Serle v Darford
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | High Court |
English Reports Citation: 91 E.R. 977
COURTS OF KING'S BENCH AND COMMON PLEAS
1LD. EATM. in. MICH. TERM, 8 WILL. 3 977 serle vers. darford. Pleadings. Lutw. 1435, vol. 3, 110. An action of assault is transitory. The defendant may in a transitory action plead a local justification arising at another place than that in which the action is laid. The plaintiff may answer the local justification. S. C. Lutw. 1437. Trespass, for trespass, assault, battery, and wounding at Hamerton in Norfolk. The defendant pleads quoad the vi et armis and wounding, not guilty; and as to the residue of the trespass, the defendant pleads, that he was possessed of a close at T. in the same county, and that the plaintiff entered into the close with a great number of horses, and turned up the soil, that the defendant requested the plaintiff to qait the land; that the plaintiff refused, upon which the defendant molliter man us imposuit upon the plaintiff to maintain his possession, which is the assault, &c. and he traverses the assault, &c. at Hamerton. The plaintiff replies, and claims a way over the close to T. by prescription, and that the defendant, adtunc et ibidem broke the plaintiff's head, absque hoc quod defendena molliter manus imposuit modo et forma prout, &c. The defendant demurs. And Serjeant Wright took exception to the replication, that there is here a traverse [121] upon a traverse, which cannot be. Sed non allocatur. For per Curiam, where the first traverse is taken to the material point, there a traverse cannot be taken upon a traverse. But where the first is not to the material point, there a second traverse may be taken; and in such transitory actions there may be a traverse upon a traverse. Co, Lit. 282 b. Cro. Eliz. 99, Inglebath v. Jones. 407, Bateman v. Spring. Then Wright Serjeant took another exception, that the replication was a departure from the declaration, for the declaration is of an assault, &c. at H. and the replication admits that it was at T. And he cited 1 Hen. 6, 63. Bro. Departure 13, 14. 7 Hen. 6, 4. 8 Hen. 4, 16, G-irdler Serjeant e contra. That it is a transitory action, and if the defendant makes it local by his plea, the plaintiff may answer the plea, and it will be ho departure. Arid he cited Trin. 13 Car. 2, C, B. Rot. 795, Taylor v. Gabelus. Trespass...
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