mon, &c. as TO REAL PRO- the said C. D. and all those whose estate he now hath, and at the PERTY. said several times when, &c. had, of and in the said messuage and stated in the land, with the appurtenances in the said second plea mentioned plea (a).`for the time being, from time whereof the memory of man is not to the contrary, have had and have been used and accustomed to have, and of right ought to have had, and the said C. D. still of right ought to have for himself and themselves, his and their tenants and farmers, occupiers of the said messuage and land, with the appurte nances, 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 appurtenances, 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 he the said C. D. hath in his said second plea above alleged. And of this he the said C. D. puts himself upon the country, &c. (*720] Common form of a surrejoinder. *SUR-REJOINDERS. In the K. B. (or " C. P" or " Exchequer.") Term, 51 Geo. S. A. B. agst. And the said A. B. as to the said rejoinder of the said C. D. C. D.) to the said replication of him the said A. B. to the said second plea of him the said C. D. saith, that he by reason of any thing by the said C. D. in that rejoinder above alleged, ought not to be barred from having or maintaining his aforesaid action thereof against him the said C. D. because he saith, that, &c. (state the subject matter of the sur-rejoinder, and if merely a denial of the rejoinder, conConclusion clude thus:) And this he the said A. B. prays may be inquired of by the country, &c. to the coun try. Conclusion with a verification in trespass. [If the sur-rejoinder be of new matter, conclude with a verification similar to the conclusion of a replication. The form in trespass is as follows:]-And this he the said A. B. is ready to (a) We have seen that a replication, denying a right of common, or any other prescriptive right, or the obligation to repair, as stated in the plea, should conclude to the country, and without a formal traverse, see ante, 699, and 1 Saund. 103. b. If the replication be improperly concluded with a formal traverse and verification, the rejoinder must re-assert the subject matter of the plea, as in the above precedent. verify, wherefore as before he prays judgment and his damages by him sustained, on occasion of the committing of the said trespasses, to be adjudged to him, &e. And the said A. B. as to the said replication of the said C. D. to Rejoinder in replevin (a). the said plea in bar of him the said A. B. to the said avowry of the said C. D. saith that the said C. D. ought not, by reason of any thing by him in that replication alleged, to avow the taking of the said cattle in the said close in which, &c. and justly, &c. because he saith that, &c. (here state the subject matter of the rejoinder, and conclude to the country, or with a verification, as in a plea in bar, ante, 679.) [*721] der in tres *[Precludi non, as ante, 720.]-Because he saith that after the giving of the said notice in the said rejoinder mentioned, and before Sur-rejointhe expiration of the said tenancy, to wit, on, &c. at, &c. afore- pass, that the said, the said C. D. waived, relinquished and abandoned the said notice to quit was notice, and then and there assented and agreed with the said waived (b) A. B. to the continuance of the said tenancy in the said replication mentioned, and the said tenancy did continue from thenceforth, until, and at, and after the said time when, &c. to wit, at, &c. aforesaid. And this, &c.[Conclude with a verification, as ante, 720.] REBUTTERS AND SUR-REBUTTERS. In the K. B. (or "C. P." or "Exchequer.") C. D. ats. Term, 51 Geo. S. quit. And the said C. D. as to the said sur-rejoinder of the said IN TRESPASS. A. B. A. B. to the said rejoinder of him the said C. D. to the said Rebutter denying the replication to the said second plea of him the said C. D. saith that waiver of the the said A. B. ought not by reason of any thing by him in that sur- notice to rejoinder alleged, to have or maintain his, aforesaid action against him, in respect of the said supposed trespasses in the introductory part of the said second plea mentioned, because he saith that he the said C. D. did not waive, relinquish or abandon the said notice, or assent or agree with the said A. B. to the continuance of the said (a) See the precedents of rejoinders in replevin, 8 Wentw. 6. 