Case 5. If in trespass for breaking and entering plaintiff's close, and with cattle eating up his grass, the defendant pleads a justification, which is good as and entering the close, but is bad as to the trespass with the cattle, the plea is bad for the whole. The Earl of Manchester and others against Vale. TRESP RESPASS. The plaintiffs declare that the defendants on the 29th of September, in the 17th year of the reign of the now king, broke the close of the plaintiffs, called Marking and Yonder Moore, in the parish of Westmarke, in the county of Somerset, and the grass there with feet in walking trod down, and other the grass there with cattle, to wit, horses, to the breaking oxen, cows, swine, and sheep, eat up, with a continuando, &c. The defendant as to the force and arms, and the trespass with swine, pleads not guilty, and to the residue of the trespass, he pleads in bar, that Sir Thomas Bridges, knight, was seised of the manor of Wedmore with the appurtenances in the said county, in his demesne as of fee, and prescribes in the said Sir Thomas for common in the place where, &c. for all his commonable cattle levant and couchant upon the said manor at every time of the year, as appurtenant to the said manor. And further says, that the said Sir Thomas constituted and appointed the defendant to take care of his cattle put into the said close which, &c. And he further says, that the said Sir Thomas caused to be put divers commonable cattle of the said Sir Thomas Bridges which at the time when, &c. were in the said place where, &c. Whereupon the defendant, as servant to the said Sir Thomas Bridges at the time when, &c. entered into the said close in which, &c. to see the said cattle there, lest any damage should happen to them; and in entering he trod down the grass there, which is the same residue of the trespass, and this, &c. Wherefore, &c. upon which the plaintiffs demurred in law. [ 28 ] And it was objected on the part of the plaintiffs, that the defendant in his bar hath only said that the cattle were in the place where, &c. but not that he put them there. And it appears that the cattle were not the defendant's own cattle, and therefore, if he did not put them into the place where, &c. he is not guilty for a man cannot be guilty of trespass with cattle, unless they are his own cattle, or he actually put them into the place where, &c. And here the defendant has justified the trespass with cattle, and yet has not confessed it, nor said any thing to such purpose. (1) Then the plea being bad (1) See Hawe and Planner, ante, 14. note (3), and the authorities there cited. Every plea in justification states circumstances, which either excuse the fact complained of, or shew it to be lawful. From its nature, therefore, it Earl of in part, is bad for the whole, although he has justified some part well; for an entire plea cannot be good in part, and MANCHESbad in another part; because such an entire plea is not divisible. Cro. Eliz. 268.*— 331. †—434.‡-Cro. Jac. 27. § (2). (c) And is therefore bad on special demurrer. 6 East, 583. The King v. Johnson. [See ante, p. 14. notes.] (d) [2 B. & C. 220. St. Germain's v. Willan. 3 D. & R. 441. S. C. 1 Bing. N. C. 89. 96. Tremeere v. Morison. 3 Dowl. 193. Ansell v. Smith. 3 Dowl. 246. Macher v. Billing. 4 Bing. N. C. 203. Dyke v. Duke. 10 A. & E. 632. Calvert v. Moggs. 2 Perr. & D. 540. S. C. Accord.] A plea of set-off is an exception to this rule, the different parts of such a plea being considered as different counts in the same declaration. 2 Black. 