228 PLEA OF NOT POSSESSED IN TRESPASS. If an action of trespass be brought by a husband and wife for an assault committed on the wife, the plea of not guilty will not put in issue the marriage (g); but it may be a question of some doubt, whether, if trespass be brought against husband and wife for an assault committed by her, the man may not dispute the marriage under the general issue. § 231. Having thus discussed the general effect of pleading not guilty in actions of trespass, it may next be observed, that in trespass de bonis asportatis, a plea denying that the goods are the plaintiff's, puts in issue not only the possession of the goods, but the property in them. This point was decided in Harrison v. Dixon (h); but the pleader, who relies on this case as an authority, must bear in mind that the Court of Queen's Bench have held in Whittington v. Boxall (i), that, in trespass quare clausum fregit, such a plea puts in issue only the possession, and therefore, if the defendant not only contests the possession of the plaintiff in fact, but also relies on title, in case actual possession is proved by the plaintiff, he cannot rest his defence on this plea, but must plead in confession and avoidance. The distinction between these two cases appears to be, that the plaintiff's title to goods can be disputed only by denying his possession; whereas, if the question relate to the title to land, a plea of liberum tenementum may be put on the record (j). Perhaps, however, Whittington v. Boxall is not law; for not only is it directly opposed to an older case in the Exchequer (k), but in Harrison v. Dixon, Mr. Baron Parke intimated a doubt as to its correctness. His reasoning, as reported, is as follows:-"Before the new rules, the general issue, not guilty, put in issue the plaintiff's title, because, under that plea, the defendant might dispute both the fact of the trespass, and also the 9 D. & R. 657; 6 B. & C. 611, S. C.; Beardmore v. Carrington, Burdett v. Abbot, 14 East, 1. Wils. 244; (g) Dickinson v. Davis, 1 Stra. 480. See Chantler v. Lindsey, 4 Dowl. & L. 339. (h) 12 M. & W. 142; 1 Dowl. & L. 454, S. C. This case appears to overrule Carter v. Johnson, 2 M. & Rob. 263, per Lord Abinger, and Ashmore v. Hardy, 7 C. & P. 501, 505, 506, per Patteson, J. (2) 5 Q. B. 139; 1 D. & Mer. 184, S. C. See also Heath v. Milward, 2 Bing. N. C. 98; 2 Scott, 160, S. C.; Brown v. Dawson, 12 A. & E. 624. (j) 12 M. & W. 145, per Parke, B. (k) Purnell v. Young, 3 M. & W. 288, 296; 6 Dowl. 367, S. C. DESCRIPTION OF LOCUS IN QUo. 229 fact that it was committed on the plaintiff's close. Now the plea, denying the close to be the plaintiff's, is a denial of his title to the same extent, as he would have been obliged to prove it under the general issue" (l). $232. The new rules further provide, that, "in actions of trespass quare clausum fregit, the close or place in which, &c., must be designated by name or abuttals, or other description; in failure whereof the defendant may demur specially" (m). The object of this rule was to avoid the ambiguity that would arise if the name of the parish alone were given, and thus to save the defendant from the necessity of pleading liberum tenementum (n), and the plaintiff from the necessity of a new assignment (o). A description by two abuttals only will be sufficient to satisfy the rule in the first instance (p), though if the words "abutting towards" are used instead of abutting upon," the declaration will be demurrable (q); and in all cases a judge, on application, will order a better description to be given, if the defendant can show that any real ambiguity exists, and that he cannot distinctly see what close is indicated by the declaration (r). This rule is here noticed for the purpose of observing, that, if the defendant, instead of objecting to the description of the close, sets up a title in himself to the locus in quo, or otherwise pleads a justification, he will be considered as knowing what close is meant by the plaintiff, and cannot afterwards deny the correctness of the designation; and, consequently, the plaintiff will succeed, on proof of a trespass committed in a close in his