[185] JONES vs. JONES. Of ecclesiastical jurisdiction by st. 23 H. 8. c. 9. [187] Tro. and conversion. Hutt. R. 44. Jones 240. In trover, a justification specially pleaded, which does not confess the conversion, is bad on special demurrer. AGAR brought an action of trover and conversion, 10. Mesme Ca. against Lisle, of a cow, and laid it apud castrum Ebor. 1 Brnl. 5. 1 Ro. The defendant pleads, that the bishop of Durham hath a yearly fair, primo Junii, at Darneton, in com. Durham, and toll there, and tells what; and for non-payment had used to distrain, &c.; and shews, that the plaintiff had bought sheep of one, and cows of another, and that this whole toll came to so much; and that the defendant, as servant, &c. had demanded it, and upon a refusal, took the cow and detained her for the toll; which is the same conversion, absque hoc, that he was guilty apud castrum Ebor. or elsewhere, within the county of York, or at any time before the said first day of June, &c. 1 Cr. 157. 3 Cr. 434, 455, 495. 1 Cro.262. 2 Cr. Whereupon the plaintiff demurred in law, and showed for cause, that there was no conversion confessed, and therefore no answer to the action; but he should have pleaded not guilty. And being now moved this term, 245. 10 Co. 57. Mich. 15 Jac., Harris said, that it was the common expeSyd. 127. rience, that the detainment of goods from an owner, after request, is allowed for a sufficient evidence to maintain a conversion. Whereunto I answered, that though legally it were not a conversion, yet, in that case, it was reasonable to allow it for an evidence to prove a conversion. Because, if you have goods of mine lawfully, by finding or bailment, yet when I require them of you, you can no longer lawfully hold them; and therefore when you still detain them from me, it argues that you claim them as your own, and so use them. 2 Cro. 245. But in this case it is otherwise; for here he hath not only a lawful cause to take the cow, but as lawful cause to detain it, against demand, as a distress, till the [187 a] toll paid; and yet he denies not the plaintiff's property, nor doth any thing against it; and so it was adjudged for the plaintiff in this case. (1) (1) It has been said that in trover, there is no plea but the general issue and a special plea of a release; 2 Esp. N. P. 592; but other special pleas have been allowed. In Salk. 654, (in which the doctrine of the case in the text is recognised,) Holt C. J. says he never knew but one special plea good in trover, which was in the case of Kenicot v. Bogan, Yelv. 198. This was trover for two pipes of wine. The defendant pleaded that so much was due to the king, out of every twenty pipes of wine imported, for prisage, and that he took the two pipes and converted and disposed of them to the use of the king; and on demurrer this plea was held good. In 1 Shower 146, Lechmore v. Toplady, the defendant, in trover, pleaded a former judgment in trespass for taking the same goods, and on demurrer the plea was adjudged good. So in Cro. Jac. 73, Brown v. Wootton, a judgment recovered in trover was pleaded in bar to a second action against a different person for the same cause, and adjudged good. The statute of limitations is also a good special plea. 1 Chitty 490; but the bankruptcy of the plaintiff ought not to be pleaded. 7 T. R. 392, Webb v. Fox. Noy. 46. FREESTONE vs. Bowyer. Battery. In trespass for a battery and wounding, a justification of the battery, without any answer to the wounding, is a discontinuance, but cured by verdict. Co. L. 282. b. discontinu FREESTONE and his wife brought an action of battery 2 Cr. 304, 353. and wounding of the wife, in com. Salop, against Bowyer, who pleaded a justification by warrant of the sheriff of Worc. et molliter imposuit manus, &c. absque hoc quod est Verdicts help culpabilis in com. Salop; but answered nothing to the ance. wounding. And verdict was given for the defendant, and judgment; because it was but a discontinuance upon the point of wounding, which is holpen after verdict. 2 Cro. 1 Syd. 96. 353. (1) (1) See 1 Saund. 228, n. (1.) acc. [187 b] RIVES US. MOXHAM. If no place be laid for the fact in issue, the taking of the visne from the place of the action will be presumed to be right. Secus, if the fact had been laid in another place. (1) (1) Vide ante p. 5, Crow v. Edwards, and note (1.) [188] Covenant. Judgment against an executor in cove nant broken by be de bonis tes Mo. 70. 1 Ro. COLLINS VS. THROUGHGOOD. In covenant against an executor for a breach in his own time, the judgment must be de bonis testatoris. COLLINS against Throughgood, executor. An action of covenant was brought against the executor, and the himself, shall breach was assigned for default of reparation committed tatoris. 