the action, and therefore the plaintiff may prove it at a different place from that laid in the declaration (a). Indeed it should seem that antiently, upon a writ of quare clausum fregit, the plaintiff might, and may still, declare either generally, for breaking his close at A. or might name the close in his count, as for breaking and entering his close called Blackacre in A. or might otherwise certainly describe the same. If he declared generally, and the defendant pleaded the general issue, the plaintiff might give evidence of a trespass in any part of the township of A. So that, for the advantage of the defendant, and to enforce the plaintiff to ascertain the place exactly, a method was devised of permitting the defendant to plead what is called "the common bar," that is, to name any place, as Broomfield (true or false was immaterial) in A. as the place where the supposed trespass happened, and then allege that such place so named was the defendant's own freehold and as the plaintiff could not prove a trespass in Broomfield, this drove him to a new assignment of the locus in quo, by naming the place in certain, as a close called Blackacre, to which the defendant was now to plead afresh (b). In trespass, the defendant justified in a place called A. as his freehold; the plaintiff, by way of new assignment, said that the place in which, &c. is called B. It is no plea to say that A. and B. are the same place, for by the new assignment the bar is at an end (a). If the plaintiff make a new assignment, and the general issue be joined thereon, the plaintiff cannot prove the defendant guilty at the place mentioned in the bar: for when the plaintiff makes a new assignment he waives that whereto the defendant pleaded in bar; so as in truth if it be the same place, he can never take advantage thereof, and therefore if it be the same, yet the defendant ought not to rejoin that it is so, but plead not guilty and take advantage of it at the trial (a). A man is not obliged to justify a distress for the cause which he happens to assign at the time it was made. If he can shew that he had a legal justification for what he did that is sufficient. A man may distrain for one thing and avow for another: thus, he may distrain for rent and avow for heriot service (c). On a justification for taking cattle damage-feasant, if it appear that the party distraining had not actually got into the locus in quo before the cattle had got out of it, the justification cannot be supported (d). In trespass for taking and driving plaintiff's cattle, to which there was a justification, that defendant was lawfully possessed of a certain (4) Bull. N. P. 92. (6) Martin v. Kesterton. 2 Bl. R. 1089. Gwinnet v. Philips. 3 T. R. 646. close, and that he took the cattle damage-feasant, plaintiff may specially reply title in another by whose command he entered, &c. and it does not vitiate the replication that it is unnecessarily proved, and farther to give colour to the defendant (a). For as trespass is a possessory action, it is enough for the plaintiff in his replication to traverse the title set out by the defendant, without setting up a title in himself; for the possession admitted in the plea in giving colour is sufficient unless the defendant can make out a title in himself. But if in trespass for taking a gelding (or other chattel), the defendant plead that the place where is one hundred acres, and that 7. S. is seised thereof in fee, and that he as his servant and by his express orders took the gelding (or other chattel) damage-feasant; the plaintiff cannot reply de injuria sua propria absq. tali causa, for that would put in issue three or four things; but he must traverse one thing in particular (b). 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 case, and that is where he makes a new assignment. 2. Or he may derive a title under the defendant, and then he must not deny its being the defendant's freehold. 3. He may and then he may either traverse the defendant's title, or not, as he pleases (c). set up a title not inconsistent with the defendant's, It is not necessary to have an interest in the soil, to maintain trespass quare clausum fregit, but an interest in the profits is sufficient, as he who has prima tonsura. So, if 7. S. agree with the owner of the soil to plough and sow 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 said it cannot be of the profits themselves; but that (as it seems) must be understood of the natural profits (d). The plaintiff may prove trespass at any time before the action brought, though it be before or after the day laid in the declaration. But in trespass with a continuando, the plaintiff ought to confine himself to the time in the declaration; yet he may waive the continuando, and prove a trespass on any day before the action brought, or he may give in evidence only part of the time in the continuando (e). The plaintiff can only prove the taking such goods as are mentioned in the declaration; because a recovery in the action could not be pleaded in bar to any other action brought for taking other goods than (a) 1 Esp. N. P. 212. (6) Bull. N. P. 93. (6) Ibid. 94. (d) Bull. N. P. 85. those specified in the declaration. Therefore, when the declaration was for entering the plaintiff's house, and taking diversa bona et catalla ipsius querentis ibidem inventa after verdict for the plaintiff the judgment was arrested (a). By the stat. 21 7. 