possession, to which the description applies with tolerable accuracy (s), though the defendant has another close, which answers to the same description (t). It matters not in the application of (7) 12 M. & W. 145, 146. (m) Reg. Gen. H. T. 4 Will. 4, Plead. in Par. Act., V. Trespass, 5 B. & Ad. ix. (n) This is a good plea, though the close be particularly described in the declaration. Harvey v. Brydges, 14 M. & W. 437. (0) North v. Ingamells, 9 M. & W. 251, 252, per Parke and Alderson, Bs. (p) North v. Ingamells, 9 M. & W.249. (9) Lempriere v. Humphrey, 3 A. & E. 181. (r) 9 M. & W. 252, per Alderson, B. (s) See Webber v. Richards, 1 Q. B. 439. (t) Lempriere v. Humphrey, 3 A. & E. 181; Cocker v. Crompton, 1 B. & C. 489; 2 D. & R. 719, S. C.; Cooke v. Jackson, 9 D. & R. 495. See Ellison v. Isles, 11 A. & E. 665; 3 P. & D. 391, S. C.; and Webber v. Sparkes, 10 M. & W. 485. 230 GENERAL ISSUE BY STATUTE. this rule, whether the spot be designated by name or by abuttals (t). If, indeed, the plaintiff and defendant have separate parts of one entire close, and the former brings an action against the latter for trespassing on his close, describing it either by name or by metes and bounds, the defendant, under a plea that the close is his soil and freehold, is not bound to prove a title to the whole close, but he will succeed if he establishes a title to that part of the close on which all the trespass has been committed. "By this plea," said Mr. Baron Alderson, in pronouncing the judgment of the Court in Smith v. Royston, "the defendant undertakes to prove two propositions: first, that some part of the described close belongs to him; and secondly, that it is on this part of the close that all the acts complained of have been done. If he does this, he is entitled to the verdict; if not, the plaintiff must succeed" (u). § 233. We have been hitherto discussing the operation of the new rules in limiting and defining the amount of evidence admissible under the general issue in ordinary cases; but it must be carefully borne in mind that that numerous class of cases, in which the defendant is expressly empowered by statute to plead the general issue, and to give special matter in evidence under it, is not affected by these rules (v), further than this, that the party who intends so to plead must now " insert in the margin of the plea the words by statute,' otherwise such plea shall be taken not to have been pleaded by virtue of any act of parliament; and such memorandum shall be inserted in the margin of the issue, and of the Nisi Prius record" (w). This last salutary rule, which effectually (t) Id.; Smith v. Royston, 8 M. & W. 386, per Alderson, B. (u) 8 M. & W. 381, 387. See also Richards v. Peake, 2 B. & C. 918; 4 D. & R. 572, S. C.; Bassett v. Mitchell, 2 B. & Ad. 99; Tapley v. Wainwright, 5 B. & A d. 395; 2 N. & M. 697, S. C. (v) The Law Amendment Act, 3 & 4 Will. 4, c. 42, which empowered the judges to make the new rules, expressly provided, in § 1, "That no such rule or order shall have the effect of depriving any person of the power of pleading the general issue, and giving the special matter in evidence, in any case wherein he is now or hereafter shall be entitled to do so by virtue of any act of parliament now or hereafter to be in force." The act of 1 & 2 Vict., c. 100, which continues, under certain limitations, the powers given to the judges by the former act, contains a precisely similar proviso at the end of § 1, excepting only that the word "Regulation" is inserted after the word "order." (w) Reg. Gen. T. T. 1 Vict., 4 M. & W. 3. WHAT IS ACTING IN PURSUANCE OT A STATUTE. 