SANT. pounding of the same, to wit, on the same day and year in the said DAMAGE FEAdeclaration mentioned, at the parish aforesaid, in the county aforesaid, he the said A. B. tendered and offered to pay to the said C. D. 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 C. D. 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 C. D. then and there wholly refused to. accept 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, as ante, 679, seventh precedent.] [*688] denial of his right of com [Commencement of plea in bar, as ante, 678 and 679.]-Because To avowry he saith that the said C. D. and all those whose estate he now hath, sant by a damage feaand at the said time when, &c. had of and in the said messuage and commoner, 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 mon (o). 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, upor, 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 appertaining, 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. *REPLICATIONS IN TRESPASS. [Similiter to general issue, as ante, 641, and commencement of replication to the special plea as follows:-] And the said A. B. as to () See the avowry, ante, 566, 567. 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 VOL. II. plead in bar his own right of common 3 U [689] IN GENERAL Commencement of a res in trespass, IN GENERAL. the said plea of the said C. D. by him secondly above pleaded as to plication to a the said several trespasses in the introductory part of that plea menspecial plea tioned, and therein attempted to be justified, saith that he the said A. B. by reason of any thing by the said C. D. in that plea alleged, ought not to be barred from having and maintaining his aforesaid action thereof against him the said C. D. because he saith that, &c.— [Here state the subject matter of the replication.] called pre cludi non. 2. Conclu sion with a verification. 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. To plea of [Precludi non, ut supra,]-Because he saith that the said sum of tender, that the amends, in the said plea mentioned, and therein alleged to have been were not suf- tendered by him the said C. D. to the said A. B. as aforesaid, was not ficient (a). sufficient amends for the said trespasses, in manner and form as the I. TO PER- said C. D. hath above in his said plea alleged; and this he the said A. B. prays may be inquired of by the country, &c. [Precludi non, ut supra.]-Because he saith that the said C. D. at the said time when, &c. of his own wrong, and without the cause De Injuria, or de son tort by him in his said second plea alleged, *committed the said several demesne (b). trespasses in the introductory part of that plea mentioned, in manner [*690] De Injuria, to son assault demesne (c). and form as the said A. B. hath above in his said declaration complained against him the said C. D.; and this he the said A. B. prays may be inquired of by the country, &c. [Precludi non, as ante, 689.]-Because he saith that the said C. D. at the said time when, &c. of his own wrong, and without the cause by him in his said second plea alleged, assaulted, beat, and ill-treated the said A. B. and rent, tore, damaged, and spoiled the said wearing SONS. apparel of the said A. B. in manner and form as the said A. B. hath 1. TÓ PEKabove in the said first count of his said declaration complained against him the said C. D.; and this he the said A. B. prays may be inquired of by the country, &c. son assault was possess that A. B. as supposed as defendant [*691] [Precludi non, as ante, 689.]-Because he saith that long before To plea of and at the said time when, &c. in the said first count mentioned, one demesne, E. F. was lawfully possessed of a certain dwelling-house, with the that E. F. appurtenances, situate and being in the parish aforesaid, and being so ed of a possessed thereof the said C. D. just before the said time when, &c. house, and in the said first count mentioned, was wrongfully and unjustly in the his servant said dwelling-house making a great noise and disturbance therein, made the and stayed and continued therein making such noise and disturbance, sault to turn without the licence or consent, and against the will of the said E. F. out (d). 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 dwellinghouse, whereupon he the said A. B. at the said time when, &c. in the said first count mentioned, as the servant of the said E. F. and by his command, requested the said C. D. to cease his said noise and disturbance, and to go and depart from and out of the said dwellinghouse, which the said C. D. then and there refused to do, whereupon the said A. B. as such servant of the said E. F. and by his command, gently laid his hands upon the said C. D. in order to remove him the said C. D. from and out of the said dwelling-house, as he lawfully might for the cause aforesaid, and which said laying of hands by the said A. B. on the said C. D. in manner and for the cause aforesaid, was the said supposed assault by the said C. D. in his said second plea mentioned to have been committed by the said A. B. and thereupon the said C. D. being thereby then and there greatly irritated and enraged, at the said time when, &c. in the said first count mentioned, of his own wrong committed the said trespasses in the introductory part of the second plea mentioned, in manner and form as the said A. B. hath above thereof complained against the said C. D. And this he the said A. B. is ready to verify. And the said A. B. is also ready to verify, that he did not assault the said C. D. as in the second (d) The general replication de injuria would in this case be improper, as the assault pleaded by the defendant is not here denied, but confessed and avoided. See a case precisely si milar in Carth. 