law; viz. as connected with the doc trine that a man acting under legal authority is not confined in court to the authority under which he has professed to act at the time when he acted, but that he may resort to any other authority he then possessed, which justified his proceeding; as for instance, if a man takes a distress for one thing, still, when he comes and pleads, he may avow for whatever thing he pleases; a man may distrain for rent, and avow for heriot service, 1 Ld. Raym. 454. Groenvelt v. Burwell. 7 Term Rep. 654. Crowther v. Ramsbottom. 2 Y. & Jerv. 536. Wootley v. Gregory. And though it is, perhaps, somewhat difficult to reconcile this doctrine with Lucas v. Nockells, yet it has been subsequently acted upon as existing law. Thus in 1 A. & E. 265. Governors of Bristol Poor v. Wait. 3 Nev. & M. 359. S.C., it was held, that if a party enters and makes a joint distress for four several rates, being furnished for that purpose with four warrants, one of which is bad, he may, in an action of replevin for such distress, justify under the good warrants, and abandon the bad one; and the court appeared to recognize the rule, that a distress may be justified, though the distrainer profess to act under an illegal warrant, provided he were at the time armed with a lawful one. See also Baillie v. Kell. 4 Bing. N. C. 639. 6 Scott, 379. S. C. Again, Lucas v. Nockells must not be understood as having established the general proposition that the motive and intention, with which an authority given by law was exercised, can be inquired into on the general replication de injuria. 2 Mees. & W. 791. Oakes v. Wood; (see the notes to Greene v. Jones, post. p. 299, et seq.) nor as having decided, that the plaintiff is at liberty, under this replication, to shew an abuse of the authority which renders the defendant a trespasser ab. initio. Ibid. 1 Bing, N. C. 380. Price v. Peek. 1 Scott, 205. S. C. (See the notes post. p. 300.)] The Earl of Manchester and others against Vale. Somersetshire, to wit. E it remembered that heretofore, to wit, in Easter term last past, before our lord the king at Westminster, came Edward Earl of Manchester, lord chamberlain of the household of our lord the now king, Sir Lancelot Lake, knight, and Carey Harvey, otherwise Mildmay, by Robert Powlet, their attorney, and brought here into the court of our said lord the king, then there, their certain bill against William Vale, in the custody of the marshal, &c. of a plea of trespass; and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit: Somersetshire, to wit: Edward Earl of Manchester, lord chamberlain of the household of our lord the now king, Sir Lancelot Lake, knight, and Carey Harvey,, otherwise Mildmay, complain of William Vale being in the custody of the marshal of the Marshalsea of our lord the king before the king himself, for that he, on the 20th day of September, in the Case 5, [24] Earl of TER V. VALE. 17th year of the reign of our lord Charles the Second, now MANCHES- king of England, with force and arms, &c. broke and entered the closes of them the said Earl, Sir Lancelot, and Carey, called Mark Moore and Yonder Moore, in the parish of Westmarke, in the said county, and with his feet in walking trod down and consumed the grass of the said Earl, Sir Lancelot, and Carey, then lately growing in the said closes, of the value of 107.; and with certain cattle, to wit, horses, oxen, cows, swine, and sheep, eat up, trod down and consumed, other the grass of the said Earl, Sir Lancelot, and Carey, in the said closes likewise lately growing, of the value of 101. (1), con (1) Trespass is laid with a continuando for several days, to prevent the necessity of bringing several actions. 2 Roll. Abr. 545. pl. 1. The more usual way of declaring at present is, "that the defendant on such a day, in "such a year, and on divers other days " and times between that day and some "other day," committed the trespasses complained of. And the plaintiff may give evidence of a trespass committed on all, or any of, the days; and since the continuing of a trespass from day to day is considered in law a several trespass on each day, and must be directly and positively answered by the defendant, as well as the original trespass; 2 Ld. Raym. 976. Monkton v. Pashley; just as the removing of goods, wrongfully taken at first, from one place to another, is held to be a several trespass at each place; therefore this way of declaring will answer the purpose full as well as laying the trespass with a continuando. But there are many acts of trespass which, when executed, cannot be done again, but terminate upon the commission of them, and therefore can (a) Upon the same principle, where in covenant for stocking lands otherwise than with sheep on a certain day and divers other days and times, the defendant pleaded, that he did not stock not in their nature be continued: as where a man cuts down another's trees, or kills his horses, dogs, or rabbits, or takes away his goods. In these and the like cases, if the trespasses were repeated, it is necessary to allege that they were committed, on different days and times; or at least to insert as many counts in the declaration as there are trespasses, for they cannot be laid with a continuando. If they are, objection should be made at the trial, and the plaintiff will not be permitted to give evidence of more than one act of trespass. He is not however confined to the time in the declaration, but is at liberty to prove a trespass committed at any time before the commencement of the action. 