1. c. 16. the defendant may to trespass quare clausum fregit, plead a disclaimer, and that the trespass was by negligence or involuntary, and tender of sufficient amends before the action brought; whereupon, or upon some of them the plaintiff shall be forced to join issue: and if the said issue be found for the defendant, or the plaintiff shall be nonsuited, the plaintiff shall be clearly barred from the said action, and all other suits concerning the same. Though the verdict do not agree with the plea in the manner and nature of the tenure, yet if it agree in substance in the point for which the distress was made, that is sufficient; for there is a difference between trespass and replevin, for in replevin it behoves the avowant to make a good title in omnibus (b). Thus in trespass for breaking and entering the plaintiff's house and taking his goods, the defendant pleaded, that the house is parcel of a half yard holden of A. by homage, fealty, escuage, uncertain suit of Courts, enclosing his park with pales, and rent of a pound of comyn, and for three years' arrear, and for homage and fealty of the tenant, he by A's command entered and took, &c. the defendant traversed 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 (c). In trespass for taking the plaintiff's cattle, justification that they were damage-feasant in the defendant's close is sufficient without setting forth a title (d). If trespass for taking and selling the plaintiff's goods be brought against two persons, and the one suffer judgment to go by default, and the other justify the taking on a distress for rent, by command of his co-defendant, and the selling by the licence of the plaintiff, and issue be taken on the licence and found for the defendant, the judg ment suffered by default shall be arrested; for the case of a licence cannot be distinguished from a gift of goods, or a release, which destroys the cause of action as to all the defendants (e). Trover for an irregular Distress. Trover also lies for a distress illegally taken; as where a right to distrain exists, but the distrainer (where the distress is for rent) takes such goods as are not lawfully the subjects of a distress; as wearingapparel in use, &c. (a) Bull. N. P. 84. (b) Ibid. 56. (c) Ibid. 55. (d) Osway v. Bristow. Mod. 37. (e) Biggs v. Greenfield. 8 Mod. 217. 2 Ld Raym. 1372. S. C. 1 Str. 610. S. C. For where cattle or goods are wrongfully taken and detained, the party may bring trespass vi et armis, replevin, trover, or detinue; or if they be converted into money, he may waive the tort, and bring assumpsit for money had and received: but the plaintiff having once made his election, cannot afterwards bring another action for the same cause, either whilst the former is depending, or after it has been determined (a). If therefore a party pay money in order to redeem his goods from a wrongful distress for rent (or any other supposed ground of distress, it is presumed,) he may maintain trover against the wrong doer (b). In order to maintain trover the plaintiff must have a right of property in the thing, and a right of possession; and unless both these things concur, the action will not lie.-Therefore where goods leased, as furniture with a house, have been wrongfully taken in execution by the sheriff, the landlord cannot maintain trover against the sheriff (c). For trover is a special action on the case, which one man may have against another, who hath in his possession any of his goods by delivery, finding, or otherwise, or sells or makes use of them without his consent, 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, so that the jury may know what is meant thereby (d). The conversion is the gist of the action, and the manner 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, such need not be proved; but it is sufficient to prove property in himself, possession to have been in the defendant, and a conversion by him. So, the declaration was holden to be good, though the conversion was laid to be on a day before the trover, for the postea convertit is sufficient, and the viz. void (e). The distinction between the action of trespass and trover is well settled; the former is founded on possession, the latter on property: a special property is sufficient in order to enable the party to bring trover; and even property is sufficient without possession (e). To support an action of trover, there must be a positive tortious act (f). Trover being founded on a tort, "not guilty" is the general issue. A release also may be pleaded specially, and it seems is the only special plea in this action. But as the defendant cannot plead the special matter, he may give it in evidence on the general issue (a). Where the goods are cumbrous, instead of allowing them to be brought into Court, the Court will grant a rule to shew cause, why on the delivery of the goods to the plaintiff and paying costs proceedings should not be staid (b). Trespass for an irregular Distress. Trespass will also lie for any irregularity in making the distress, or in the subsequent disposition of it, or conduct respecting it. Therefore trespass lies against a landlord, who, on making a distress for rent, turned plaintiff's family out of possession, and kept the premises on which he had impounded the distress (c). But respecting a distress for rent, by stat. 11 G. 2. c. 19. a distress for rent shall not be deemed unlawful for any irregularity in the disposition of it afterward, nor the party making it a trespasser ab initio : but the party aggrieved may recover full satisfaction for the special damage he shall have sustained thereby, and no more, in an action of trespass or on the case, unless tender of amends have been before made. s. 19. Trover therefore will not lie in such case (d). Trespass will not lie on an irregular distress, when the irregularity complained of is not in itself an action of trespass, but consists merely in the omission of some of the forms required in conducting the distress, such as procuring goods to be appraised before they are sold; the true construction of the provision, in 11 G. 2. c. 19. S. 19. that the party may recover a compensation for the special damage he sustains by an irregular distress in an action of trespass, or on the case, is that he must bring trespass if the irregularity be in the nature of an act of trespass; and case if it be in itself the subject-matter of an action on the case (e). Action on the Case for an excessive Distress. As to an excess of a distress taken, an action on the case lies for that on the statute of Marlbridge, 52 H. c. 1. but that will not warrant an action of trespass (f). Thus in trespass for breaking and entering his house, and taking an excessive distress, after judgment by default, it was holden, on error brought, that trespass would not lie, for the entry was lawful, and (a) Bull. N. P. 48. (b) Ibid. 49. (e) Messing v. Kemble. 2 Campb. 115. (c) Etherton v. Popplewell, 1 East. R. 139. | 658, (4) Wallace v. King, 1 H. El, R, 15. |