a large value, to wit, of the value of five pounds, there then found and being in the faid fhip or veffel, and carried away the same, and converted and difpofed thereof to his the faid Thomas's own use. [Add another Count for feizing two anchors generally], and other wrongs to the faid Jofeph then and there did, against the peace of our lord the king, and to the damage of the laid plaintiff of twenty pounds; and therefore he brings his fuit. V.LAWES.

and

and

YORKSHIRE, to wit. John Clarke complains of Thomas Declaration for Lifter and Thomas Atkinson; for that the faid T. L. and T. A, entering on, &c. and on divers other days and times between that day and the making a noise in the houfe of day of the exhibiting this bill, with force and arms broke and enplaintiff, tered the dwelling-houfe of the faid John, fituate, ftanding, and taking his gods being at, &c. and then and there made a great noife and disturbance away. therein, and greatly difturbed the faid John in the quiet and peaceable enjoyment thereof, and ftaid and continued in the faid dwellinghoufe, making and continuing fuch noife and difturbance therein. for a long fpace of time, to wit, for the fpace of four days then next following, and then and there feized, took, and carried away the goods and chattels of faid plaintiff, to wit, &c. of faid plaintiff, then and there being of the value of fifty pounds, and converted and difpofed thereof to their own ufe. [2d Count, feizing goods, and converting, and other wrongs, &c.] Damages one hundred pounds. Suit, & Pledges, &c,

entered to levy

ift. Not guilty of the premifes: And for further plea in this behalf Plea, that one as to, &c. (actio non); because they fay, that the faid T.A before the defendant, and faid time when the said fuppofed trefpafs in the introductory part of the other in aid, this plea mentioned was committed, to wit, in Trinity term, in the underwrirof fi.ri twenty-fixth year,&c. in the court of our lordthe now king before the facias on a judg. king himself, the said court then and still being at, &c. by the con- ment recovered fideration of the fame court recovered against one W. H. thirty- in affumpfit, five pounds, which in and by the faid court was then and there adjudged to the faid T. A. for his damages which he had fuftained, as well by reafon of the not performing of certain promifes and undertakinga then lately made by faid W. H. to faid T. A. as for his cofts and charges by him about his fuit in that behalf expended, whereof faid W. H. was convicted, as by the record and proceedings thereof ftill remaining in the faid court here more fully appears: And the faid T. L. and 1. A. in fact further fay, that after the aforefaid recovery, and before the faid time when, &c. to wit, on, &c. he the faid T. A. for having execution of and for the damages aforefaid fued and profecuted out of the faid court of our faid lord the king before the king himself, a certain writ of our faid lord the king called a fieri facias, directed to the theriff of the faid county of York, by which faid writ our faid lord the king commanded the faid theriff that he should cause to be levied of the goods and chattels of the faid W. H. in his bailiwick the faid pounds, which in the faid court of our faid lord the king, before the king

himself, were awarded to the faid T. A. for his damages aforefaid; and that the said sheriff should have that money before our lord the king at Westminster on, &c. to render to the faid T. A. for his faid damages, whereof the faid W. H. was convicted, and that the faid sheriff should have there that writ; which faid writ afterwards, and before the faid return thereof, and also before the faid time when, &c. to wit, on, &c. at, &c. was delivered by the faid T. A. to R. L. efquire, who then and from thenceforth until at and after the said time when, &c. was fheriff of the faid county of York to be executed in due form of law; by virtue of which faid writ he faid R. L. efquire, fo being sheriff of the county of Y. as aforefaid, afterwards and before the return of the faid writ, and also before the faid time when, &c. to wit, on, &c. last aforefaid, for having execution of his faid writ made his warrant in writing, fealed with the feal of his office of theriff, and then and there directed the faid warrant to the faid J. L. he the faid J. L. then and there being one of the bailiffs of the said sheriff, and by the faid warrant then and there commanded him faid J. L. as fuch bailiff as aforefaid, that of the goods and chattels of the faid W. H. in his the faid fheriff's bailiwick, he should cause to be made the said pounds fo recovered by the faid T. A. as aforefaid, and in the aforefaid writ mentioned, fo that he the faid fheriff might have that money ready and before our faid lord the king on the faid, &c. in the faid writ mentioned, to render to the faid T. A. for his damages aforefaid, according to the exigency of the faid writ, which faid warrant, to wit, on, &c. laft aforelaid, at, &c. was delivered to the faid J. L. as fuch bailiff of the faid fheriff as aforefaid, to be executed in due form of law: And faid defendants in fact fay, that before and at the faid time when, &c, divers goods and chattels of the faid W. H. liable to be taken in execution by the faid fheriff, under and by virtue of the faid writ, were in the faid dwelling-house in the faid declaration mentioned, and in which, &c.; and that thereupon by virtue of faid warrant to the faid J. L. on the faid warrant as aforefaid, and in order to have execution thereof, the faid J. L. as fuch bailiff as aforefaid, and the faid T. A. in his aid and affistance, and by his command, afterwards and before the return of the faid writ, to wit, at the faid time when, &c. peaceably and quietly entered into the faid dwelling-house in the faid declaration mentioned, and in which, &c. by the outer door thereof, (the fame being then and there open) to feize and take in execution the faid goods and chattels of the faid W. H. fo therein being as aforefaid, under and by virtue of the aforesaid warrant, as it was lawful for them to do for the cause aforesaid, and in fo doing they the faid T. L. and T. A. did neceffarily and unavoidably make a little noife and difturbance in the faid houfe, and did alfo for the purpofe aforefaid neceffarily and unavoidably stay and continue in the faid houfe, making and continuing fuch noife and difturbance for the faid time in the faid declaration in that refpect mentioned, and did during that time, by means of the premises, a little disturb and difquiet the faid John