7 Mod. 152. Brook v. Bishop. S. C. 2 Ld. Raym. 823. 2 Salk. 639. 2 Ld. Raym. 974. 976. Monkton v. Pashley. S. C. 2 Salk. 639. Comberb. 427. (a) If the plaintiff intends to give evidence of repeated acts of trespass, he must confine himself to the time in the declaration, whether it be laid with a continuando, or in the modern way of, on divers days and otherwise than with sheep on any of the days laid in the declaration, the plea was held bad, as tendering an immaterial traverse. 2 B. Moore, 91. Corporation of Arundel v. Bowman. tinuing the said trespass in the said closes, as well with his feet in walking, as with the said cattle, on divers days and times, from the said 20th day of September, in the said 17th year aforesaid, until the day of the exhibiting of this bill, to wit, the 2d day of May, in the 18th year of the reign of our said lord the now king; and other wrongs to them did, against the peace of our said lord the now king, and to the damage of the said Earl, Sir Lancelot, and Carey, of 401.: and thereof they bring suit, &c. Earl of MANCHES TER V. VALE. And now at this day, to wit, Friday next after the Morrow Imparlance. of the Holy Trinity in this same term, until which day the said William Vale had leave to imparl to the said bill, and then to answer, &c. before our lord the king at Westminster, come as well the said Earl, Sir Lancelot, and Carey, by their said attorney, as the said William by Francis Coles, his attorney. And Pl a. the same William defends the force and injury when, &c. and arms, and the trespass with swine, defendant pleads not guilty, and issue thereon. And as to coming with force and arms, or whatever that is As to the force against the peace of our said lord the now king, and the eating up, treading down, and consuming the said grass with the said swine, at the said time when, &c. and on the said divers other days and times, from the said 25th day of September, in the year above-said, until the said 2d day of May thence next following, saith, that he is not thereof guilty, and of this he puts himself upon the country. And the said Earl, Sir Lancelot, and Carey thereof likewise, &c. And as to the residue of the said trespass above supposed to be done, he the said times: but in either case he may, if he please, waive the time in the declaration, and prove a trespass at any time before the action brought. The laying of a trespass with a continuando where it ought not to be so, is bad upon special demurrer, but aided by a verdict. 1 Ld. Raym. 240. Fontleroy v. Aylmer. So if it be improperly laid “on divers days "and times;" as where the declaration was that the defendants on, &c. and on divers other days and times between that day and, &c. made an assault upon the (b) In that case the expression used was, that the defendant "assaulted;" which is remarked by Lord Ellenbo And as to the residue of the said trespass. plaintiff, &c. it was held bad upon special demurrer, because an assault is one entire individual act. Cowp. 828. Michell v. Neale. S. P. 6 East, 395. English v. Purser. Contra, 2 Bos. & Pull. 425. Burgess v. Freelove. (b) So where several trespasses are laid with a continuando, and some of them are proper, and the others not, after verdict the continuando shall be extended to those trespasses only which are capable of being continued. 7 Mod. 152. 2 Ld. Raym. 823. 2 Salk. 639. rough C. J. in 6 East, 395. as distinguishing the case. Earl of TER V. VALE. Sir Thomas Bridges seised in fee of the manor of Wed more; *[ 25 ] and prescribes in Sir Thomas Bridges for a right in common in the locus in quo, as appurtenant to the said ma nor. William saith, that the said Earl, Sir Lancelot, and Carey ought MANCHES- not to have or maintain their said action thereof against him, because he saith that long before the said time when, &c. and at the said time when, &c. and continually afterwards hitherto, one Sir Thomas Bridges, knight, was and yet is seised of and in the manor of Wedmore, with the appurtenances, in the said county in his demesne as of fee; and that he the said Sir Thomas, and all those whose estate he now has, of and in the said manor, with the appurtenances, from time whereof the memory of man is not to the contrary, have had, and been, accustomed to have for