Bagshawe v Goward
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1791 |
| Date | 01 January 1791 |
| Court | Court of the King's Bench |
English Reports Citation: 79 E.R. 129
King's Bench Division
CRO.JAC.148. HILARY TERM, 4 JAC. 1. IN B. H. 129 case 6. bagshawe against goward. Hilary Term, 3 Jac. 1. Eoll. 1070. Trespass for taking away a gelding pretii five pounds is good on a general demurrer. Ante, 130. Post. 307. 1 Eoll. Abr. 673. 879. 2 Roll. Ab. 362. Yelv. 96. 2 Lev. 230. con. Ld. Ray. 76. 720. In trespass for taking and carrying away a gelding, if the defendant justify as for an estray, a replication that the defendant used the gelding is not a departure; for he is thereby rendered a trespasser ab initio. A stray horse taken damage feasant cannot be used. Owen, 46. Yelv. 96. Salk. 248. 3 Com. Dig. 122. 1 Vern. 37. 6 Mod. 216. 5 Com. Dig. 663. Trespass : for that on the 14th of October, 2 Jac. 1. he took and carried away a gelding of the price of five pounds. The defendant justifies as the King's bailiff of the manor of East-Langton, within the Duchy of Lancaster, for that he had waifs and estrays there, and took that gelding there coming in as an estray, and kept and detained him as an estray, until afterwards the plaintiff retook and reseizer] him, quce est eadem captio et abductio, tda. The plaintiff replies, that the defendant seized him the 14th October, 2 Jac. 1. and that the defendant postea, 16th October, 2 Jac. 1. and before his reseizure, laboured the said gelding, riding upon him and drawing with him, whereby he was much damnified. Et hoc, &c. The defendant hereupon demurred, because it was a departure from the declaration ; for in that he brought his action for the taking away of his gelding of the price of five pounds : that imports he never had him again ; and where he hath his gelding again, the rule in the Register, 97. is, that he shall not say pretii.-Sed rum allocatiir: for where he counts in trespass pretii, &c. it is no plea that he had his [148] goods again ; for that is only to be given in evidence in mitigation of damages ; and whether he saith pretii, or doth riot say it, is not matter of substance, or material. Vide 1 Hen. 4. pi. 15. 11 Hen. 4. pi. 2. 5 Hen. 6. pi. 7. Secondly, it was alledged, that this is a departure: for now it appears that the first seizure was lawful, and he brings the action for the abuse, which is matter subsequent at another day ; so he ought to have brought the action for the tort, if he did any, for the offence the last day, and not for the taking, &c.; therefore the replication doth not maintain the...
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