#### *Holmes vs. Winegreen.

Hill. 2 Car.

CASE, for taking and detaining a box of charters, viz. quare cepit et detinuit unam pixidem, una cum diversis chartis et minumentis, concerning the land of the plaintiff, quousque, the plaintiff, in order to obtain them, gave to the defendant a note of £. 40. It was brought in Lincoln, and on judgment, error was brought here. Because

1. He says pixidem, without saying suam, or that he had it in possession.

2. He does not shew what charters were taken away; which is not well. For if he brings detinue, he ought to shew what they were. 2. H. 7. 6. If an heir pleads in bar detinue of charters, he ought to shew what fort of charters. 5 Rep. Playter’s case. Trespass quare pisces, suos cepit without shewing what kind; held ill. So here, for perhaps they do not belong to him. It would be otherwise, if the charters had been locked in the box: but as it is, it is bad. Therefore intire damages being are given, it is error. To which it was answered that the damages are not given not the Chartas, but for the detention of them, ntil the note was given.

3. The action is quare cepit et detinet quasque, &c. and the jury gave their verdict, that the defendant is culp. transgressionis prædict. and they cannot find the issue by implication. Loveday’s case, 8 Rep.

Doderidge, J. and Whitlock, J. (aliis absentibus) inclined, on those three points, in favour of the plaintiff, and a peremptory day was given so the defendant, to maintain his judgment.

4. Another error was assigned: Prescriptum est ballivo quod caperet instead of capiat. In the replication quod quærens dixit tunc, instead of dicit, and the verdict is quod juratores dixerunt, instead of dicunt. The mistake of the tense vitiates the plea. Dyer 156, 221. 10 H. 7. 12. 35 H. 6. 15. Dyer 268. 9 H. 5. 12. But the court did not say any thing respecting this.

5. A special action on the case does not lie here, but a writ of detinue or trespass. 18 E. 4. 23. An action on the case does not lie, where the identical thing may be recovered as here. But the court did not speak on this point.

Calthrop, on another day moved the court again, and now

Doderidge, J. and Jones, J. e contra.

*The declaration *196 de prixide una cum diversis charlis, concerning the plaintiff’s land, is well enough. For the charters carry with them the property of the box, whether it be sealed or locked, if they are in it. Also it is certain enough, for damages given for the detention until the note was given, do not interfere with the recovery of the charters. So the issue being tantamount to the general issue, when the jury find the general issue it is well enough, but Doderidge, J. agreed to a case put by Galthrop, thus: Issue is an a-vowry, whether there be a special custom, and the jury find a special verdict, if the court think that the defendant, &c. that he is guilty, and if the court, &c. which is bad. Et adjournatur, on the 4th point ut supra. Godb. 460, 373.