III. To real property. * 649 To a plea of license, denial of license.(c) To plea of es cape through es, that de fendant turn of the said C D, and before the said time, when, &c. to wit, on, &c. at, &c. aforesaid, he the said C D demised the said dwelling-house, with the appurtenances, to the said A B to have and to hold the same to him the said A B for and during, and unto the full end and term of one year from thence next ensuing, and fully to be complete and ended, and so from year to year, for so long time as they the said A B and C D should respectively please. By virtue of which said demise, he the said A B afterwards, and before the said time, when, &c. entered into the said dwelling-house, and became and was possessed thereof, and continued so thereof possessed from thence until the said CD afterwards, and during the continuance of the said demise, to wit, at the said *time, when, &c. of his own wrong, broke and entered the said dwelling-house, and committed the said several trespasses in the introductory part of the said second plea mentioned, in manner and form as the said A B hath above thereof com plained against him the said C D. And this, &c. [conclude with a verification, as ante, 641.] Because he saith, that the [Precludi non, as ante, 641.] said CD, at the said time, when, &c. of his own wrong, and without the leave and license of the said A B to him the said CD first given and granted in that behalf, committed the said several trespasses in the introductory part of the said second plea mentioned, in manner and form as the said A B hath above thereof 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 just defect of fen- before the said time, when, &c. the said cattle in the said de-' claration mentioned, were wrongfully turned and driven by the said CD from and out of the said highway into and upon the said close, or piece, or parcel of land, in which, &c. and upon that occasion, and by means, and in consequence thereof, the ed the cattle into locus in quo.(d) 1 said cattle were, at the said first time, when, &c. in the said III. To real defect of fen ces, that defendant's cattle were unru ly, &c. * 650 [Precludi non, as ante, 641.] Because he saith, that the said To plea of es banks, mounds and fences between the said closes of the said cape through C D and the said close, or piece or parcel of land of the said A B, before and at the said several times, when, &c. in the said plea of the said C D, and in the said declaration above respectively mentioned, at, &c. *aforesaid, were well and sufficiently maintained and repaired to prevent cattle, feeding and being in the said close of the said CD, from escaping from and out of the same into the said closes of the said A B, and that the said cattle of the said CD in the said second plea mentioned, at the said several times, when, &c. were wild, ungovernable and unruly, and used to break down banks, mounds and fences in good repair, and that the said cattle of the said CD at the said several times, when, &c. at, &c. aforesaid, through their said wild, ungovernable and unruly disposition, broke down the said mounds, banks and fences, between the said close of him the said A B and the said close of the said CD, the same then being well and sufficiently maintained and in good repair as aforesaid, and through the breach of the said banks, mounds and fences so made by the said cattle of the said C D as aforesaid, the said cattle, at the said several times, when, &c. entered into the said close of the said A B, and eat up the grass and herbage of the said A B then growing there, and did damage there, in manner and form as the said A B hath above in his said second plea in that behalf alleged; with- Traverse.(W) out this, that the said cattle so being in the said close, or piece or parcel of land of him the said A B as aforesaid, a little before the said several times, when, &c. in the said second plea mentioned, and against the will of the said C D, and without his knowledge or consent, escaped from the said close, or piece or (d) Quere, as to this traverse. 111. To real property. To plea of prescriptive right of common, denial of the right. (e) * 651 To plea of right of common, approvement of com zon. Observations on traverses of rights of common and ways in general. parcel of land of him the said C D through the defects and insufficiency of the said banks, mounds and fences between the said close of the said C D, and the said close, or piece or par cel of land of the said A B, as the said C D hath above in his said second plea in that behalf alleged. And this, &c. [conclude a verification, as ante, 641.] Because he saith, that the said [Precludi non, as ante, 641.] CD and all those whose estate he now hath, and at the said several times, when, &c. had, of and in the said 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 C D 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 close, in which, c. for all his and their commonable cattle, levant and couchant, in and upon the said messuage and land, with the ap purtenances, in every year, at all times of the year, as to the said messuage and land, with the appurtenances belonging and appertaining in manner and form as the said CD hath above in his said second plea in that behalf alleged; and this he the said A B prays may be inquired of by the country, &c. See the precedents, Rast. Ent. 626. b. 9 Wentw. 205. Thomp. Ent. 453. Willes, 57. 3 T. R. 445. and of a custom to enclose lands in a common field, and that after such enclosure the locus in quo is not commonable, see 2 Wils. 270. From the note to the last precedent it will appear, that where the right of common, or way, as stated by the defendant, is denied by the plaintiff, it is in general sufficient merely to deny such (e) See the pleas, ante, 563. and 517, 518. It is very usual in practice to reply specially de injuria, and to conclude with a formal traverse of the right of common, way, &c. and with a verification, in which case a rejoinder, reasserting the right of common, &c. is necessary, which oc casions unnecessary expense and delay; for the replication ought directly to deny the right of common, and conclude to the country. 1 Saund. 103. b. n. 3. 1 Ld. Raym. 641. * 652 right as in the last precedent, following the language of the III. To real 1 NEW ASSIGNMENTS. [Precludi non, as ante, 593.] Because he saith, that he In assumpsit. exhibited his said bill against the said CD, and brought his To plea of (e) See the precedents, 3 Wentw. 151 to 153. and 6 T. R. 607. But the former appears too prolix, and the latter precedent may be incorrect, according to the case in 3 Lev. 92. in which it was held, that to a justification in trespass, concluding with a statement that the trespasses mentioned in the plea were those men judgment recovered, new assignment that the action was brought those men tioned in the declaration, the plaintiff for breaches * 653 In assumpsit, suit thereupon, not for the non-performance of the said promises and undertakings in the said plea of the said CD men tioned, and in respect whereof the said judgment therein also mentioned, was so recovered as aforesaid, but for the non-performance of other and different promises and undertakings made by the said CD to the said A B, in manner and form as the said AB *hath above thereof complained against him the said C D, and this he the said A B is ready to verify; wherefore, inasmuch as the said CD hath not answered the said complaint of the said AB as to the said breach and non-performance of the said promises and undertakings in the said declaration mentioned, and so newly above assigned as aforesaid, he the said AB prays judgment and his damages, by reason of the nonperformance thereof, to be adjudged to him, &c. In trespass to persons. To plea of son assault de mesne, new assignment that the ae tion was different as sault.(ƒ) [Precludi non, as ante, 641.] Because he saith, that he the said A B exhibited his said bill against the said C D, and brought his suit thereupon, not for the trespasses in the introductory part of the said second plea mentioned, but for that the said CD on the said day of ——, A. D., with force brought for a and arms, &c. at, &c. aforesaid, upon another and different occa sion, and for another and different purpose than in the said plea mentioned, made another and different assault upon the said AB than the said assault in the said second plea mentioned, and then and there beat, bruised, wounded, and ill-treated the said A B in manner and form as the said A B hath above thereof complained against the said C D, and which said trespasses above newly as signed, are other and different trespasses than the said trespasses in the said second plea mentioned; and this he the said A B is ready to verify; wherefore, inasmuch as the said CD hath not answered the said trespasses above newly assigned, he the Conelusion. 163. And as to new assignments in cessary in some cases, where the de fendant has pleaded partnership in abatement. 1 Esp. Rep. 452. (f) See the precedents, 9 Wentw, 10. Index, 124. When this new assignment is proper, and when not, see I Saund. 299. n. 6. 2 T. R. 172 to 177. Ante, vol. 1. Index, tit. New Assignment. |