1 Ro.93. in the time of the executor, and damages were assessed. 932. Hutton f. And it was moved by Towse, whether the judgment should R. 24. Cr. Jac. be de bonis testatoris or propriis. And upon view of pre647. 2 Cro. 191, cedents it was judged de bonis testatoris. For note, that 112. Dyer 324. it is the testator's covenant, which binds the executor as representing him, aud therefore he must be sued by that name. (1) 35. Brownl. 1. 672. 1 Saund. Post. 283. (1) See post. 283, Castilion v. Exec. of Smith. ANON. DECEIT. Trial of ancient demesne by Doomsday Book. ANON. LEGACY. Jurisdiction of the Court of Audience. HARRIS vs. Cotton. Tythes. HARBIN & ux. vs. GREEN. A custom to have suit to a mill for all grain spent and sold is unreasonable and void. An entire custom bad in part is totally void. [189] Custom of suit sonable. Brownl. 1 R. 18. Moor, f. 887. Ro. 2d. Ab. 100. A plaintiff cannot have judgment upon a general verdict and entire damages, if in his declaration, he assigns the breach as well before as after his title commenced. HARBIN and his wife brought an action upon the case against Maurice Green, reciting, that the bishop of Sarum to a mill unreawas seised in fee, in right of his bishopric of Sarum, of and in four mills in the city; and there is a custom there, that all the inhabitants resident within the city, in an ancient house holden of the bishop, &c. à tempore, &c. all their grain whatsoever by such inhabitants in their said messuages spent or sold at the said mills, and not elsewhere, without license, &c. have used to grind and pay for the grinding, and in consideration thereof the said bishops, &c. à tempore, &c. have used to keep servants, &c. to grind, and loaders to carry, &c. and so conveys the mills to them by demise, made anno 11 Jac. And that the defendant dwelling in an ancient house, &c. Dec. 12 Jac. et diversis diebus et vicibus inter eundem diem et quartum diem Aprilis, anno 12 Jac. diversa grana tam sua grana in mesuagio præd. expensa quam vendilioni exposita ad alia molend. et non ad præd. molendinum, &c. molavit, ad dampnum, &c. And upon issue not guilty, &c. it was found for the plaintiff, and judgment was notwithstanding given against the plaintiff, quod nihil capiat, for two causes. First, that the custom itself was unreasonable; (1) for the reason and use of such a custom is, that the corn that a man doth grind, he should grind there, and not elsewhere; and therefore both sides are bound by the custom, the one to bring his corn to grind there, and not elsewhere; the other to maintain his mills and all provisions for grinding and mutual actions will lie on both sides, if there be a default. And it was holden, that this custom would as well hold (1) See 2 Saund. 117 b. Coryton v. Lythebye and 117 e. n. (3.) S. P. This doctrine is also recognized by Willes C. J. in Drake v. Wiglesworth Willes R. 657. [189 a] for corn brought, as for corn growing within the town, so it were spent within their houses, being ground both for the consideration aforesaid. And the rather, because the houses are holden of the bishop; though in a secta molendini, by the tenure, it would not be so. But the fault here is, that by this custom, if a man buy corn, he cannot sell it again in corn in his house, for he must first grind it at these mills. And he hath asigned the breach as well in corn sold as spent. And I am of opinion, that if he had assigned it only in corn spent, yet it would not. have served, because the custom itself, being entire, is totally void, though some part of it alone might be good in law. 2 Cro. 207. Yelv. 226. Another fault was, that he assigned the breach anno. 12, et diversis vicibus between that anno 2. which was long before the plaintiffs had interest; and the damages was given entire, upon not guilty to the whole, which damages shall be understood to be given, not according to the law, but according to the allegation of the plaintiff, who layeth his damage for all; and the verdict of laymen, who find him guilty de præmissis to the damage of, &c. and makes no difference that the special breach is right, anno 12. and the rest cometh by diversus diebus, like a trespass with a continuando, for which damage is also given. (2) Note, there was no mention that the action was brought by the huband and wife both; being only to recover damage, and not for the term. (2) Vide post 245, Bickford v. Bickford. As to the manner of declaring in cases of the above description, in modern times, see 1 Saund. 113. a. n. (1.) Norff. GOGLE'S CASE. Where the visne does no appear, upon the record, to be wrong, judgment will not be arrested. A private way must be pleaded a quo termino ad quem. GOGLE brought an action of trespass, quare clausum fregit, &c. at Barningham. The defendant pleaded, that |