and if he do not, he cannot maintain trespass against the overseers of the poor, who distrain on him for non-payment of the rate. The house of the plaintiff, an uncertificated bankrupt, was broken open, and effects acquired by him, subsequently to his bankruptcy, were taken by the defendants, who had become his creditors since the bankruptcy, and did not know who were the assignees under the bankruptcy. The bankrupt having sued the defendants in trespass, they obtained, after a rule for plea, a surrender of the assignees' interest in the effects seized: it was holden " that this was a ratification of the seizure, and that the plaintiff could not recover. So where the assignees of an uncertificated bankrupt, by agreement, for a valuable consideration paid to them by a third party, had left the bankrupt's furniture, &c. in his possession, and afterwards, notwithstanding such agreement, seized the same, it was holden that they were justified in so doing, an uncertificated bankrupt not being entitled to retain any property against his assignees.

III. Of the Declaration.

Venue. THE action of trespass quare clausum fregit is a local action, and consequently the venue must be laid in the county where the land lies; for otherwise the plaintiff, on the general issue, may be nonsuited at the trial, unless advantage be taken of the stat. 3 & 4 W. 4. c. 42. s. 22, (see ante, p. 499,) under which local actions may be tried and writs of inquiry executed in any county, if court or judge shall so order; but trespass for taking goods is transitory, and the venue may be laid in any county; subject, however, to its being changed upon an application to the court, supported by the usual affidavit, if not laid in the county where the action arose. The declaration ought to allege the commission of the fact directly and positively, and not by way of recital, e. g. for that on such a day the defendant broke and entered the plaintiff's close, and not for that whereas, &c.

By R. G. H. T. 4 W. 4, several counts in trespass for acts committed at the same time and place are not to be allowed.

Day. It is not necessary to state the precise day on which the trespass was committed; it will be sufficient to insert any

n Hull v. Pickersgill, 1 Brod. & Bing. o Nias v. Adamson, 3 B. & A. 225.

day before the commencement of the action. Formerly, in order to avoid the necessity of bringing several actions, it was usual for the plaintiff, in cases where the nature of the trespass permitted it (5), to declare with a continuando, as it was termed, that is, that defendant on such a day committed certain trespasses (specifying them), continuing the same trespasses from such day to such a day, at divers days and times; and if, as was generally the case, the declaration contained a charge for some acts which did not lie in continuance, as well as for some which did, then the continuing was expressly confined to those trespasses which did lie in continuance (6). This was the regular mode of declaring, but it frequently happened through inadvertence, that the continuando was not so restrained, but was applied to all the trespasses by the general words transgressiones prædictas continuando, in which case objections used to be made; but the courts, in order to prevent judgments being arrested on this ground, laid down a rule P, that where several trespasses were laid in one declaration, some of which might be laid with a continuando, and some not, and the continuando, instead of being confined to such as lay in continuance, went to all, the court, after verdict, would restrain the continuando by intendment to those trespasses which might be laid with a continuando. form of declaring with a continuando has fallen into disuse, the language of the modern declarations being, "that defendant, on such a day, in such a year, and on divers other days and times, between that day and the day of the commencement of the suit, committed several trespasses." It will be perceived, that the principal object of the ancient and modern form is the same, viz. to comprehend several trespasses under one declaration. In substance, also, both forms

p Gillam v. Clayton, 3 Lev. 93. Brook v. Bishopp, Salk. 639. See also

The

Butler v. Hedges, 1 Lev. 210, and
Fontleroy v. Aylmer, Ld. Raym. 239.

(5) Treading down and consuming grass, &c. with cattle, was considered as a trespass which lay in continuance; but taking a horse, killing a dog, cutting down a tree, and the like, being acts, which, when executed, could not be repeated, as they terminated upon the commission of them, were holden not to lie in continuance.

(6) See Co. Ent. tit. Trespass, p. 4, where the declaration stated, that the defendant, on such a day, broke the close of the plaintiff, and eat up, trod down, and consumed the grass there growing, with cattle, and continuing the said trespass as to the eating up, treading down, and consuming the said grass from the day aforesaid until such a day, &c.

are the same but the modern form is more concise, and it is attended with this further advantage, that it does not afford any scope for those nice and subtle objections, which used to be raised on the difference between acts which lay in continuance and acts which did not (7). Still, however, care must be taken not to allege that defendant committed a single act, or an act which terminated in itself, on divers days and times, for that would be absurd 9, and afford just cause for special demurrer.

Formerly in trespass quare clausum fregit the plaintiff might have declared generally without naming the close; but now by R. G. H. T. 4 W. 4, the close or place in which, &c. must be designated in the declaration by name or abuttals or other description, in failure whereof the defendant may demur specially.

The closes in which, &c. does not mean the whole close referred to in the declaration, but the place in which the trespass is proved to have happened, and the defendant may so apply it. Where the plaintiff had named the close in his declaration, and the defendant pleaded liberum tenementum generally, without giving any further description of the close, it was holdent, that the plaintiff was not driven to a new assignment, but was entitled to recover upon proving a trespass done in a close bearing the name given in the declaration, although the defendant might have a close in the same parish known by the same name.

