NEMENTUM. as aforesaid, did necessarily and unavoidably seize and take, and keep LIBERUM. TEand detain the residue of the said coals, whereof the said coals in the said first count mentioned, were part and parcel, for the said space of time in the introductory part of this plea mentioned, the same being a reasonable time for that purpose, doing no unnecessary damage to the said A. B. on the occasion aforesaid, as it was lawful for him to do for the cause aforesaid; which are the same supposed trespasses in the introductory part of this plea mentioned, and whereof the said A. B. hath above thereof complained against him; without this, that he the said C. D. is guilty of the said seizing, taking, and keeping, and detaining the said coals in the said first count mentioned, or of seizing, taking or carrying away the said coals in the said last count mentioned, at, &c. aforesaid, or elsewhere out of the said port, gout, or haven *in the river -, aforesaid. And this, &c. [Conclude [600] with a verification, as ante, 470, sixth precedent.] PERTY. [First plea, general issue, as ante, 568. Second plea, as fol- TO REAL PROlows:]-And for a further plea in this behalf, as to the breaking and Liberum tene entering the said close, in which, &c. in the said first count of the mentum, enusaid declaration mentioned, and with feet in walking, treading down, trampling upon, consuming and spoiling the grass and herbage there (ƒ). then growing, and tearing up, forcing up, and removing the faggots in (f) As to the plea of Liberum Tenementum in general, see Vol. I. Index, tit. Liberum Tenementum, and 1 Saund. 299. b. n. 6.—Com. Dig. Pleader. 3 M. 34.-Willes. 218.-[Et vide 2 Reeve's Hist. E. L. 341.]—A right of possession as a freeholder or leaseholder, &c. may be given in evidence under the general issue not guilty, see 8 T. R. 403. and in that case the defendant was under the general issue permitted to give in evidence the pulling down a wall; but in 8 East. 404. the court held that the defendant could not justify under the general issue, the cutting the posts and rails of another, though put upon the defendant's own soil, it is therefore frequently necessary to plead liberum tenementum specially, and to justify the cutting or removal of rails, &c. spe- trespasses Enumeration of the trespasses. NEMENTUM. &c. Locusin quo, freehold of E. F. LIBERUM TE-that count mentioned, and scraping up and collecting together the loose earth, soil, manure, and compost in the said first count mentioned, and beating down, throwing down, prostrating and destroying part of the banks and mounds in that count also mentioned, and casting and throwing the said loose earth, soil, manure, and compost so scraped up and collected, and the earth and soil arising from the said banks and mounds so prostrated and destroyed as in the same count [*601] *mentioned, from and out of the said close; the said C. D. by leave Actio non, of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said A. B. ought not to have or maintain his aforesaid action thereof against him *, because he says that the said close in the said first count mentioned, and in which, &c. now is and at the said several times, when, &c. was the close, soil, and freehold of one E. F. to wit, at, &c. Defendant's aforesaid; wherefore the said C. D. as the servant of the said E. F. entry, &c. as his servant. and by his command (g), at the said times, when, &c. in the said first count of the said declaration mentioned, broke and entered the said close, in which, &c. in the said first count mentioned, and with his feet in walking, trod down, trampled upon, consumed and spoiled the said grass and herbage therein also mentioned, and because the said faggots, earth, soil, manure, and compost in the said first count mentioned, and the said part of the said banks and mounds in the said first count mentioned, before the said times, when, &c. had been wrongfully and injuriously put and placed, and were at those times remaining and being in and upon the said close, in which, &c. and encumbering the same, he the said C. D. at the said times, when, &c. as such servant and by such command as aforesaid, in order to remove the said encumbrances, tore up, forced up, and removed the said faggots, and scraped up and collected together the said loose earth, soil, manure, and compost, and beat down, threw down, prostrated, and destroyed the said part of the said banks and mounds in the said first count mentioned, and cast and threw the said loose earth, soil, manure and compost so scraped up and collected, and the said earth and soil arising from the said banks and mounds so prostrated and destroyed, as in the same count mentioned, from and out of the said close, doing no unnecessary damage to the said A. B. on the occasion aforesaid; which are the same supposed trespasses in the introductory part of this plea *mentioned, and whereof the said A. B. hath above complained against him the said C. D. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent.] [*602] (g) These words are necessary, see now traversable in trespass, 11 East. ante, 1 Vol. 514. The command is 65. C. D. & G.H. [First plea, not guilty, as ante, 568.1-And for a SEISIN OF A ats. A. B. COPYHOLDER. The like in a more concise further plea in this behalf, the said C. D. and G. H. by leave, &c. say, (actio non, as ante, 469, third precedent. If the trespasses in the declaration relate entirely to land or realty, and not form (h). to any personal property, there is no occasion for any recital, but otherwise it is necessary to qualify the plea in its commencement, by reciting the trespasses to the land, as in the last precedent,) because they say that the said close, in the said declaration mentioned, and in which, &c. now is and at the said several times, when, &c. was the close, soil and freehold of the said C. D. to wit, at, &c. aforesaid, wherefore the said C. D. in his own right, and the said G. H. as his servant and by his command, at the said several times, when, &c. committed the said several supposed trespasses in the said declaration mentioned, (or “in the introductory part of this plea mentioned,”) in the said close, in which, &c. so being the close, soil and freehold of the said C. D.; as they lawfully might for the cause aforesaid which are the said several supposed trespasses, whereof the said A. B. hath above thereof complained against them. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent.] [*603] [First plea, general issue, as ante,568. Second plea same as ante, 600, Seisin in fee 1, to the asterisk, stating the trespasses intended to be justified, as in by a copyholder (i). the declaration, and then proceed as follows:-] Because he says that the said close, in which, &c. in the said first count mentioned, now is and at the said *several times, when, &c. in the said first count mentioned, was and from time immemorial hath been within and parcel of the manor of - -, in the county of, and a customary tenement of that manor demised and demisable by copy of the court rolls of the said manor, by the lord of the said manor, or by his steward of the court of the said manor for the time being, to any person or persons willing to take the same in fee-simple or otherwise, at the will of the lord of the said manor, according to the custom of the said manor: And the said C. D. further says, that long before either of the said times, when, &c. in the said count first mentioned, to wit, on the A. D. -, E. F. Esquire, day of (h) See the notes to the last prece- lessee of a copyholder, the plea, after dent. (i) As to the mode of pleading a copyhold title in general, see ante, 255, 6, 7. 259. 278, 9. As to the replication, 11 East. 70. n. a. If by the stating the seisin of the copyholder POSSESSION OF then being lord of the said manor at his court baron then holden in LESSEE. Justification der a lease for years giving ex[*604] press colour to the plaintiff (j). and for the said manor, before G. H., then his steward of the court of the said manor, by copy of the court rolls of the said manor, granted to the said C. D. amongst other things the said close, in which, &c. to hold the same to the said C. D. his heirs and assigns for ever, by copy of the court roll of the said manor, at the will of the lord of the said manor, according to the custom of the said manor; by virtue of which said grant, the said C. D. afterwards and before any of the said times, when, &c. to wit, on the day and year last aforesaid, entered into the said close in which, &c. and became and was seised thereof, in his demesne as of fee at the will of the lord of the said manor, according to custom of the said manor, and continued so seised thereof until and at and after the said several times, when, &c. Wherefore the said C. D. at the said times, when, &c. in the said first count mentioned, broke and entered the said close, in which, &c. and with his feet, &c. [Conclude as in the precedent, ante, 601, from the t.] [First plea, general issue, as ante, 568. Second plea the same as by tenant un- the precedent, ante, 600, 1, to the asterisk, stating the trespasses intended to be justified as in the declaration, and then proceed as follows:- Because he saith, that one *E. F. before any of the said times, when, &c. to wit, on, &c. at the parish aforesaid, in the county aforesaid, was seised in his demesne as of fee of and in the said close in the said declaration mentioned, and in which, &c. with the appurtenances; and being so thereof seised afterwards, and before any of the said times, when, &c. in the said declaration mentioned, to wit, on the day and year last aforesaid, at the parish aforesaid, by a certain indenture then and there made between the said E. F. of the one part, and the said C. D. of the other part, which said, &c. (here state the profert of the lease, and the demise and reference to the indenture and the defendant's entry, as ante, 264, and then proceed as follows:). Colour given-And the said C. D. being so possessed, the said A. B. claiming title (k). to the said close in which, &c. with the appurtenances, under colour (j) As to this plea, see Com. Dig. Pleader, 3 M. 40, 1. and ante, Vol. I. Index, tit. Colour. Though the right of possession may be given in evidence under the general issue, 8 T. R. 403, it is frequently advisable to plead this plea in order to compel the plaintiff to set forth his own title, or to admit some part of the defendant's, and where the plaintiff in trespass quare clausum fregit, states also the removal of personal property, or cutting down posts and rails, &c. this plea is necessary, 8 East. 404. (k) See a deed of feoffment pleaded by way of colour, 2 Rich. C. P. 443. LESSEE. of a certain charter of demise, pretended to be thereof made to him POSSESSION OF by the said E. F. for the term of his natural life, before the making of the said demise by the said E. F. to the said C. D. as aforesaid, whereas nothing of or in the said close, in which, &c. or any part thereof, ever passed by virtue of that charter, afterwards and before any of the said times, when, &c. and during the continuance of the said term so demised to the said C. D. as aforesaid, to wit, on the said first day in the said first count mentioned, entered into and upon the said close in which, &c. with the appurtenances, and was thereof possessed, and thereupon the said C. D. at the said several times, when, &c. entered into and upon the said close in the said declaration mentioned, and in which, &c. in and upon the said A. B.'s possession thereof, as being the close of him the said C. D. and with his feet, &c. [Same as the precedent, ante, 601, from the † to the end, justifying the trespasses according to the fact.] [*605] The like by a tenant from *[First plea, general issue, as ante, 568. Second plea, same as the last precedent, except in the statement of the demise, which is to be as follows:-] And being so seised thereof, he the said E. F. after year to year wards and before either of the said times, when, &c. to wit, on, &c. (. last aforesaid, at, &c. aforesaid, demised the said close, in which, &c. with the appurtenances, to the said C. D. to have and to hold the same to the said C. D. from thenceforth, for one year then next following, and fully' to be complete and ended, and so from year to year for so long time as the said E. F. and C. D. should respectively please. By virtue, &c. (as in the last precedent to the end, adopting the word "tenancy," instead of "term."] FENCES. [First plea, general issue, as ante, 568. Second plea, as follows:-] DEFECT of And for a further plea in this behalf as to the breaking and entering Pleato declathe said close in the said first count of the said declaration mention- ration for ed, and in which, &c. and with feet in walking, treading down, tramp- trespass with cattle, and in ling upon, and spoiling the grass in the said close, and with the said walking, that cattle in the said first count mentioned, eating up, treading down, de- defer pasturing, consuming, and spoiling other the grass growing in the said ed of an adclose, and with the said cattle tearing up, eating off, pulling up, pluck- joining close, ing off, consuming, spoiling, biting off, topping and destroying the plaintiff spring wood and underwood in the said first count mentioned, and ought to have repairgrowing and being in the said close, and breaking down, throwing ed the fence down, and destroying the said hedge and fence in the said first count between, was possess and that and that the (1) The tenancy as to its commencement and duration, must be stated according to the fact. |