1809. BARNES against HUNT. Lens Serjt., Dampier, and Caßberd now fhewed caufe against the rule, and obferved that though there were two counts, yet they were reduced in effect to one by the fpecial plea which averred the identity of the refpective trespasses in each. Then taking it as if there were but one count, ftill the plaintiff, having declared for several trefpaffes on divers days within the period flated, was at liberty to give in evidence as many trefpaffes as there were days included. And the defendant does not by his plea confine the generality of the count, by felecting one or more acts of trefpafs, and fetting up a licence to cover thofe particular acts; which would have driven the plaintiff to new align, if he meant to rely on other acts of trefpafs; but he fays, as to the trespasses at the faid feveral days and times, &c. he had the licence of the plaintiff: infisting, therefore, on a licence co-extenfive with the number of trefpaffes which might be proved under the count. So a new assignment would not have carried the matter further, but must have been a mere repetition of the declaration. It would even have amounted to pleading double; because it would have been pleading again what had been answered by the plea. In Cheafeley v. Barnes (a), a single trespass being laid in the count, and that being justified, and issue taken on such justification, the Court held that a new affignment was double, Burrough (Pell Serjt. was with him) in fupport of the rule, contended that though upon the plea of not guilty the plaintiff might prove as many trefpaffes as he pleased within the period laid in his declaration; yet upon the (4) 10 Eafi, 73. plea plea of licence, the proof of which lay upon the defendant, the trefpaffes were agreed upon, and nothing was in iffue except the cause of the juftification, namely, the licence; and if the defendant proved any trefpafs covered by his licence, the iffue must be decided for him. [Lord Ellenborough C. J. The question is, what is the caufe under the replication of de injuriâ fuâ propriâ, abfque tali caufâ; is it one, or feveral, trefpafies; and one, or feveral licences?] In Sayre v. The Earl of Rochford (a) Blackfone J. faid that the words, de injuriâ fuâ proprià, were merely introductory; that the traverfe was contained in the words, abfque tali caufà; and whatever went to difprove that caufe was admiffible evidence, and nothing elfe and Crogate's cafe (b) explains what the caufe is: which is the ground of the juftification. Here the licence is the only cause, and it has always been so confi. dered. Lord ELLENBOROUGH C. J. The caufe is one combined thing arising out of feveral facts; and I will venture to tranflate that word in this cafe into what it really means, and that is, without the matter of excufe alleged. Now what is the matter of excufe alleged? The defendant, in answer to a declaration complaining of feveral trefpatles committed by him on the 1ft of September, and on divers other days and times between that day and the day of exhibiting the bill, fays that at the faid feveral days and times when, &c. he had the licence of the plaintiff; not a licence to commit one or mere trefpaffes, but a licence, as large as the declaration, to commit as many trefpafies as the plaintiff has affigned and is able to prove. What then does the replication import when it alleges that the de (a) 2 Blac. Rep. 1170. (b) 8 Rep. 66, 7. fendant 1809. BARNES against HUNT. 1809. BARNES against HUNT. fendant of his own wrong and without the cause alleged committed the feveral trefpaffes? It denies the defendant's justification to the extent pleaded by him: it denies that he had licence to commit the feveral injuries of which the plaintiff complained and is able to prove within the terms of his declaration. Whatever practice may have prevailed, this fenfe of the pleadings appears to me to be clear. GROSE J. was of the fame opinion. LE BLANC J. The defendant having by his plea ap. plied a licence to all the trefpaffes complained of, the plaintiff, intending to deny a licence co-extenfive with thofe trefpaffes, could only reply as he has done. BAYLEY J. The declaration is general, complaining of trefpafies on divers days within a certain period. The defendant undertakes to meet that general and indefinite charge, and says, in effect, that whatever may be the number of trefpaffes that the plaintiff complains of within that period, he is prepared to fhew as many licences. The replication ftates that the defendant at the said feveral days committed the faid feveral trefpaffes of his own wrong, and without the caufe alleged. does that put in iffue but that the defendant had a licence to cover all thofe trefpaffes. Then, in common fenfe and understanding, we must take it that the cause put in iffue by the replication is, that the defendant had not a licence co-extenfive with the trefpaffes complained of: and a new affignment could have done no more than repeat the fame thing. What Rule discharged. END OF TRINITY TERM. In the Fiftieth Year of the Reign of GEORGE III. 1809. The KING against MORGAN (a). PEMBROKESHIRE.-This was an information filed by The Attorney-General against the defendant for affaulting and obftructing an officer of the excife in the due execution of his office; to which the defendant had fuffered judgment to be figned by default. And on this day, when he came up to receive fentence, the affidavit upon which the Attorney-General had filed the information was offered on the part of the crown to be read in aggravation; but was objected to by Mr. Erskine, for the defendant, as not having been fworn in the caufe. But (a) The note of this cafe, which was decided in this court in Mich. 45 Geo. 3. 1804, was communicated to me lately by Mr. Dealtry; and involves a point of general practice. VOL. XI. Hh The 1809. The KING against MORGAN. The Court, after deliberation, permitted it to be read; the affidavit being entitled, "In the King's Bench," (worn before a Commiffioner of the Court, and being the foundation of a proceeding in the court; and the Court un derstanding that it had been the practice for such affidavits to be read on judgments by default. Friday, One, after de. vifing certain lands to trustees and their heirs, to pay debts in aid of the per fonal eftate, de vised the far plus and all his other lands, &c. to his ift, zd, 3d, and other fons fucceffively for life, with fucceffive remainders to trustees and their heirs to preferve fubfequent eftates during the lives of the several tenants for life, with feveral remainders fuc PHILIP THOMAS WYKHAM against SOPHIA PHILIP Lord Wen:man being feifed in fee of divers ceffively to the first and other fons of the bodies of the teftator's feveral fons in tail male, with like remainders to his daughter S. for life, to trustees, &c and to her first and other fons fucceffively in tail male: with a provifo that each of the teftator's fons, as he came into poffeffion, might from time to time grant or appoint all or any part of the lands where of he should be so seised and poffeffed to trustees, on truft by the rents and profits to pay a jointure to any wife, &c. for the term of each fuch wife's natural life only. There were allo powers by deed to charge the lands with portions for daughters and younger children, and to leafe for 21 years. The eldest fon, having married, by deed, reciting the will and power, conveyed certain of the lands to truffees and their bears, on truft by the rents and profits to raise and pay a jointure to his wife during ber natural life only; and charged the lands with portions for younger children, if any; which deed alfo contained a covenant for quiet enjoyment during the wife's life: Held that by fuch deed the trustees took a fee. |