declaration varied from his writ, the Defendant could never (a) Where a writ is sued out by Plaintiffs as executors, and a declaration is afterwards delivered in their own right, the Court will discharge the Defendant on filing common bail. Douglas and others v. Irlam, 8 Term Rep. 416. So if Plaintiff take out a writ in his own name and declare as executor; or sue out a writ Rule absolute (a). 1801. KERR V. SHERIFF. HAWKINS V. ECKLES, WILSON, SMITH, and ROUTH. REPLEVIN of cattle. the 1st, The Defendant Routh in his own right and other Defendants as his bailiffs acknowledged the taking, because the Defendant Routh was seised in his demesne as of fee of and in a certain messuage with the appurtenances situate, &c." and the said Routh and all those whose estate he now has and at the same time when, &c. had, of and in the said messuage, &c. with the appurtenances from time whereof, &c. have had and have been used and accustomed to have and of right during all the time aforesaid ought to have had, and the said Routh still of right ought to have common of pasture in and throughout the said place in which, &c. called, &c. for two cows or heifers as to the said messuage with the appurtenances belonging and appertaining:" they then acknowledged the taking of the cattle as damage feasant, and prayed a re turn. 2dly, The Defendant pleaded by way of justification "that the said Routh before and at the said time when, &c. was possessed of a certain other messuage with the appurtenances situate, &c. and that the said Routh being so possessed thereof before and at the said time when, &c. was lawfully entitled to and of right ought to have had common of pasture in and throughout the said place in which, &c. to depasture the same at the said time when, &c. with two cows or heifers as to the said last-mentioned messuage with the appurtenances belonging and appertaining." They then averred, that the cattle Feb. 4th. In an avowry Defendant averwhose estate he now has, &c. from time whereof, &c. have been ac red that all those customed to have and of right during all the time aforesaid ought still of right ought to have common of pasture in the locus in quo Held bad, and that it did not averment of amount to an right of common at all times of the year. in replevin plead by way of justification of the taking that he was possessed of If Defendant a messuage with common appur tenant, and that the Plaintiff's mage feasant on cattle were da the common, and conclude in bar, without praying a return, it seems that such a plea is bad. were 1801. HAWKINS v. ECKLES and Others. were damage feasant, so that the said Routh could not enjoy his common tam amplo modo, and therefore the said Routh in his own right and the other Defendants, as servants of the said Routh, took them and detained them as a distress for such damage; and concluded by praying judgment si actio, &c. 3dly, The Defendants also pleaded by way of justification, that the Defendants Wilson and Smith were possessed of the place in which, &c. with the appurtenances, and being so possessed thereof the said two Defendants in their own right, and the other two as their servants, took the cattle damage feasant; concluding as in the second plea. The Plaintiff demurred specially, and assigned for causes, "that the said Defendants have not shewn in the first avowry and cognizance at what time or times and when, nor for what period of time the said Defendant Routh is entitled to common of pasture in the said place in which, &c. but have only alleged that he has common of pasture in the said place in which, &c. generally without specifying whether he has common every year and at what period of the year or how otherwise, so that it does not appear that the said Defendant Routh at the time of taking the said heifers had any right of common in the said place in which, &c. And also for that said Defendants have in their said second avowry and cognizance stated that said Defendant Routh was possessed of a certain messuage and as such was lawfully entitled to common of pasture in the said place in which, &c. which allegation is too general, and no certain issue can be taken either upon the possession of said Defendant Routh of the said messuage or upon title to common of pasture in the said place in which, &c. And also for that it is alleged in the last avowry and cognizance that the said Defendants Wilson and Smith were possessed of the said place in which, &c. whereas it ought to have been stated that some person was seised thereof in fee and deduced a title to the said messuage from such person to the said Defendants Wilson and Smith. And also for that the second and last avowries and cognizances begin and conclude in bar of the action instead of averring and acknowledging respectively the taking of the said heifers and praying a return of them. And also for that all the said avowries and cognizances are defective, uncertain, and want form, &c.” Williams, Serjt., in support of the demurrer, after stating it to a common learning that avowries must shew a good title in be " omnibus" omnibus" so as to entitle the Defendant to a return, and citing Goodman v. Ayling, Yelv. 148. Matthews v. Cary, Carth. 