Damage-fea sant. [Commencement of avowry or cognisance, as ante, 508, 509.] Because he says, that before and at the said time, when, &c. Avowry for a distress da- he the said CD was and still is seised in his demesne *as of mage-feasant er having right of comin the mon loeus in quo. (11) * 518 Prescriptive right of com mon. by a freehold fee, of and in a certain messuage and land, with the appurtenances, situate, lying, and being in the parish of aforesaid, and before, and at the said time, when, &c. was in the actual occupation thereof; and that he the said C' D, and all those whose estate he now hath,and at the said time, 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 had, and have been used and accustomed to have, and of right ought to have had, and the said CD 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 appurtenances, common of pasture in, upon, and throughout the said place in which, &c. called for all his or 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 or tenement and land, with the appurtenances belonging and appertaining. And because the said cattle in the said declaration mentioned, at the said time, when, &c. were in and upon the said place, in which, &c. called, depasturing and destroying the grass, there then growing and being, and doing damage there, so that the said C D could not have or enjoy his said common of pasture there, in so ample a manner as he ought to have had and enjoyed the same, he the said CD well avows the taking of the said cattle, in the said declaration mentioned, in and upon the said place in which, &c. called -, and justly, &c. as for and in the name of a distress for the said damage so there done and doing as aforesaid. And this, &c. [conclude with a verification, as ante, 509.] ་ (u) See the several avowries and cognisances indexed in 8 Wentw. 144 to 227. This precedent will suffice to shew the mode in which an avowry, damage-feasant by  commoner, states the facts, and see 1 Saund. 346. a. 2. The different forms of plead ing title, ante, 200 to 233. and the precedents post, in trespass, will sufficiently enable the pleader to frame any other avowry or cognisance, which may occur in the ordinary course of practice. *IN TRESPASS. In the King's Bench, (or "C. P." or " Exchequer.") Term, 48 Geo. III. In general. C D ats. AB. And the said CD by E F his attorney, comes and de- General Issue.(c) fends the force and injury, when, &c. and says that he is not guilty of the said supposed trespasses above laid to his charge, or any part thereof, in manner and form as the said A B hath above thereof complained against him. And of this he the said CD puts himself upon the country, &c. C D ats. And the said CD by E F his attorney, comes and deA B. fends the force and injury, when, &c. and as to the coming with force and arms, &c. and whatever else is against the peace of our lord the now king, and as *to all the supposed trespasses in the said declaration mentioned, except as to the (x) Very few matters of defence can be given in evidence under this plea, which in general merely puts in issue the facts stated in the declaration. In trespass for injuries to the person matters in justification or excuse must be pleaded specially, and in trespass to personal property the same rule prevails, except in the instance of a distress for rent, which, when made upon the demised premises, may be given in evidence under the general issue, 11 Geo. II. c. 19. s. 21. 1 Esp. Rep. 257. In trespass to real property, the defendant may, under this plea, give in evidence his right of possession of the locus in quo. 7 T. R. 354. 8 T. R. 403. Rights of way and other easements must be pleaded specially. As to this plea in general, see ante, vol. (y) Before the statute 4 Ann. c. 16. "In genera'. Accord and satisfaction, ment. breaking and entering the said close, called, &c. and the said The plea of accord and satisfaction in trespass, is similar to and arbitra- that in case, ante, 502. adopting the term "trespasses” instead of "grievances." See also the pleas, 5 East, 294. As to the plea of arbitrament, see ante, in assumpsit, 436. which may be easily applied to trespass. Tender of a mends by a peace, under 24 Geo. II. c. 44. s. 2.