money had and received, to bring a special action for the breach of duty, there could have been no set-off, because it would have been an action for unliquidated damages. But, by bringing assumpsit for money had and received, he lets in the consequences of that action, one of which is the right of set-off. The expressions of the court, in Buchanan v. Findlay, must be taken with reference to the subject-matter. In that case, the bills remained in the hands of the defendants, unapplied to the purpose for which they had been sent, when the parties who had sent them countermanded the order for their being discounted, and required to have them returned, which was not done. It was not a case of mutual credit, because the transaction, on the part of the defendants, was against good faith. The assig nees, in that case, did not affirm any contract by bringing an action for money had and received, which merely stood in the place of an action of trover." Brewer v. Sparrow, 7 B. & C. 310, and Burn v. Morris, 4 Tyrwh. 486, are also two cases ejusdem generis, in one of which the principle laid down in Smith v. Hodson was held applicable, while the other was considered distinguishable. In Brewer v. Sparrow, 7 B. & C. 310, the assignees of a bankrupt brought trover for chattels of the bankrupt, of which the defendant had taken possession. The chattels were part of the bankrupt's stock in trade, which, on the bankrupt's absconding, the defendant had taken possession of, and carried on the trade. He had, however, rendered to the assignees a fair account, and paid over the balance. "The defendant," said Bayley, J., "in the first instance, was a wrongdoer, and the plaintiffs might have treated him as such. But it was competent to them, in their character of assignees, either to treat him as a wrongdoer and disaffirm his acts, or to affirm his acts, and treat him as their agent; and if they have once affirmed his acts, and treated him as their agent, they cannot afterwards treat him as a wrongdoer, nor can they affirm his acts in part and avoid them as to the rest. By accepting and retaining the balance without objection, they affirmed his acts, and recognised him as their agent; and having so done, they are not at liberty to treat him as a wrongdoer." Judgment for defendant. The above case was relied on as in point, but held distinguishable, in Burn v. Morris, 4 Tyrwh. 486. That was an action of trover, brought for a 201. Bank note, lost by a clerk of the plaintiff, found by a woman in the street, taken, at her request, by the defendant's son to the Bank, and there changed by his father's directions, and the proceeds, minus two sovereigns, given back to the woman. The woman was afterwards taken before the Lord Mayor, and seven sovereigns, part of the proceeds, found on her, and given back to the plaintiff. After a verdict for 137., it was moved, in pursuance of leave, to enter a nonsuit, upon the ground that the receipt of the 77. was an affirmance of the whole transaction. Brewer v. Sparrow was cited; but Lord Lyndhurst said, “In that case the whole proceeds of the sale were taken that is an adoption of the act. Here the receipt of the 77. does not ratify the act of the parties, but only goes in diminution of damages." : DOVASTON v. PAYNE. 35 GEO. 3, C. P. [REPORTED 2 HEN. BL. 527.] The property of a highway is in the owner of the soil, subject to an easement for the benefit of the public. Therefore a plea in bar of an avowry for taking cattle damage feasant, that the cattle escaped from a public highway into the locus in quo, through the defect of fences, must show that they were passing on the highway when they escaped; it is not sufficient to state that being in the highway they escaped. REPLEVIN for taking the cattle of the plaintiff. Avowry, that the defendant was seised in fee of the locus in quo, and took the cattle damage feasant. Plea, that the locus in quo 66 lay contiguous and next adjoining to a certain common and public king's highway, and that the defendant and all other owners, tenants, and occupiers of the said place in which, &c., with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and the said defendant still of right ought to repair and amend the hedges and fences between the said place in which, &c., and the said highway, when and so often as need or occasion hath been or required, or shall or may be or require to prevent cattle being in the said highway from erring and escaping thereout into the said place in which, &c., through the defects and defaults of the said hedges and fences, and doing damage there. And because the said hedges and fences between the said place in which, &c., and the said highway, before and at the time when, &c., were ruinous, broken down, prostrated, and in great decay for want of needful and necessary repairing and amending thereof, the said cattle in the said declaration mentioned just before the said time when, &c., being in the said highway, erred and escaped thereout, into the said place in which, &c., through the defects and defaults, &c. &c." To this plea there was a special demurrer, For that it is not shown in or by the said plea, that the said cattle before the said time when, &c., when they escaped out of the said highway into the said place in which, &c., were passing through and along the said highway, nor that they had any right to be there at all, &c. In support of the demurrer, Williams, Serjt., argued as follows: It is a rule in pleading, that if the defendant admits the fact complained of, he must show some good reason for or justification of it. If the cattle in this case had escaped from an adjoining close through the default of the plaintiff's fences, the defendant must have shown that he had an interest in that close, or a licence from the owner to put his cattle there; Dyer, 365 a, Sir F. Leke's case, recognised Hob. 104, Digby v. Fitzherbert; for a man is bound to repair against those who have right, but not against those who have no right. So if cattle escape from a highway, the party justifying a trespass must show they were lawfully using the highway, that is, were passing and repassing on it, which is material and traversable. It is not sufficient that they were simply in it, the being there is equivocal and not traversable. The owner of the soil may have trespass, if the cattle do anything but merely pass and repass, Bro. Abr. Tresp. pl. 321, and according to this principle the entries state, in pleas of this kind, that the cattle were super viam prædictam transeuntes, Thomp. Entr. 296, 297; and in "driven along the e's highway." Heywood, Sergt. contrà.