74. Salk. 107. S. C. and Butt's case, 7 Co. 23., was proceeding to argue on the pleas, When Vaughan, Serjt., was called upon by the Court to state the grounds on which he thought the demurrer might be resisted. In respect of the avowry he observed, that as it was averred that the avowant and all those whose estate he had, "from time whereof the memory of man was not to the contrary," were accustomed to have a right of common, "and - during all the time aforesaid" of right ought to have had it, it amounted to an averment that the avowant was entitled to common at all times of the year, and that if any right more limited than that had been proved at the trial, the avowry could not have been supported. As to the pleas, he said, that he meant to contend that they amounted to a sufficient justification of the taking; and that it was not necessary, in a mere justification, to shew a title in omnibus (a), as no return is prayed (b). (a) In trespass it is sufficient to justify under a possession if the title does not come in question. As in assault and battery and molliter manus pleaded. Skevill v. Avery, Cro. Car. 138. So in quare clausum fregit Defendant may plead that he was possessed of a close called A., and the Plaintiff of a close called B., that the latter ought to re pair the fences, and that for default thereof Defendant's cattle escaped into B. Faldo v. Ridge, Yelv. 74. So to trespass for taking cattle, possession of the locus in quo for a term of years was pleaded, and that the cattle were damage feasant therein. Anon. 2 Salk. 643. Searl v. Bunion, 2 Mod. 70. Langford v. Webber, 3 Mod. 132. And in Randle v. Dean and Another, Lutw. 1496. which was trespass for beating the Plaintiff's servants and horses, the Defendant pleaded that he was possessed of the locus in quo, and that the servants and horses were damage feasant. The Reporter indeed observes at the end of this last case, that no exception was taken, that possession only was pleaded without shewing what estate; but had it been taken it should seem from the current of anthorities that it would not have availed. There is how. ever a case in Moor, 846, Smith v. Bull, where the Defendant in an action of assault and battery having pleaded that he molliter manus imposuit on the Plaintiff who entered But into his close, the Court held that the De- before 1801. HAWKINS ย. ECKLES and Others. 1801. HAWKINS v. ECKLES and Others. But The Court being clearly of opinion that the avowry was bad, offered the Defendants leave to amend, intimating that if they persisted in arguing the pleas they must do it at their peril, since they would not be allowed to amend, if upon argument the Court should hold the pleas to be bad. On hearing this, Vaughan consented to amend on payment of costs. before the Court, and a conusance by the the above cases it appears to have been determined that in a justification of trespass where the title does not come in question, possession alone may be pleaded, but in an avowry or conusance in replevin it can not. Whether it may be pleaded in replevin where the taking only is justified, and no return prayed, does not appear to have been hitherto expressly decided. (b) There are many instances in which the Defendant in replevin cannot avow, but can only plead a justification of the taking, in which cases he is not to pray a return. See Gilbert's Replevin, c. 7. s. 3. p. 132. ed. 2. Feb. 5th. If a person against whom a commission of lunacy has issued, be arrested, the Court of Common Pleas has no power to STEEL v. ALAN. MARSHALL, Serjt., moved to discharge the Defendant out of custody upon a common appearance, on the ground of his being a lunatic, and a commission of lunacy having issued against him previous to the arrest. Lord ELDON, Ch. J.-I am afraid that there is no prohibidischarge him. (a) tion in the law of England from arresting a lunatic. I have often known the Court of Chancery go out of its jurisdiction in order to assist a lunatic in this respect; and order a Master to take an account of his debts, considering it to be for the benefit of the lunatic that they should be paid, as he would otherwise be subject to arrest by all his creditors. Marshall took nothing by his motion (b). (a) And see Steel v. Allan, post. 437. of which cases it appeared by affidavit that the Defendant had become insane after the arrest, and in the latter that he was insane at the time of the arrest. HIFFERMAN v. LANGELLE. THE declaration in this case, which was a town cause, was THE delivered de bene esse on the 17th of November, indorsed "to plead in .” On the 19th the Defendant obtained an order for a particular, which was complied with on the 20th, and on the 21st judgment was signed for want of a plea. The Court on a motion to set aside the judgment, held that the indorsement on the declaration amounted to a notice to plead according to the rules of the Court, viz. in four days; that the time for pleading was not suspended by the order for a bill of particulars; and that although a Plaintiff cannot sign judgment until the order for a particular has been complied with, yet he may do so immediately after having delivered the particular, provided the time for pleading be then elapsed. Bayley, Serjt., for the Plaintiff. Shepherd, Serjt., for the Defendant. (a) Vide Mowbray v. Schuberth, 13 East, 508. Decker v. Thompson, 3 B. and P. 319. Heath v. Rose, 2 N. R. 223. Ramsay v. Reay, 2 N. R. 361. SINCLAIR V. CHARLES PHILLIPE, Monsieur de France. THE Defendant in this case was arrested and holden to bail on the following affidavit: "T. G. Sinclair, of, &c. maketh oath that Charles Phillipe is justly and truly indebted unto him this deponent in the sum of 5891. and upwards for money had and received to and for the use and on the account of the said T. G. S. and for money by the said T. G. S. paid, laid out and expended, lent and advanced in England to and for the use and on the account of the said Charles Phillipe, and for interest due thereon, and upon an account stated in England." The Plain tiff then negatived any tender in bank notes. On a former day Shepherd, Serjt., obtained a rule Nisi for discharging the Defendant on a common appearance-under the acknowledged the debt. The Defendant having been holden to bail for money laid out by the Plaintiff in England and on an account stated in England, disclosed the above circumstances, by affidavit, upon which the Court discharged him upon a common appearance. 38 Geo. |