(z) [First plea, general issue, as ante, 519.] And for a further justice of the plea in this behalf, as to the said assaulting, beating, and illtreating the said A B, and imprisoning him, and keeping and detaining him in prison for the said space of time in the said declaration mentioned by him the said CD, above supposed to have been done, &c. he the said CD, by leave of the court here for this purpose first had and obtained, according to the form of the statute in that 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 he the said CD at the said time, when, &c. was, and long before had been, a justice of our lord the now king, assigned to keep the peace of our said lord *the king, in and for the said county of and also to hear and determine divers felonies, trespasses, and other misde * 521 (2) The statute also authorises the third plea to plead the tender of the meanors done and committed within the said county. And In general. the said CD further says, that the said trespasses in the said declaration mentioned, above supposed to have been committed by him the said CD, were done and committed by him the said CD, in the execution of his said office of justice of the peace within the said county, after the 24th day of June, 1751, and that he the said C D after the committing of the said trespasses by him above supposed to be done, and before the exhibiting of the bill of the said A B against him the said CD in this behalf, (or if in C. P. or by original," before the commencement of this suit,") and within one calendar month next after any notice in writing of any writ or process intended to be brought against him the said C D by the said A B for the cause aforesaid, that is to say, on the day of ——, A. D. &c. aforesaid, tendered and offered to pay to the said A B the sum of -7. of lawful money of Great Britain, as and for amends for the said trespasses, which said sum of —1. so tendered and offered as aforesaid, was sufficient amends for the said trespasses, and which said sum of 1. so tendered in amends for the said trespasses, the said A B then and there wholly refused to accept and receive. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.] , at, claimer of title to locus in quo and tenderof amends. (a) [Actio non, as ante, 421. first precedent.] Because he says, Plea of disthat he the said C D, at the said times, when, &c. had not nor claimed to have, nor hath he, nor doth he now claim to have, but disavoweth and disclaimeth to have any title or interest in the said closes, in which, &c. and the said C D further saith, that the said cattle in the *said declaration mentioned, a little before any of the said times, when, &c. had, without the knowledge and against the will of him the said CD, strayed and escaped into the said closes of the said A B, in which, &c. and at the said times when, &c. were in the said * 522 (a) See the precedents, 9 Wentw. Index, 132. In trespass to land, this plea is given by 21 Jac. I. c. 16. s. 5. See the cases thereon, Com. Dig. Pleader, 3 M. 36. Vin. Abr. Trespass, S. a. 542. Bac. Abr. Tender, P. S. Notwithstanding the case in In general. * 523 Statute of limitations.(b) closes, in which, &c. doing damage there, as in the said declaration is mentioned; wherefore he the said C D, as soon as he had knowledge thereof, to wit, at the said several times, when, &c. in order to prevent further damage there to the said A B, and to drive his said cattle out of the said closes, entered the said closes, in which, &c. by the most convenient and proper ways, there for the purpose of driving the said cattle out of the said closes, and then and there, at the said times, when, &c. did drive them out of the said closes of the said A B, in which, &c. by the most proper and convenient ways there, as it was lawful for him to do, he doing as little damage on those occasions as he possibly could, and in so doing he the said CD, with his feet in walking, necessarily and unavoidably trod down, trampled upon, consumed and spoiled, a little of the oats of the said A B, there then growing and being. Which are the same trespasses in the said declaration mentioned, and whereof the said A B hath above thereof complained against him the said C D. And the said CD further saith, that after the committing of the said several trespasses, and before the day of the exhibiting of the bill of the said AB in this behalf, (or if in C. P. or by original, ❝ before the commencement of this suit,") to wit, on, &c. at, &c. aforesaid, he the said CD tendered and offered to pay to the said A B the sum of -. of lawful money of Great Britain, in full satisfaction of the said several trespasses in the said declaration mentioned, the said sum of -. then and there being sufficient amends for the said trespasses, which said sum of money he the said A B then and there wholly refused, and still doth refuse to accept of the said C D. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.] *[First plea, general issue, as ante, 519.] And for a further plea in this behalf, as to the said supposed trespasses in the said declaration mentioned, the said C D by leave of the court here for this purpose first had and obtained, according to the form of the statute in that case made and provided, saith that the (b) 21 Jac. I. c. 16. s. 3. See observations, on this statute, 6 East, 390) |