231 protects the plaintiff from being taken by surprise at the trial, had not been long in operation before an attempt was made to set aside its authority, on the ground that the judges had no power to make it; but the Court of Common Pleas very properly determined, that, even assuming that the Law. Amendment Act gave no direct or implied authority to make such a rule, (a negative proposition which they considered it would be difficult to maintain), still the rule might be supported as founded upon a jurisdiction, necessarily inherent in all courts, to make rules for the regulation of their practice (x). When the defendant has pleaded not guilty by statute, his attorney must take care that the words "by statute are properly inserted in the margin of the issue and of the Nisi Prius record; for otherwise the judge will not allow him to enter into the general defence, unless he can distinctly show, and this may be a matter of some difficulty, that these words were duly introduced in the margin of the copy of the plea, which was sent to the plaintiff (y). If the plaintiff cannot discover the Act on which the defendant relies, the Court, on an affidavit of that fact, will direct the defendant to furnish him with the requisite information, on pain of having the words "by statute" struck out of the plea (z). § 234. It is extremely difficult to lay down as an abstract proposition of law, what shall amount to an acting in pursuance of a statute, so as to entitle a defendant to give special matter in evidence under the general issue, to rely on the want of notice of action, or on the fact that he has tendered amends, or otherwise to claim any particular protection which the act of parliament affords; but, perhaps, thus much may be stated with safety, that if a party believes, with some colour of reason (a), and bonâ fide, that he is acting in due execution of the authority vested in him by the legislature, he is entitled to protection, although he may proceed (z) Bartholomew v. Carter, 3 M. & Gr. 125, 131; 3 Scott, N. R. 529; 9 Dowl. 896, S. C. (y) Forman v. Dawes, C. & Marsh. 127, per Coleridge, J. (2) Coy v. Lord Forester, 8 M. & W. 312; 9 Dowl. 770, S. C. (a) Cann v. Clipperton, 10 A. & E. 582; Cook v. Leonard, 6 B. & C. 351; 9 D. & R. 339, S. C., as qualified by the Court of Exchequer in Jones v. Gooday, 9 M. & W. 743, 745. 232 GENERAL ISSUE BY STATUTE. illegally or exceed his jurisdiction (6). Statutes of this kind are intended for the protection of honest persons, who bonâ fide mean to discharge their duty (c); and the Court will consequently so interpret their provisions, as to save harmless all persons who act illegally under the reasonable belief that they are authorised in what they do by the act of parliament; and this, too, whether the error complained of has been committed in respect of time, place, or circumstance (d). § 235. It is now finally determined that, under the plea of not guilty by statute the defendant may set up any defence that could be specially pleaded, whether it be founded wholly or partly on the statute, or be merely sustainable at common law (e). Thus, in an action for an excessive distress, such a plea puts in issue, not only the matter of justification, but the tenancy and the ownership of the goods (f); and if a plaintiff sues as administrator, the defendant, who has thus pleaded, may dispute his title to that character (g). The natural result of this rule is, that the Courts will not, in general, allow the defendant to plead the general issue by statute in connexion with special pleas; because, by so doing, he would plead the same matter twice over, and thus contravene the salutary rule which forbids the use of several "pleas, founded on one and the same principal matter, but varied in statement, description, or circumstances only" (h). It seems, however, that if a reasonable The Mor Leather (6) Hazeldine v. Grove, 3 Q. B. 997, 1006, 1007; 3 G. & D. 210, S. C.; Jones v. Gooday, 9 M. & W. 736, 743-746, per Parke, and Alderson, Bs.; Theobald v. 277; 5 M. & Ry. 225, S. C. Davisv Arling 8. 2.1.276 (c) Per Parke, B., in Jones v. Gooday, 9 M. & W. 743. (d) Hughes v. Buckland, 15 M. & W. 346, 353, 354, per Pollock, C. B. (e) Ross v. Clifton, 11 A. & E. 631; 1 G. & D. 72; 9 Dowl. 1033, S. C.; Maund v. Monmouth Can. Co., C. & Marsh. 606, 608, per Cresswell, J., stating the general opinion of the judges; Fisher v. Thames Junct. Rail. Co., 5 Dowl. 773; Haine v. Davey, 4 A. & E. 892; 6 N. & M. 356, S. C.; Eagleton v. Gutteridge, 11 M. & W. 469, per Parke, B. (f) Williams v. Jones, 11 A. & E. 643. (9) Tharpe v. Stallwood, 5 M. & Gr. 768, per Cresswell, J. (h) Reg. Gen. H. T. 4 Will. 4, reg. 5, 5 B. & Ad. iii.; Neale v. M'Kenzie, |