WRONG ACTION. to the faid D., fafely to keep the fame, to the use of the Plaintiff, by virtue of which delivery, the faid D. those cattle then and there took, which taking is the fame taking, whereof the Plaintiff now complains; in which cafe the Plaintiff should have an action of (a) detinue, of those cattle against the faid D. and not an action by the faid writ of replevin; and this he is ready to verify; Wherefore he prays judgment of the writ aforefaid, that the fame may abate, &c.

(a) Trover is the action

fubftitute for detinue.

REPLICATION. And the Plaintiff fays, that by reafon of any thing above alleged, his writ aforefaid ought not to abate, because he says, that the faid D. at the time of the taking aforementioned, took the cattle aforefaid of his own wrong, in form, in which the Plaintiff above complains against him; without this, that the faid Plaintiff delivered the cattle aforefaid to the faid D. in form as he hath above alleged; and this he is ready to verify; Wherefore he prays judgment, if his writ aforefaid, for the reafon before alleged, ought to be quafhed, &c.

REJOINDER. And the faid D. fays, that the said Plaintiff delivered the cattle aforefaid, to him the faid D. in the form in which the faid D. hath above in pleading alleged; and of this puts himself upon the country.

Raft. 569. 6 Inf. Cl. 518.

NOTE.

It is faid in 5 Com. Dig. Plead. 3 K. 11, but no authority quoted, that the Defendant may plead in abatement, a bailment to him, for which replevin does not lie, but detinue. For it feems there fhould be an unlawful taking. Hale's F. N B. 169. 1 Efp. 350. Quere therefore, if now it would be a good plea

to fay, that the action ought to be trefpafs on the cafe, in fuch cases. But in S. J. C. Suffolk, Feb. 1801, Dix et al. v. Manning adminiftrator, replevin was brought for goods pur. chafed by confignee on the voyage for Plaintiff, though the confignee died on the voyage, and it was held well.

NO CAUSE OF AC-
TION ACCRUED.

Plea. A&tion
brought before day
of payment.

(a) If the action be on writing un

der feal, oyer of it

must be prayed.

NO CAUSE OF ACTION ACCRUED

PLEA. And the faid D. comes and defends, &c. when, &c. and prays (a) oyer of the writ aforefaid, of the Plaintiff, and it is read to him in thefe words: "Effex, f. &c." (recite the whole writ) which being read and heard, the said

D. fays

TION ACCRULE.

D. fays that the Plaintiff, before the faid, &c. day of, &c. in No CAUSE OF ACthe declaration aforefaid abovementioned, purchased his faid writ against the Plaintiff, for the debt aforefaid; and this he is ready to verify: Wherefore he prays judgment of faid writ, that it may be quafhed, &c. 3 Inf. Cl. 56.

PLEA.

Trefpaís.

And the faid D. comes, &c. (as before ;) which Plea. being read and heard, the faid D. prays judgment of the brought writ aforefaid, because he fays, that the Plaintiff, before the time of the trefpafs in faid declaration mentioned, to wit, on, &c. purchased his faid writ of trespass against him; and this he is ready to verify: Wherefore, &c. (as before.)

3 Inf. Cl. 62.

Action before

(a) Not in original,

PLEA. And the faid D. comes, &c. when, &c. and prays Plea. Ejectment judgment of the (a) writ and declaration aforefaid, becaufe before the demife. he fays, that by the declaration aforefaid, it manifeftly ap pears, that the Plaintiff hath declared against him, the said D. of the trefpafs and ejectment aforefaid, by virtue of a demise to him made by the faid leffor, on, &c. which demise was made after the day of the purchase of writ of the Plaintiff, wherefore it manifeftly appears, that no caufe of action for the above fuppofed trefpafs and ejectment, had or would have accrued to the faid Plaintiff, against the faid D. at the time of the purchase of faid writ, and this he is ready to verify: Wherefore he prays judgment of (a) faid writ and declaration, &c. as before. 3 Inf. Cl. 109.

DEFECT OF FORM.

