sant. 638 day of Damage fea that the said C D, and all other the tenants and occupiers of the said close, in which, &c. for the time being, from time whereof the memory of man is not to the contrary, hitherto of right have maintained and repaired, and until the neglect hereinafter mentioned, have been used and accustomed to maintain and repair, the fence between the said close, in which, &c. and the said common or waste, called when and as often as occasion hath required, and should require, to prevent cattle lawfully being in and upon the said common or waste, called from escaping from and out of the same into the said close, in which, &c. And the said A B further saith, that, &c. (here state the seisin in fee, and *prescriptive right of common, as ante, 517, 518. If by a copyholder, state the copyhold and right of common, as ante, 565, 566. or if the plaintiff be a tenant, state the demise, as ante, 215. or 516. and then proceed as follows :) And being so possessed thereof, he the said A B afterwards, and before the said time, when, &c. to wit, on the said put his said cattle in the said declaration mentioned, the same then and there being his own commonable cattle, levant and couchant, in and upon the said messuage, lands and premises, with the appurtenances, of the said A B, into the said common or waste, called grass there then growing, and to use his said common of pasture there, as it was lawful for him to do for the cause aforesaid, and the said cattle remained there, using the said common of pasture there, until the escape thereof hereinafter mentioned; and because the said fence, between the said common or waste, called, &c. and the said close, in which, &c. before and at the said time, when, &c. was ruinous, broken down, insufficient, and in decay for want of necessary repairing and amending thereof, and the said cattle of the said AE in the said declaration mentioned, a little before the said time, when, &c. to wit, on the said day of A. D. aforesaid, escaped out of the said common or waste, called, &c. into the said close, in which, &c. through the said defect of the said fence, and remained therein, until, &c. [conclude as in the precedent, ante, 635. from the obelisk.] to depasture the L sant. To avowry da mage feasant, had a right of that plaintiff common in locus in quo. (y) * 639 [Commencement of plea in bar, as ante, 629, 630.] Because Damage feahe saith, that, &c. (here state the seisin in fee, and prescriptive right of common in locus in quo, as ante, 517, 518. or if by a copyholder, as ante, 565, 566. and if the plaintiff be a tenant, after the seisin and prescriptive right of common, state the demise of entry, as ante, 215. or 516. and then proceed as follows :) And the said A B *being so possessed, he the said A B, afterwards and before the said time, when, &c. to wit, on the day and year in the said declaration mentioned, turned and put the said cattle, being his own commonable cattle, levant and couchant, in and upon the said messuage and land with the appurtenances, into the said close, in which, &c. to feed and depasture on the grass there then growing, and to use the said common of pasture of the said A B there, as he lawfully might, and the said cattle remained and continued therein, feeding and depasturing on the grass there then growing, and using the said common of pasture until the said (D, of his own wrong, at the said time, when, &c. took the said cattle in the said place, in which, &c. and unjustly detained the same against sureties and pledges, until, &c. in manner and form as the said A B hath above thereof complained against him. And this, &c. [conclude with a verification, as ante, 630.] [Commencement of plea in bar, as ante, 629, 630. seventh Tender of aprecedent.] Because he saith, that after the taking of the said mends before impounding. cattle in the said place, in which, &c. by the said CD, and be- (z) fore the impounding of the same, to wit, on the same day and year in the said declaration mentioned, at the parish aforesaid, in the county aforesaid, he the said AB tendered and offered to pay to the said CD a certain sum of money, to wit, the sum of. of lawful money of Great Britain, as amends for the said damage done to him the said CD, by the said cattle in the said place, in which, &c. as aforesaid, and which was then and there sufficient amends for the same; which said sum of the said CD then and there wholly refused to ac (y) See the precedent, 2 Wils. 269. bar and replication, Gilb. Dis. by Damage fea cept from the said A B, and unjustly detained the said cattle against sureties and pledges, &c. until, &c. in manner and form as the said A B hath above thereof complained against him the said C D. And this, &c. [conclude with a verification, au ante, 630. seventh precedent.] * 640 T wowry da mage feasant er, denial f *[Commencement of plea in bar, as ante, 629. and 630.] Because by se mon he saith, that the said CD, and all those whose estate he now his right of hath, and at the said time, when, &c. had of and in the said common.