AND UNDER LEGAL PROCESS. REPLICATION-REJOINDER. 55

in the quiet and peaceable poffeffion thereof, doing as little damage
as they poffibly could on that occafion, which are the fame trefpafs
in the introductory part of this plea mentioned, whereof the faid
John hath above complained against them; and this, &c.; where-
fore, &c. if, &c.
W. FIELDING.

And the faid John, as to the faid plea of the faid defendants by Replication. them laftly above pleaded in bar, as to, &c. precludi non; because protefting that the faid judgment was not recovered, and that the faid writ called a fieri facias was not fued, or profecuted, or delivered for execution, and that the said warrant was not thereupon made and delivered for execution in manner and form as in that plea is above alledged; nevertheless the faid John, for replication in this behalf, fays, that after the faid breaking and entering the faid dwelling-house in the faid declaration mentioned, and whilft they faid defendants ftaid and continued therein as in the faid declaration mentioned, to wit, at the faid several times when, &c. they the faid defendants feized, took, and carried away of the goods and chattels of the faid John of the value of forty thillings, then being therein; and this, &c.; wherefore fince that the faid defendants have above acknowledged the committing of the faid trespasses by them by their faid plea attempted to be justified, he the faid John prays judgment and his damages, by occafion of the committing of thole trefpaffes, to be adjudged to him, &c. G. S. HOLROYD.

And as to the faid plea of the faid plaintiff by him above plead- Rejoinder. ed, by way of reply to the faid plea of the faid defendants by them. laftly above pleaded in bar as to, &c. (actio non); because they say, that they the faid defendants did not, whilft they the faid defendant's staid and continued in the said dwelling-house in the said declaration mentioned, seize, take, and carry away of the goods and chattels of the faid plaintiff the faid bed in the faid declaration mentioned, in manner and form as he the faid plaintiff hath above in his faid replication in that behalf alledged; and of this they put themselves upon the country, &c.

On the first view of the replication in this cafe, I was inclined to think it demurrable, and the cafe of Scott v. Dickfon is strongly in favour of that idea, but then upon adverting to that cafe, it appears that the Court did not folemnly decide it, but adjourned the question, it is not therefore a complete authority, and on more mature confideration on the fub. ject, and referring to the ancient authorities, I am induced to think the replica tion a good one, the object of it is to make the defendant's trespassers ab initio, by the feizure of fomething more than

E 4

merely the property of the plaintiff in the
execution, viz. a bed, the property of
the plaintiff, which if true, fhews that
the defendant's have abufed that licence
which the law gave them, in order to
execute the furi facias, and therefore the
law will intend that they originally enter-
ed the house, not for the purpose of feiz-
ing the goods of the defendant in that
writ, but to commit a trespass upon the
property of plaintiff, and therefore they
are looked upon as trefpaffers from the
beginning.

V. LAWES

HAMP

Declaration for HAMPSHIRE, to wit. Be it remembered, that in Hilary taking and im- term last past, before our faid lord the king at Westminster came pounding plain John Blandy, by A. B. his attorney, and brought into the faid tiff's pigs.

ad Count.

court of our faid lord the king then there his bill against Thomas
Grift, being in the cuftody of, &c. of a plea of trespass, and there
are pledges for the profecution, to wit, John Doe and Richard
Roe, which faid bill follows in thefe words, to wit, Hampshire,
to wit: John Blandy complains of Thomas Grift, being, &c.;
for that he the faid Thomas heretofore, on, &c. at, &c. in, &c.
with force and arms took and drove away the fow and pigs, to
wit, one fow and fourteen pigs of the faid John then and there
found, and being of a large price and value, to wit, of the price
and value of ten pounds, and then and there impounded, and
caufed and procured the fame to be impounded, and to be kept
and detained fo there impounded for a long time, to wit, for the
fpace of twenty-four hours then next following, and until the faid
John was forced and obliged to pay, and did then and there pay
a large fum of money, to wit, the fum of eighteen fhillings and
threepence, to have the fame redeemed and reftored to him: And
alfo for that he the faid Thomas afterwards, to wit, on, &c. at,
&c. with force and arms feized, took, and drove away other the fow
and pigs, to wit, one other the fow and fourteen other the pigs of
the said John there then found, and being of a large price, &c, and
kept and detained the fame for a long time, to wit, for the space
of twelve hours then next following, and other wrongs to the faid
John then and there did, against the peace of our lord the now
king, and to the damage of the faid John of fifty pounds; and
therefore he brings his fuit, &c.
V. LAWES.

