Searl versus Bunion.
IN Trespass for taking of his Cattel: The Defendant pleads that he was possessed of Blackacre pro termino diversorum annorum adtunc & adhuc ventur̄; and being so possessed the Plaintiffs Cattle were doing damage, and he distrained them Da∣mage fesant, ibidem, and so justifies the taking, &c.
The Plaintiff demurrs, and assigns specially for cause that the Defendant did not set forth particularly the commencement of the Term of years, but only that he was possessed of an Acre for a Term of years to come; and regularly where a Man makes a Title to a particular Estate, in pleading he must shew the par∣ticular time of the Commencement of his Title, that the Plain∣tiff may replie to it.
The Chief Iustice and the whole Court held that the Plea was good, upon this difference; where the Plaintiff brings an Action for the Land or doing of a Trespass upon the Land, he is supposed to be in possession; but if he will justifie by vertue of any particular Estate, he must shew the Commencement of that Estate, and then such pleading as here will not be good.
But when the Matter is collateral to the Title of the Land, and for any thing which appears in the Declaration the Title may not come in question, such a Iustification as this will be good.
In this Case no Man can tell what the Plaintiff will reply; 'tis like the Cases of Inducements to Actions, which do not require such certainty as is necessary in other Cases.