(9) messuage and land, with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have not had, nor have been used and accustomed to have, nor of right ought to have had, nor ought the said CD still of right to have, for himself and themselves, his and their tenants, and farmers, occupiers of the said messuage and land, with the appurtenances, common of pasture, in, upon, and throughout the said place, in which, &c. called for all his and their commonable cattle, levant and couchant, in and upon the said messuage or land, with the appurtenances, in every year, at all times of the year, as to the said messuage or tenement and land, with the appurtenances, belonging and ap pertaining; in manner and form as the said C D hath above in his said avowry in that behalf alleged. And this he the said A B prays may be inquired of by the country, &c. (4) See the avowry, ante, 517, 518. And as to the mode of denial, see 1 Saund. 103. 1. The plaintiff may either traverse the defendant's seisin in fee or his right of common, or may plead in bar his own right of commou as in the form, ante, 518, 563. The words of the traverse, as they depend on the avowry, neces sarily vary in each particular case. *REPLICATIONS IN TRESPASS. ment of a re special plea in non. [Similiter to general issue, as ante, 592. and commencement In general. And this he the said A B is ready to verify; wherefore the said A B prays judgment and his damages by him sustained, by reason of the committing of the said trespasses to be adjudged to him, &c. 2. Conclusion amends were (r) [Precludi non, ut supra.] Because he saith, that the said To plea of ten- mesne. [Precludi non, ut supra.] (r) See the plea, ante, 520. And as to this replication, Com. Dig. Pleader, 3 M. 36 And the replications to pleas of tender, ante, 596 to 601. (s) When this replication is proper, see Com. Dig. Pleader, F. 18. &c. 1 B. & P. 76. 2 BL. Rep. 1165. and ante, vol. 1. Index, tit. De Injuria. * 642 1 1. To persons. De injuria to son assault demesne.(t) To plea of son assault demesne, that E Fwas possess ed of a house, as his servant, dant out.(u) CD; and this he the said A B prays may be inquired of by the country, &c. [Precludi non, as ante, 641.] Because he saith, that the said CD, at the said time, when, &c. of his own wrong, and without the cause by him in his said second plea alleged, as saulted, beat, and ill-treated the said A B, and rent, tore, damaged and spoiled the said wearing apparel of the said A B, in manner and form as the said A B hath above in the said first count of his said declaration complained against him the said CD; and this he the said A B prays may be inquired of by the country, &c. [Precludi non, as ante, 641.] Because he saith, that long before, and at the said time, when, &c. in the said first count mentioned, one E F was lawfully possessed of a certain dwelland that AB, ing-house, with the appurtenances, situate and being in the made the sup- parish aforesaid, and being so possessed thereof, the said C'D posed assault to turn defen. Just before the said time, when, &c. in the said first count mettioned, was wrongfully and unjustly in the said dwelling-house, making a great noise and disturbance therein, and stayed and continued therein, making such noise and disturbance, without the license or consent, and against the will of the said E F, for a long space of time, to wit, until and at the said time, when, &c. in the said first count mentioned, and thereby then and there greatly disturbed and disquieted the said E F, and his family, in the *peaceable and quiet possession, use, and enjoyment of the said dwelling-house, whereupon he the said Bat the said time, when, &c. in the said first count mentioned, * 643 (t) See the pleas, ante, 523 to 537. And as to this replication in general, see Com. Dig. Pleader, 3 M. 16. and F. 18. &c. The replication may in general be de injuria as above; but when in fact the plaintiff made the first assault in defence of his possession, &c. or whenever in answer to the defendant's plea of son assault, he, relies upon new matter, he should not reply generally de injuria, but should state such new matter as in |