Plea; ft, not And now at this day, that is to fay, on Friday next after the guilty, morrow of the Holy Trinity in this fame term, until which day the faid Thomas had leave to imparle to the faid bill, and then and there to answer the fame, &c. as well the faid John, by his attor ney, and the faid Thomas, by C. D. his attorney, do come before our lord the king at Westminster, and the said Thomas defends the wrong and injury, when, &c. and fays, that he is not guilty of the trefpaffes above laid to his charge, in manner and form as the faid John hath above thereof complained against him ; and of this he the faid Thomas puts himself upon the country; and 2d Plea, that the faid John doth the like: And for further plea in this behalf as plaintiff, poffef to the feizing, taking, having, and driving away the faid sow and fed of a clofe, pigs in the firft Count of this declaration mentioned, and imand that the pigs pounding the fame, and caufing and procuring the fame to be eating up the impounded, and to be kept and detained fo impounded for the grafs, doing da- faid space of time in the faid firft Count in the faid declaramage, where- ration mentioned, and until the faid John was forced and obligfore defendants ed to pay, and did pay a large fum of money, to wit, the faid feized them as a fum of money in the faid firft Count of the faid declaration mentioned, to have the fame redeemed and restored to him; and alfo as to the feizing, taking, and driving away the faid fow and pigs in the laft Count of the faid declaration mentioned, and keeping

were therein

diftrefs.

and

and detaining the fame for the faid fpace of time in the faid laft Count of the faid declaration mentioned, and by the faid Thomas above supposed to have been done, he the faid T. by leave of the court here for this purpose first had and obtained, according to the form of,&c. fays,(actio non); because he fays, that the faid fow and pigs in the faid first Count of the faid declaration mentioned, and the faid fow and pigs in the faid laft Count of the said declaration mentioned, are the fame fow and pigs, and not other or different fow and pigs, and that the feizing, taking, having, and driving away the faid fow and pigs in the faid first Count of the faid declaration men tioned, and keeping and detaining the fame in the faid first Count of the faid declaration mentioned, and the faid feizing, taking, and driving away the faid fow and pigs in the laft Count of the faid declaration mentioned, and keeping and detaining the fame in that Count mentioned, are the fame feizing, taking, driving away, keeping, and detaining the faid fow and pigs in the faid declaration mentioned; and that the faid time when, &c. in the said first Count of the faid declaration mentioned, and the said time when, &c. in the faid last Count of, &c. are one and the fame time and not other and different times: And the faid Thomas further fays, that he the faid Thomas, before and at the said time when, &c. was and still is lawfully poffeffed of a certain close called Stonege field, fituate, lying, and being in the faid parifh of, &c. in, &c. and being fo thereof poffeffed, and because the faid fow and pigs in the faid declaration mentioned at the said time when, &c. were in the faid clofe of the faid Thomas called Stonege field, eating up, treading down, and depafturing the barley and grafs of the faid Thomas there then growing and being in the faid clofe of the laid Thomas, doing damage there to the faid Thomas, he the faid Thomas, at the faid time when, &c. feized and took the faid pigs in the faid declaration mentioned, fo being in the faid clofe called Stonege field, and doing damage there to the faid Thomas as aforefaid, for and in the name of a diftrefs for that damage, and gently led and drove away the faid fow and pigs in the said declaration mentioned, as he lawfully might, out of the faid close of him the faid Thomas to a certain common open pound in the parish aforefaid, in the county aforetaid, and there impounded the fame, and caufed and procured the fame to be impounded and be kept and detained fo there impounded as fuch diftrefs for the faid damage for the faid fpace of time in the faid declaration mentioned, and until the faid John did pay a certain large fum of money, to wit, the fum of eighteen fhillings and threepence, in the faid declaration mentioned, as a fatisfaction for the damages fo done to the faid Thomas as aforefaid, and in order to have the faid fow and pigs in the faid declaration mentioned redeemed and restored to the laid John as aforefaid, which are the faid feveral trefpaffes in the introduction to this plea mentioned, and whereof the faid John bath above complained againft the faid Thomas; and this, &c.; wherefore, &c. if, &c,