-The same strictness is not required in a plea in bar to an avowry in replevin, as in a justification in trespass. Here the plaintiff pleads the plea, and it is sufficient for him to show that his cattle were wrongfully taken. The passing on the highway is as uncertain as the being there, and as little traversable. But the material issues on the record would be, whether the fences were out of repair, and whether, the defendant was bound to repair them. If he were, it is immaterial whether the cattle were passing on the highway or not. In a plea in bar, certainty to a common intent is sufficient. It may therefore be intended that the cattle were lawfully in the highway. Lord C. J. Eyre.-I agree with my brother Williams as to the general law that the party who would take advantage of fences being out of repair, as an excuse for his cattle escaping from a way into the land of another, must show that he was lawfully using the easement when the cattle so escaped. This therefore reduces the case to a single point, namely, Whether it does not appear on the plea, to a common intent, that the cattle were on the highway using it in such a manner as the owner had a right to do, from the words "being in the said highway?" This is a different case from cattle escaping from a close, where it is necessary to show that the owner had a right to put them there, because a highway being for the use of the public, cattle may be in the highway of common right; I doubt, therefore, whether it requires a more particular statement. It would certainly have been more formal, to have said that the cattle were passing and repassing; and if the evidence had proved that they were grazing on the way, though the issue would have been literally, it would not have been substantially proved. But I doubt whether the being in the highway might not have been traversed; and if the being in the highway can be construed to be certain to a common intent, the plea may be supported, notwithstanding there is a special demurrer, for a special demurrer does not reach a mere literal expression. The precedents indeed seem to make it necessary to state that the cattle were passing and repassing, but they are but few; yet upon the whole, I rather think the objection a good one, because those forms of pleading are as cited by my brother Williams. Buller, J.—This is so plain a case, that it is difficult to make it a ground of argument. But my brother Heywood says, there is a difference between trespass and replevin in the rules of pleading. In some cases there is certainly a material difference in the pleading in the two actions, though in others they are the same. One of the cases in which they differ is, that if trespass be brought for taking cattle which were distrained damage feasant, it is sufficient for the defendant to say that he was possessed of the close, See the note to Meller v. Spateman, 1 Wms. Saund. 346 e, and to Poole v. Longueville, 2 d. and the cattle were doing damage: but in replevin the avowant must deduce a title to the close. Wherever there is a difference, it is in favour of trespass and against replevin: for in trespass an excuse in a plea is sufficient, but in an avowry a title must be shown*. This brings me to the question, Whether the plea on this record be good to a common intent? Now I think that the doctrine of certainty to a common intent will not support it. Certainty in pleading has been stated by Lord Coke (a) to be of three Wms.Saund.284 sorts, viz., certainty to a common intent, to a certain intent (a) Co.Litt.303. in general, and to a certain intent in every particular. I remember to have heard Mr. Justice Aston treat these distinctions as a jargon of words, without meaning. They have, however, long been made, and ought not altogether to be departed from. Concerning the last two kinds of certainty, it is not necessary to say anything at present. But it should be remembered, that the certain intent in every particular applies only to the case of estoppels (b). (b) Co.Litt. ibid. By a common intent I understand, that when words are used which will bear a natural sense, and also an artificial one, or one to be made out by argument or inference, the natural sense shall prevail: it is simply a rule of construction and not of addition: common intent cannot add to a sentence words which are omitted. There is also another rule in pleading, which is, that if the meaning of words be equivocal, they shall be taken most strongly against the party pleading them. There can be no doubt that the passing and repassing on the highway was traversable; for the question, Whether the plaintiff was a trespasser or not? depends on the fact whether he was passing and repassing, and using the road as a highway, or whether his cattle were in the road as trespassers; and that which is the gist of the defence must necessarily be traversable. A most material point, therefore, is omitted, and I think the plea would be bad on a general demurrer. But here there is a special demurrer, and as the words are equivocal they are informal. Heath, J. The law is, as my brother Williams stated, that if cattle of one man escape into the land of another, it is no excuse that the fences were out of repair, if they were trespassers in the place from whence they came. If it be a close, the owner of the cattle must show an interest or a right to put them there. If it be a way, he must show that |