering the plaintiff's Ibid. 55. house and taking his goods, the defendant pleaded, that the house is parcel of a half yard holden of A. by homage, fealty, efcuage, uncertain fuit of Court, enclosing his park with pales, and rent of a pound of comyn, and for three year's arrear, and for homage and fealty of the tenant, he by A's. command entered and took, &c. the defendant traverfed the tenure modo et formá. Special verdict that he held of A. by homage, fealty, enclosing his park; rent of a pound of comyn, et non aliter, and judgment for the defendant.

In trefpafs for taking the plaintiff's cattle, juftification to Mod. 37. that they were damage feafant in the defendant's clofe is fufficient, without fetting forth a title.

1372. s. c.

If trespass for taking and felling the plaintiff's goods be 8 Mod. 217: brought against two perfons, and the one suffers judgment 2 Ld. Raym. to go by default, and the other juftifies the taking on a dif- 1 Str. 610. s. c. trefs for rent, by command of his co-defendant, and the felling by the licence of the plaintiff, and issue be taken on the licence and found for the defendant, the judgment fuffered by default shall be arrested: for the cafe of a licence

7 T. R. 660.

Tidd's. Pract.

653

Ibid.

Trover.

6 T. R. 298.

cannot be diftinguished from a gift of goods, or a release, which deftroys the cause of action as to all the defendants.

Where an action de bonis afportatis has been brought full costs have always been allowed to the plaintiff notwithstanding he may have received less than 40s. not because the ftatute [22 & 23 C. 2. c. 9.] has faid that he shall have full cofts, but because the cafe is not within the A&t. The rule both in C. P. and K. B. is that where there is a special plea of juftification found against the defendant, the plaintiff is entitled to his full cofts. The principle upon which fuch determinations are founded is, that where the case is such that the Judge who tries it cannot in any view of it grant a certificate within the A&t, it is considered to be a cause out of the ftatute.

But where the plea or issue, though special, is collateral to the question of freehold or title to the land, as where the defendant juftifies an entry as bailiff under procefs, and issue is joined upon the door's being shut, or where upon a plea of a diftrefs for rent, there is an iue on the defendant's being bailiff, a certificate is necessary, to entitle the plaintiff to full cofts: and it is alfo neceffary where the plaintiff recovers less than 40s. damages, on a replication of extra viam, or plea of non-guilty to a new affignment: but where the plaintiff is entitled to cofts upon a new affignment, he is entitled to the costs of all the previous pleadings.

None of the ftatutes, made for reftraining the plaintiff's right to costs, extend to actions brought in an inferior Court, and removed by the defendant into a fuperior one: and it has been holden, that the 21 7. 1. c. 16. and the 22 & 23 C. 2. c. 9. only reftrain the Court from awarding more cofts than damages; but the jury, not being restrained thereby, may give what costs they please.

Trover alfo lies for a diftrefs illegally taken; as where a right to distrain exifts, but the diftrainer (where the distress is for rent) take fuch goods as are not lawfully the subjects of a diftrefs; as wearing apparel in use, &c.

So, if a party pay money in order to redeem his goods from a wrongful diftrefs for rent (or any other fuppofed

ground

ground of diftrefs, it is prefumed,) he may maintain trover

against the wrong-doer.

For trover is a special action on the cafe, which one man Bull, N. P. 32. may have against another, who hath in his poffeffion any of

his goods by delivery, finding, or otherwife, or fells or makes use of them without his confent, or refuses to deliver them on demand; and it is for recovery of damages to the value of the goods; and therefore a declaration ought to contain convenient certainty in the description of the things, fo that the jury may know what is meant thereby.

The converfion is the gift of the action, and the manner Ibid. 33. in which the goods came to the hands of the defendant is only inducement; and therefore the plaintiff may declare upon a devenerunt ad manus generally, or specially per inventionem, (though the defendant came to the goods by delivery,) for being but inducement, fuch need not be proved; but it is fufficient to prove property in himself, poffeffion to have been in the defendant, and a conversion by him. So, the declaration was holden to be good, though the converfion was laid to be on a day before the trover, for the poftea convertit is fufficient, and the viz. void.

The distinction between the actions of trespass and trover 4 T. R. 489. is well fettled; the former is founded on poffeffion, the Bull. N. P. 33latter on property: a fpecial property is fufficient in order

to enable the party to bring trover; and even property is

fufficient without poffeffion.

Trover being founded on a tort, "not guilty" is the Ibid. 48. general iffue. A release also may be pleaded specially, and it feems is the only fpecial plea in this action. But as the defendant cannot plead the fpecial matter, he may give it in evidence on the general iffue.

Where the goods are cumbrous, inftead of allowing them Ibid. 49. to be brought into Court, the Court will grant a rule to fhew cause why, on the delivery of the goods to the plaintiff and paying cofts, proceedings fhould not be ftaid.

Tre/pafs, or Cafe, for an irregular Diftrefs.

Trefpafs will also lie for any irregularity in making the diftrefs, or in the fubfequent difpofition of it, or conduct refpecting it.

Therefore,