themselves, their farmers and tenants of the said manor, with the appurtenances, common of pasture for all and all manner of their commonable cattle, levant and couchant within the said manor, in the said closes called Marke Moore and Yonder Moore in every year, and at all times of the year, as to the said manor of Wedmore, with the appur tenances belonging and appertaining. And the said Sir Thomas, being so seised of and in the said manor, with the appurtenances, he the said Sir Thomas, before the said time when, &c. to wit, on the 28th day of September, in the 17th year above-said, at the said parish of Westmark, in the said county, constituted and appointed him the said William to have the care of the cattle of the said Sir Thomas, which he, at any time from the said 28th day of September, in the 17th year above-said, until the said 2d day of May, in the 18th year There were di- above-said, should put into the said closes called Marke Moore and Yonder Moore, to use and take the said common of pasture there. And the said William further saith, that at the said time when, &c. and on the said divers other days and times quo, &c. which in the said declaration above specified, there were divers commonable cattle of him, the said Sir Thomas, in the said closes I called Marke Moore and Yonder Moore, which said cattle he fendant entered the said Sir Thomas caused to be put into the same closes, to up the grass there growing, using and perceiving his said common of pasture in the said closes so as aforesaid belonging and appertaining to his said manor of Wedmore aforesaid: whereupon the said William, as the servant of the said Sir Thomas, and by his command, at the said time when, &c. and on the said divers other days and times, from the said time when, &c. until the said 2d day of May, in the 18th year above-said, entered into the said closes called Marke Moore and Yonder Moore, to see the said cattle of the said Sir Thomas then, upon the occasion aforesaid, so as aforesaid being in the Sir Thomas ap pointed defendant to take care of his cattle in the locus in quo. vers common able cattle at the said time when, &c. in the locus in Sir Thomas had caused to be put there: whereupon de into the said locus in quo,&c. to see the said cattle, lest any damage should happen to them, eat Earl of TER V. the trespass, said closes eating up, using and taking his common aforesaid, lest any damage should at any time happen to the said cattle; MANCHESand the said William with his feet in walking trod down and consumed the said grass in the said closes then growing, as it was lawful for him to do: which said entering of him the said which is the William into the said closes, for the cause aforesaid and with same residue of his feet in walking, treading down and consuming the grass in the said closes, and consuming and eating up, with the said divers commonable cattle of the said Sir Thomas Bridges, other the grass in the said closes, for the said time in the said declaration above specified, using and perceiving his said common of pasture there, is the same residue of the said trespass, whereof the said Earl, Sir Lancelot, and Carey above thereof complain against him the said William: and this he is ready to verify. Wherefore he prays judgment if the said Earl, Sir Lancelot, and Carey ought to have or maintain their said action thereof against him, &c. to hear their [ 26 ] Venire facias the issue as to as well to try assess the contingent da And for causes of demurrer in law upon that plea, they Causes of the said Earl, Sir Lancelot, and Carey, according to the form demurrer. of the statute in such case lately made and provided, shew unto the court here these causes following: that is to say, for that the said plea is uncertain, and wants form, &c. Joinder in demurrer. -But because the court of our said lord Continuances. the king, now here, is not yet advised of giving their judgment of and upon the premises, whereof the said parties have put themselves upon the judgment of the court, a day is therefore given to the said parties, before our lord the king at Westminster, until day next after judgment of and upon the premises, for that the court of our said lord the king, now here, is thereof not yet, &c. And as well to try the said issue above joined between the said parties to be tried by the country, as to inquire what damages the said Earl, Lancelot, and Carey have sustained on occasion of the said trespass, whereof the said parties have put themselves upon the judgment of the court, if it should happen that judgment shall be thereof given for the said Earl, Lancelot, and Carey against the said William, let a jury thereof come before our lord the king at Westminster on the day next after and who neither, &c. to recognize, &c. because as well, &c. The same day is given to the said parties there, &c. * mages upon the demurrer. See post. 109. note (1). [ 27 ] |