910. Dowsland v. Thompson and others. [A plea of set-off, however, is no exception to the analogous rule dependent on the entire nature of a plea, viz. that if disproved in part, it shall fail altogether; for it has been held that the issue on a plea of set-off is indivisible; and therefore, when the plea is pleaded to the whole declaration, and the defendant proves a set-off to some amount, but not exceeding or equalling the whole of the plaintiff's aggregate demands, the defendant cannot claim to have the verdict entered for him for so much as he has proved; but the whole issue must be found for the plaintiff. Yet if there are other pleas on the record, such as payment, or the Statute of Limitations, by which the plaintiff's aggregate demands are so reduced, that the set-off covers the remainder, the defendant TER V. VALE. Ascue v. Sanderson. 380. S. C. by the name of Hallett v. Byrt. Willes's Rep. 15. Rowe v. Tutte. (c) (2) So in Norton v. Harvey, cited in 2 Saund. 50. Webbv. Martin, 1 Lev. 48. (d) is entitled to the verdict on the issue joined on the plea of set-off. 2 Cr. Mees. & R. 547. Cousins v. Paddon. 7 A. & E. 595. Moore v. Butlin. S. C. 2 Nev. & P.436. 5 Mees. & W. 109. Tuck v. Tuck. Ibid. 382. Kilner v. Bailey. 9 C. & P. 725. Barnes v. Butcher. But see 5 Dowl. 669. Green v. Marsh. To the general rule, that a plea which is disproved in part fails altogether, there are many exceptions in instances where, from the nature of the case, the plea is not entire. See 2 Cr. Mees. & R. 558. See also as to what issues may or may not be found by the jury distributively, 1 Mees. & W. 216. Phythian v. White. 1 Tyr. & Gr. 515. S. C. 3 Bing. N. C. 3. Knight v. Woore. 8 A. & E. 592. Routledge v. Abbott. 5 Bing. N. C. 622. Higham v. Rabett. 5 Mees. & W. 483. Anderson v. Chapman. The rule is further subject to this qualification, that an unnecessary averment in a plea, if capable of being separated without injury to the sense, need not be proved; for it is sufficient to prove so many of the facts alleged in the plea as will constitute a justification. 1 Taunt. 146. Spilsbury v. Micklethwaite. 1 Cr. Mees. & R. 757. Timothy v. Simpson. 1 Cr. Mees. & R. 827. Atkinson v. Warne. 2 Mees. & W. 477. Cohen v. Huskisson. 4 Bing N. C. 650. Baillie v. Kell. 10 A, & E. 593. Shearm v. Burnard.] Earl of And of such opinion was all the court. (3) And judg MANCHES- ment was given for the plaintiff. Saunders of counsel with So an entire replication, which is bad in part, is bad for the whole. Trueman v. Hurst, 1 Term Rep. 40. Webber v. Tivill, 2 Saund. 127. (e) Upon the same principle of the plea being entire, and therefore not divisible, it is, that if two or more join in a defence which is a sufficient justification for one, but no justification for the others, the plea is bad as to all; for the court cannot sever it, and say that one is guilty and the others not, when they all put themselves upon the same terms. Str. 509. Philips v. Biron. Ibid. 994. Smith v. Boucher. Ibid. 1184. Middleton v. Price. 3 Term Rep. 376, 377. per Buller J. in Duffield v. Scott. (f) (e) [But where the declaration has several separable subjects of complaint, to which the defendant pleads a joint justification, and the replication is divided into parts, addressed respectively to the separate subjects, each of such parts may be taken as a separate replication; and in such case, therefore, one part of the replication may be good, notwithstanding another part be bad. 3 A. & E. 741. Vivian v. Jenkin. 5 Nev. & M. 14. S. C. See also 11 A. & E. 411. Monkman v. Shepherdson.] (ƒ) [2 Bing. 523. Hedges v. Chapman. 1 Q. B. 17. Andrews v. Marris.] (9) Or rather all that it assumes in the introductory part to answer, and no more. Chitty on Pl. vol. i. p. 511. [Accordingly, where in debt for goods sold, the defendant pleaded, except as to 5l. 10s. 3d., nunquam indeb., and as to that sum, in bar of the further mainte (3) So 1 Lev. 48. Webb v. Martin. Cowp. 133. Ridout v. Brough. Every plea must answer the whole declaration or count. (g) Co. Litt. 303. a. Cro. Eliz. 434. Ascue v. Sanderson. 2 Lil. P. R. 302. 