280. and 2 Bla. Rep. SONS. 1. TO PER- plea mentioned, elsewhere than in the said dwelling-house of the said E. F. Wherefore he prays judgment and his damages by him sustained on occasion of the committing of the said trespasses in the introductory part of the said second plea mentioned, to be adjudged to him, &c. To plea of defence of possession of close, ante, 580, that plaintiff had [692] over the close. [Precludi non, as ante, 689.]-Because he saith that he the said C. D. long before and at the said time when; &c. in the said first count mentioned, was and still is seised in his demesne as of fee, of and in a certain close, with the appurtenances, situate, lying and being contiguous and next *adjoining to the said close of the said C. D. right of way in the said second plea mentioned, and that he the said A. B. and all, &c. (here stute the prescriptive, or other right of way, as ante, 621, 2, &c. and then proceed as follows:) wherefore he the said A. B. afterwards, and, at the said time when, &c. in the said first count mentioned, was about to put his said cattle into the said close of the said C. D. in the said second plea mentioned, to depasture the grass there then growing, and then and there endeavoured to open the said gate in the said plea mentioned, in order to lead his said cattle from and out of the said king's public highway, in and along the said way in the said close of the said C. D. unto and into the said close of the said A. B. as it was lawful for him to do for the cause aforesaid; and thereupon the said C. D. at the said tiine when, &c in the said first count mentioned, of his own wrong 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 in his said declaration alleged. And this, &c.-[Conclude with a terification, as ante, 689.] To justifica latitat and [Similiter to the general issue, as ante, 641. To second plea tion under a precludi non, as ante, 689.]-Because, protesting that the said writ warrant, pro- of our said lord the king, called a latitat, was not issued out of the testing the said court of our said lord the king, before the king himself, directed issuing of the or delivered to the said sheriff to be rant, and de executed, and that such warrant was not thereupon made by the said injuria as to the residue sheriff, or delivered to the said C. D. in manner and form as the said of the plea C. D. hath above in his said second plea in that behalf alleged; for writ and war- to the said sheriff of (e). (e) See the plea, ante, 586. Where process or a warrant is stated in the plea, the plaintiff cannot reply de injuria generally, but must either traverse the issuing of the writ or the warrant, or that the trespasses were committed in due execution thereof, Com. Dig. Pleader, F. 18, 19, 20, &c.. -1 Bos. and Pul. 76. SONS. [*693] replication, nevertheless, in this behalf, the said A. B. saith that the I. TO PERsaid C. D. at the said time when, &c. in the said first count of the said declaration mentioned, of his own wrong, and without the residue of the cause in his said second plea alleged, made the said assault in the said first count mentioned, upon the said A. B. and pushed, forced, and thrust the said A. B. from and out of the said messuage or dwelling-house in the said first count mentioned, into the said street therein also mentioned, and while the said A. B. continued on the ground in the said street, pulled, hauled, and dragged him upon his back through the mud and dirt in and along the said street, and for the distance and length of way in the said first count also mentioned, and thereby hurt, bruised, and wounded the said A. B. and imprisoned him the said A. B. and kept and detained him in prison for the said space of time in the said first count mentioned; and also at the said time when, &c. in the said second count of the said declaration mentioned, rent, tore, damaged, and spoiled the clothes and wearing apparel of the said A. B. in the said second count mentioned, to wit, at, &c. aforesaid, in manner and form as the said A. B. hath in and by the said first and second counts of his said declaration above complained against him the said C. D. And this he the said A. B. prays may be inquired of by the coun try, &c. day A. D. SONAL PRO distress da and demised same to [Precludi non, as ante, 689.]—Because he saith that before any of II. TO PERthe said time when, &c. and at the time of making the demise herein- PERTY. after next mentioned, and from thence hitherto, one E. F. was and To a plea of still is seised in his demesne as of freehold, for the term of his namage featural life, of and in the said out-house, in which, &c. in the said sant, that second plea mentioned, and being so seised long before the said time E. F. was seised of lowhen, &c. to wit, on the the said E. F. cus in quo demised the said out-house, in which, &c. in the said second plea mentioned, amongst other things to the said A. B. to have and to plaintiff, hold the same to the said A. B. from thenceforth for one whole year defendant of then next following, and so from year to year so long as they the said his own E. F. and A. B. *should respectively please. By virtue of which said wrong, &c. demise the said A. B. afterwards and before the said time when, &c.[694] to wit, on the day of, A. D. aforesaid, entered into the said out-house in the said second plea mentioned, in which, &c. with wherefore (ƒ) See the pleas, ante, 595, 596. The replication de injuria is in general sufficient, except where the plaintiff and defendant are tenants in com mon, and this replication may often be |