the party seizing, although the latter do not proceed to condemnation; for by the forfeiture the property is divested out of the owner. So where a ship is bond fide seized as a prize, the owner cannot sustain an action in a court of common law for the seizure, though she be released without any suit being instituted against her, his remedy, if any, being in the court of admiralty.

Trespass cannot be maintained for taking an excessive distress, where the distress is lawful, the whole being one entire act. Neither will trespass lie for an irregular distress, where the irregularity complained of is not in itself an act of trespass', but consists merely in the omission of some of the forms required in conducting the distress, such as not procuring goods to be appraised before they are sold (5).

Neither will it lie against an officer for taking goods or

p Faith v. Pearson, 4 Camp. N. P. C. q Lynne v. Moody, 2 Str. 851. 357. 2 Marsh. 133. r Messing v. Kemble, 2 Camp. N. P. C.

115.

(5) The true construction of the provision in 11 G. 2. c. 19. s. 19. that the party may recover a compensation for the special dainage which he sustains by an irregular distress, "in an action of trespass, or on the case," (see ante, p. 673,) is, that he must bring trespass, if the injury be a trespass; and case, if it be the subject matter of an action on the case. The nature of the irregularity must determine the form of action. Hence for an irregularity consisting in the omission to appraise the goods before they were sold, the action ought to be an action on the case. But where the party remained in possession of the goods in the plaintiff's house beyond the five days, and then removed the goods, it was holden, that trespass was maintainable; Ld. Ellenborough being of opinion, that the removal of the goods was a distinct, subsequent, and substantive act of trespass; and Bayley, J. conceiving, that although the party was warranted in removing the goods, yet the action would lie for remaining in possession beyond the five days, that being a new act of trespass; and that damages might be given for such continuance, although the party was not a trespasser during the five days. Lord Ellenborough observed, that he could not understand the statute as giving an option to maintain trespass, where trespass would not lie by the rules of the common law; but as giving an election to bring trespass, where trespass was the proper remedy, and case where case. Winterbourn v. Morgan, B. R. Trin. T. 1809. MS. 11 East, 395. S. C. See Etherton v. Popplewell, ante, p. 674. If a sheriff continues in possession after the return-day of the writ, that irregularity makes him a trespasser ab initio, but will not support the allegation of a new trespass committed by him after the acts which he justifies under the execution. Aitkenhead v. Blades, 5 Taunt. 198.

cattle by virtue of a replevint, unless a claim of property be made at the time when the officer comes to demand them.

If a person rated to the poor, object to the rate", e. g. because it is a prospective rate, he ought to appeal to the next sessions; 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.

A trespasser knowing that spring guns were set in a wood, although he may be ignorant of the particular spots where they are placed, cannot maintain an action for an injury received in consequence of his accidentally treading on a latent wire communicating with a spring gun, and hereby letting it off.

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 person, 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; 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.

t Per Holt, C. J. in Hallett v. Byrt, Carth. 381.

u Durrant v. Boys, 6 T. R. 580.

x Ilott v. Wilkes, 3 B. & A. 304.

y Hull v. Pickersgill, 1 Brod. & Bing.

282.

z Nias v. Adamson, 3 B. & A. 225.

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.; an exception however, to the declaration for this fault, must be made by special demurrer; because, though formerly in proceedings by bill the Court of King's Bench used to reverse the judgment on writ of error2, or arrest the judgment on notion for declaring with a recital, yet now the court will permit the plaintiff even after verdict to amend the declaration by a right bill, the time of filing whereof the court will not inquire into. In proceedings by original, an objection on the ground of having declared with a recital cannot be sustained even on special demurrer, because the writ being set out in the declaration, the count-part of the declaration will be aided and made good by the recital of the write.

Day. It is not necessary to state the precise day on which the trespass was committed; it will be sufficient to insert any 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 (6), to declare with a continuando, as it was termed, that is, that defendant on such a day committed certain trespasses (specifying them), continuing the said trespasses from such a 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 (7). This was the regular mode of declaring, but it frequently happened, through in

z Brigs v. Sheriff, Cro. Eliz. 507. a Str. 1151. 1162.

b White v. Shaw, 2 Wils. 203.
c White v. Shaw, 2 Wils. 203.

(6) 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.

(7) See Co. Ent. tit. Trespass, pl. 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.

advertence, 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 ruled, 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. So where the declaration charged the defendant with baving taken, on a certain day, ten loads of wheat, ten loads of barley, and ten loads of oats, with a continuando of the said trespass, from the first-mentioned day to a subsequent day: on writ of error, it was assigned for error that the continuando was improper; but the court being of opinion, that several things being alleged which might be done at several times, although the trespass were laid on the first day, yet the continuando should make distribution thereof, that part was done at one day, and part at another, within the time declared of.

And in one case, where the plaintiff, in declaring against defendant for several trespasses, had confined the continuando to two trespasses, one of which ought not to have been laid with a continuando; it was holden, that although the plaintiff by this mode of declaring had precluded the court from aiding the declaration by the usual intendment, yet they would intend that the jury had not given any damages for the continuando (8).

The form of declaring with a continuando has fallen into `d Gillam v. Clayton, 3 Lev. 93. Brook e Butler v. Hedges, 1 Lev. 210. v. Bishopp, Salk. 639. f Fontleroy v. Aylmer, Ld. Raym. 239.

(8) It was admitted that this continuando would have been bad on demurrer. So, at the present day, if a declaration charges the defendant with having committed one entire individual act, e. g. an assault on such a day, and on divers other days and times between that day and the commencement of the suit, the declaration will be bad on special demurrer. English v. Purser, 6 East, 395. recognising Mitchell v. Neal, Cowp. 828.; but in such case, if, instead of the words "made an assault," the word "assaulted" be used, then the declaration will be good; because that may mean that the defendant committed so many different assaults on the different days. Burgess v. Freelove, 2 Bòs. & Pul. 425. explained by Ellenborough, C. J. in English v. Purser.

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 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 (9). 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, and afford just cause for special demurrer.

Although in trespass quare clausum fregit the plaintiff may declare generally without naming the close, yet, in trespass for taking goods, it has been uniformly holden, that 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'.

But in 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 allegation 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

g See English v. Purser, 6 East, 395. ante, n. (8).

h 2 Bl. 1089.
i 5 Rep. 34. b.

k Wyatt v. Essington, Str. 637. Bertie.
v. Pickering, 4 Burr. 2455.

1 See an instance of this kind in
Brooke v. Brooke, 1 Sidf. 184.
m Mallock v. Eastly, 3 Lev. 227.

(9) 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.