5 Term Rep. 553. Herries v Jamieson. Yelv. 225. Newhall v. Bernard. S. C. 1 Buls. 116. Post. 267. Osborne v. Rogers. But this difference arises from the form of the plea, namely, if a plea begin with an answer to the whole declaration, but in truth the matter pleaded is only an answer to part, the whole plea is bad, and the plaintiff may demur. 1 Salk. 179. Weeks v. Peach. 1 Ld. Raym. 231. Truscott v. Carpenter. Gilb. Hist. C. B. 3d ed. 157, nance of the action, payment and acceptance, after action brought, of 5l. 13s.7d. in full satisfaction and discharge of all the causes of action in the declaration mentioned, which related to the said sum of 5l. 10s. 3d.; to which there was a special demurrer, on the ground that it was not alleged that the payment was made and accepted in satisfaction and discharge of the damages and costs relating to the said sum; it was held, that the plea was good, because it was a good answer to so much as it professed to answer; and that the plaintiff might have signed judgment for the damages, including the costs, as being a part of the plaintiff's claim unanswered; notwithstanding the conclusion of the plea; which was informal in being larger than was necessary, and might have been specially demurred to on that account. 8 Mees. & W. 228. Henry v. Earl.] Note. There was another fault in the plea, because it was 158. 1 Str. 303. Woodward v. Robinson. 2 Roll. Abr. 104. (N), pl. 1. (h) But if a plea begin only as an answer to part, and is in truth but an answer to part; or though in law it is an answer to the whole (i), it is a discontinuance, and the plaintiff must not demur, but take his judgment for that as by nil dicit; for if he demurs or pleads over, the whole (h) 5 Taunt. 27. Barnard v. Duthy. Post. 296. note (1). 1 Chitty's Rep. 132. Wilcox v. Newman. [2 B. & C. 477. Thomas v. Heathorn. Ibid. 220. St. Germains v. Willan. 6 Bing. 266. 587. Clarkson v. Lawson. 2 Cr. Mees. & R. 719. Connop. v. Holmes. 1 C. & M. 618. M'Curday v. Driscoll. Ibid. 362. Crump v. Adney. 2 Mees. & W. 73. Putney v. Swann. But see 5 A. & E. 62. Harvey v. Grabham.] (i) But it has been decided that where a plea begins as an answer to part, and contains in the body of it an answer to the whole, the plaintiff may demur. 2 Bos. & Pul. 427. Gray v. Pindar. [See also 9 A. & E. 499. Burroughs v. Hodgson. 8 Mees. & W. [28.] It is observable, however, that in Gray v. Pindar there was a plea of non assumpsit to the whole decla ration; so that the special plea which was demurred to could not operate as a discontinuance. (k) But notwithstanding he has replied or demurred, the plaintiff may, at any time during the term of which the plea is pleaded, take judgment by nil dicit as to the part not answered. 1 Ld. Raym. 716. 1 Salk. 180. In Willes, 480. Bullythorpe v. Turner, Willes C. J. says, that Herlakenden's case is certainly not law, and cites Yelv. 38. Hughes v. Philips, and Cro. Jac. 27. Thornel v. Lassels, in support action is discontinued. 4 Rep. 62. a. Herlakenden's case and the authorities there cited. 1 Roll. Abr. 487. pl. 10. 1 Salk. 179. Ibid. 180. Market v. Johnson. 1 Ld. Raym. 231. Ibid. 716. Vincent v. Beston. 2 Ld. Raym. 841. Peers v. Henriques. Gilb. Hist. C. B. 155. 158. 1 Str. 302. Woodward v. Robinson. (k) But this rule must be of his opinion. But the former of those cases does not apply; for there the defendant's plea did profess to answer the whole declaration, and the plaintiff demurred, because an improper traverse was taken and had judgment: in the latter, although the plea left part of the declaration unanswered, and the plaintiff demurred for that, among other reasons, yet the question as to the demurrer operating as a discontinuance was not mooted. It seems, therefore, that the opinion of Willes C. J. is not wellfounded, especially as the other cases cited in the above, note fully support Herlakenden's case. That the plaintiff does not discontinue the action by replying to a plea which purports to answer the whole declaration, but is in law no answer to part, and might therefore have been demurred to, see 6 Taunt. 