In trespass for taking goods, the goods must be specified", and an omission in this respect will not be aided even by verdict. The declaration must also state, that the land or goods were the plaintiff's land or goods; hence, if the words " of the plaintiff" or "his" be omitted, the declaration will be bad; but this omission may be aided by pleading over. In

(7) If by continuance, as applied to this subject, trespasses without any intermission were to be understood, it is scarcely possible to conceive many acts of which continuance, in this strict sense, could justly be predicated. Consuming and spoiling grass, &c. with cattle, which may be presumed to be levant and couchant on the land, day and night, is one instance, but it would be difficult to enumerate many more.

declarations for taking animals feræ naturæ, it must be stated that the animals were either dead, tame, or confined; otherwise property in the plaintiff cannot be alleged; at least such allegations will be bad on demurrer. In trespass for taking duas damas ipsius plaintiff, in a certain close of the plaintiff, called the park; on general demurrer, the declaration was holden to be bad, because a person cannot have property in deer unless they are tame and reclaimed (8). The value of fixtures may be recovered under the terms, "goods, chattels, and effects," in a declaration in trespass a. As to the necessity of alleging the trespass vi et armis and contra pacem, see ante, p. 30.

IV. Of the Pleadings, and herein of the New Rules.

1. Of the Plea of Not Guilty.

THE general issue in this action is, not guilty. By R. G. H. T. 4 W. 4, in actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially. In actions of trespass de bonis asportatis, the plea of not guilty shall operate as a denial of the defendant having committed the trespass alleged by taking or damaging the goods mentioned, but not of the plaintiff's property therein. To a declaration for breaking and entering plaintiff's close, the defendant pleaded-1st. not guilty; 2dly, that the close was not the close of the plaintiff; 3dly, that the close was the soil and freehold of the defendant; it was holden, that evidence of possession was sufficient to

z Mallocke v. Eastly, 3 Lev. 227. a Pitt v. Shew, 4 B. & A. 206.

b Heath v. Milward, 2 Bing. N. C. 98.

(8) John Rough being convicted on an indictment for stealing a pheasant*, value 40s. of the goods and chattels of H. S., all the judges, on a second conference, in Easter Term, 1779, after much debate and difference of opinion, agreed that the conviction was bad; for in cases of larceny of animals feræ naturæ, the indictment must shew that they were either dead, tame, or confined; otherwise they must be presumed to be in their original state; and that it is not sufficient to add " of the goods and chattels" of such an one.

* Rough's case, 2 East, P. C. 607.

entitle the plaintiff to a verdict on the second plea. By stat. 11 G. 2. c. 19. s. 21, "In actions of trespass brought against any person entitled to rents or services of any kind, their bailiff or receiver, or other person, relating to an entry by virtue of this act, or otherwise, upon the premises, chargeable with such rents or services, or to any distress, or seizure, sale, or disposal of any goods or chattels thereupon, the defendants may plead the general issue, and give the special matter in evidence." In a case where rent being in arrear, the tenant had removed his goods clandestinely from the demised premises, but the landlord had seized them as a distress within thirty days, as allowed by the preceding stat. 11 G. 2. c. 19. s. 21, it was holden, that to an action of trespass brought by the tenant against the landlord for such seizure, the defendant could not give the special matter in evidence upon the general issue by virtue of the preceding clause (s. 21); for that clause is confined to those cases where the distress is made upon the premises demised. In this case, the defence must be pleaded speciallyd.

2. Accord and Satisfaction.

Accord and satisfaction, being a good plea in all actions where damages only are to be recovered, is consequently a good plea in trespasse; but a plea of accord, without satisfaction, cannot be supported. Hence, in trespass for taking cattle, it cannot be pleaded, that it was agreed "that plaintiff should have his cattle again;" for this is no satisfaction for the injury done. So where to trespass for breaking and entering the plaintiff's close, the defendant pleaded" that in Easter terms, in the thirty-first year of the present reign, the plaintiff declared against the defendant in this cause for the several trespasses above supposed by the defendant to have been done; and that afterwards, and before plea pleaded in this cause, to wit, on such a day, it was agreed between the plaintiff and defendant, in respect to an action then lately commenced between them, which was that day settled, as follows: that the defendant was to pay 17. 1s. on account of the matter in dispute, and the plaintiff was to pay the law charges; and further, that whatsoever disputes then were, or had or might be in being, touching suits or actions, to the

c Vaughan v. Davis, 1 Esp. N. P. C. 257. Rooke, J.

d Furneaux v. Fotherby, 4 Campb. 136. Lord Ellenborough, C. J.

e 9 Rep. 78. a.

f 1 Roll. Abr. 128. Accord, (A.) pl. 7. g James v. David, 5 T. R. 141.