13. Lil. Ent. 360. (b) See the rejoinder, ante, 718, 9. IN TRESPASS. tenancy in the said replication mentioned, nor did the same continue in manner and form as the said A. B. hath above in his said surrejoinder in that behalf alleged; and of this he the said C. D. puts himself upon the country, &c. [*722] *In the K. B. (or " C. P." or " Exchequer.") Term, 51 Geo. S. Sur-rebutter A. B.And the said A. B. as to the said rebutter of the said similiter. agt. C. D. C. D. and whereof he hath put himself upon the country, doth the like. PLEAS, &c. TO NEW ASSIGNMENTS. General is sue to new In the K. B. (or "C. P" or " Exchequer.") C. D. Term, 51 Geo. S. And the said C. D. as to the said several supposed trespasses assignment. A. B.J above newly assigned saith that he is not guilty in manner and form as the said A. B. hath above thereof complained against him, and of this he puts himself upon the country, &c. Commence- And for a further plea in this behalf, as to the said several supment of a special plea posed trespasses above newly assigned, the said C. D. by leave of the to a new as- court here for this purpose first had and obtained, according to the signment (c). form of the statute in that case made and provided, saith that the said A. B. ought not to have or maintain his aforesaid action thereof against him, because he saith that, &c. Conclusion with a verifi cation. Similiter, to general issue And this he the said C. D. is ready to verify, wherefore he prays judgment if the said A. B. ought to have or maintain his aforesaid action thereof against him, in respect of the said supposed trespasses above newly assigned, &c. And the said A. B. as to the said plea of the said C. D. by him first above pleaded to the said trespasses above newly assigned, and wheresignment. of he hath put himself upon the country, doth the like. to new as (c) See a plea of set-on to a new assignment in assumpsit, 3 Wentw. 163, ment of re *And the said A. B. as to the said plea of the said C. D. by him [*723] secondly above pleaded, as to the said trespasses above newly as- IN TRESPASS. signed, saith that he the said A. B. ought not, by reason of any thing Commenceby the said C. D. in that plea alleged, to be barred from having and plication to a maintaining his aforesaid action thereof against the said C. D. in re- special plea spect of the said several trespasses above newly assigned. Because signment. he saith that, &c. to a new as with a verification. And this he the said A. B. is ready to verify, wherefore he prays Conclusion judgment and his damages by him sustained, by reason of the committing of the said several trespasses above newly assigned to be adjudged to him, &c. next after Plea puis darrein continuance of ats. And now at this day, that is to say, on next after sizes (a). A. B. in this same term, until which day the plea aforesaid was last continued, comes the said A. B. by - his attorney, and the said release, &c. C. D. by his attorney aforesaid, and the said C. D. saith that the not at the assaid A. B. ought not further (c) to have or maintain his aforesaid action thereof against him, because he saith that after the last continuance of this cause, that is to say, after , in this same term, from which day this cause was last continued, and before this day, to wit, on, &c. at, &c. he the said A. B. (here state the release, as ante, 487, or other subject matter of the plea,) and this he the said C. D. is ready to verify, wherefore he prays judgment, if the said A. B. ought further to have or maintain his aforesaid action thereof against him, &c. (b) As to the title, see 3 T. R. 554. (a) As to this plea in general, ante, commencement of the suit, see 9 Vol. I. Ind. tit. Pleas Puis Darrein East. 82. Continuance.-Bul. Ni. Pri. 309.Selwyn's Ni. Pri. 118.-Com. Dig. Abatement, H. 32. I. 24. And when it is not necessary to plead specially matter of defence arising since the (c) This seems necessary, see 4 East. 507.-Ante, 469. second precedent. The like at the assizes (d). [*725] And now at this day, to wit, on the and year of the reign of our sovereign lord George the Third, by the day of in should the TO DECLARA C. D. TIONS. murrer to a Term, 51 Geo. 3. ats. And the said C. D. by E. F. his attorney, comes and defends General de- A. B. the wrong and injury, when, &c. and says, that the said decla J declaration ration (or, "the said first count of the said declaration,") and tite (a). matters therein contained in manner and form as the same are above stated and set forth, are not sufficient in law for the said A. B. to have or maintain his aforesaid action thereof against him the said C. D. and that he the said C. D. is not bound by the law of the land to answer the same, and this he is ready to verify; wherefore, for want of a sufficient declaration (or "first count of the said declara (d) See the notes to the last prece- 11 East. 565. For an objection in matdent. ter of form, the demurrer should in all cases be special. 10 East. 359. (a) When a general demurrer to the whole declaration is improper, see |