645. Everard v. Pater son. [By the new rule of court, dispensing with the actio non and prayer of judgment, a plea pleaded without such formal parts shall be taken, unless otherwise expressed, as pleaded in bar of the whole action. And consequently, where a plea so pleaded is in truth but an answer to part of the declaration, it must be regarded, with reference to the doctrine contained in the note above, as beginning with an answer to the whole declaration. And therefore the plaintiff' not averred that the cattle were levant and couchant (4) — but this was not moved. understood with this limitation, that the part of the declaration which is not answered by the plea is material, and the gist of the action; for where any thing is inserted in the declaration as matter of aggravation, the plea need not answer or justify that; for the answering of that which is the gist of the action will cover the whole declaration. 3 Wils. 20. Dye v. Leatherdale. 3 Term Rep. 297. Taylor v. Cole, and Fisherwood v. Cannon, there cited. (7) (4) And therefore bad upon a general demurrer. So is 1 Lev. 196. Cheadle v. Miller. 1 Sid. 313. S. C. And so, I conceive, it still is, notwithstanding the statute 4 Ann. c. 16. For must demur, and cannot sign judgment for the part unanswered. 5 Bing. N. C. 247. Wood v. Farr. See 9 Mees. & W. 458. Parratt v. Goddard.] (1) 2 Wils. 313. Gates v. Bayley. 2 Camp. 175. Monprivate v. Smith and another. [See further, 10 Bing. 35. Stammers v. Yearsley. 1 Bing. N. C. 72. Bush v. Parker. 1 Tyr. & Gr. 369. Porter v. Izod. 1 Mees. & W. 381. S. C.] (m) These positions, viz. that for want of an averment of the cattle being levant and couchant, a plea of common is bad on general demurrer; and that the want of such averment is aided after verdict by the statute of jeofails; cannot, it is apprehended, both stand good. The omission of a material and traversable averment may, indeed, be aided after verdict; but then it is at common law, where the fact omitted to be averred is a necessary part of the issue, which is not the case here. See post. 228 a. note. No case can be put in which the statutes of jeofails have been held to aid the total omission of a material aver the averment of levancy and couchancy is material and traversable. So is 6 Mod. 115. Emerton v. Selby. 1 Burr. 316. Robinson v. Raley. H. 10 Ann. C. B. Com. Dig. Pleader, 767. But the want of such averment is aided after verdict by the statute of jeofails; for it shall be intended after verdict. 1 Lev. 196. above cited. Sty. 428. Bronge v. Moore. 1 Vent. 34. Anon. 1 Mod. 7. Meller v. Staples. 1 Vent. 165. by Twisden J. in Hoskins v. Robbins. Post. 227. Stennel v. Hogg, and 228. note (1). Cro. Eliz. 458. Corbyson v. Pearson. Cro. Jac. 44. France v. Tringer. (m) The reason why it is necessary to aver, that the ment, except such as are expressly mentioned in the statutes, among which this is not; indeed it has been recently held, in several cases, that such an omission is not aided after verdict; 1 M. & S. 234. Jackson v. Pesked, 3 M. & S. 110. Cook v. Cox. 4 B. & A. 655. Butt v. Howard; and in these cases no attempt was made to argue that the omission was aided by the statutes of jeofails. It is, however, perfectly clear that the cases above cited by the learned serjeant establish the point, that the want of an averment of levancy and couchancy is aided after verdict by the statutes of jeofails, and the expression " for it shall be intended" is frequently used: but, with submission, the reason is bad: it applies to omissions aided after verdict at common law, which are aided by intendment; but it does not apply to omissions aided by the statutes of jeofails, which do not operate by intendment but by positive enactment, that the omission of matters of form, and certain specified mat |