PLEA. And the faid D. comes, and (a) defends, &c. when, c. and prays judginent of the writ aforefaid, because he fays that the faid M. at the time of the death of the faid A. B. was covert of faid C. who is yet her husband; Wherefore the right of the tenements aforesaid, if any, reverted to the faid C. and M. in right of faid M.; in which cafe the faid C. and M. by their writ aforefaid, ought to count that the tenements aforesaid, with the appurtenances, reverted to them, the faid C. and M. in right of faid M.; and this he is ready to verify: Wherefore he prays judgment of faid writ, that it may be quafhed, &c. 3 Inf. Cl. 120.

PLEA. And () the faid D. comes and defends, &c. when &c. and fays, that the Plaintiff's writ and declaration aforefaid, are bad and infufficient, because he hath not therein alleged, as by law he ought to have done, any certain time when the faid D. made his promife therein alleged to be made, or any certain confideration or breach thereof; and all this he is ready to verify: Wherefore this writ ought to abate, and the fäid D. prays judgment accordingly, and for his cofts.

Plea. No venue mentioned.

(d) Cause of action, (if fo.)

NOTE.

In April Term, Effex, 1783, a writ was abated on motion for this

defect; but in Sept. Term, 1789, this objection was overruled.

PLEA. And (c) the faid D. comes, &c. when, &c. and fays, that the Plaintiff's declaration is bad and infufficient, () Quere of this becaufe he fays that the Plaintiff hath not therein fufficiently plea. See notes. fhewn forth the place where (d) the fuppofed promife of the faid D. arofe and was made, but has only faid that the said D. at a place called C. to wit, in F. aforefaid, promised, which is uncertain and infufficient, the word F. not being before mentioned in the faid declaration; and all this he is ready to verify: Wherefore he prays judgment of said writ, &c.

WANT OF VENUE,

Plea.

No venue.

PLEA.

WANT OF VENUE.

And (e) the faid D. comes and defends, &c. when, () Quere of this &c. and fays, that the Plaintiff's writ and declaration ought

Plea. See notes

ou the count.

to

to abate, because he fays that the Plaintiff hath not in faid WANT OF VENUE. declaration alleged or fhewn forth any time when, or any place where the faid D. was requested to pay the goods therein mentioned, which the Plaintiff ought to have done ; and this he is ready to verify: Wherefore he prays judgment of the writ and declaration aforefaid, that the fame may be quafhed, &c. Writ abated, 1752,

NOTE.

Want of venue is now univerfally The general rule refpecting laying venue in DECLARAȚIONS, is, that every material and traverfable fact should be alleged with a venue. s Com. Dig. Plead. C. 20. But the omiffion will be bad only on fpecial demurrer. But it is faid by Eyre, C. J. in delivering the opinion of the Court in Ilderton v. Ilderton, 2 Hen. Bl. 160, 161, that the old law respecting venue is effentially changed, and will be found to lie in a narrow compaís. And that the diftinction between laying no venue at all in PLEAS, and laying the fame as in the declaration (which is now

In Ilderton v. Ilderton, it was decided that no venue need be laid in

So in a plea of abatement to the períon, no venue need be alleg

I Saund. 8. Note 2. Williams Edition.

(a) Recognized and approved. 7 T. R. 243.

ftated as caufe of demurrer.
obligatory) will not be found to be See
a very substantial one; and is in
fact a diftinction without a differ-
ence (4); that REPLICATIONS ftand
on their own ground in that refpect;
they have reference to and maintain
the declaration, and cannot be entire-
ly feparated from it in the way in
which a plea of bar may. They
may therefore have the affistance of
the venue laid in the declaration.
Quere therefore, if the laying of ve
nue in PLEAS and REPLICATIONS be
more than mere form, and wheth-
er now even objectionable as fuch,

a replication to a plea of "ne un
ques accouple."

ed. Neale v. De Garay.
243.

NOTES ON PLEAS TO THE COUNT.

In pleading to the count for defects of fubftance or form, the univerfal rule is now by demurrer, not by abatement. For fuch defects as destroy the cause of action, the plea is generally in bar, or taken advantage of on the general iffue; or if the error

It was the common practice in this Commonwealth,

7 T. R.

NOTES.

appear on the record, moved What pleas good.
in arreft of judgment. Que-
ries therefore have been sub-
joined to the pleas in abate-
ment to the Count, for de-
fects of form or substance;
and the object of the prefent
annotation is to ftate the
ground of them.

till within a few years, to
take all objections to the writ

and