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sant.

day of

Damage fea- that the said c D, and all other the tenants and occupiers of

the said close, in which, &c. for the time being, from time whereof the memory of man is not to the contrary, bitberto of right have maintained and repaired, and unul the neglect hereinafter mentioned, have been used and accustomed to maintain and repair, the fence between the said close, in which, &c. and the said common or waste, called , when and as often as occasion hath required, and should require, lo prevent cattle lawsuiiy being in and upon the said common or waste, called from escaping from and out of the same into the

said close, in which, &c. And the suid A B further saith, that, * 638

&c. (here state ihe scisin in fee, and *prescriptive right of common, as ante, 517, 518. If by a copyholder, state the copyhold and right of common, as antr', 565, 566. or if the plaintiff be a tenant, siate the demise, as ante, 215. or 516. and then proceed as follows :) And being so possessed thereof, he the said A B afterwards, and before the said time, when, &c. to wit, on the said

put his said cattle in the said declaration mentioned, the same then and there being bis own commonable cattle, levant and couchant, in and upon the said messuage, lands and premises, with the appurtenances, of the said A B, into the said common or waste, called

to de pasture the grass there then growing, and to use his said common of pasture there, as it was lawful for him to do for the cause afore. said, and the said cattle remained there, using the said.common of pasture there, until the escape thereof hereinafter mentioned ; and because the said sence, between the said com

or waste, called, &c. and the said close, in which, &c. before and at the said time, when, &c. was ruinous, broken down, insufficient, and in decay for want of necessary repairing and amending thereof, and the said cattle of the said A L in the said declaration mentioned, a litile before the said time, when, &c. to wit, on the suid aforesaid, escaped out of the said common or waste, called, &c. into the said close, in which, &c. through the said defect of the said fence, and remained therein, until, &c. [conclude as in the precedent, anie, 635. from the obelisk.]

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[Commencement of plea in bar, as ante, 629, 630.] Because Damage feahe saith, that, &c. (here state the seisin in fee, and prescriptive

Toalowry daright of common in locus in quo, as ante, 517, 518. or if by a

mage tea: ant, copyholder, as ante, 565, 566. and if the plaintiff be a tenant, had a riglie of

that plainult after the seisin and prescriptive right of common, siate the de- common in lo

cus in quo.(y) mise of entry, as ante, 215. or 516. and then proceed as follows :) And the said A B *being so possessed, he the said A B, after

* 639 wards and before the said time, when, &c. to wit, on the day and year in the said declaration mentioned, turned and put the said cattle, being his own commonable cattle, livant and couchant, in and upon the said messuage and land with the appurtenances, into the said close, in which, &c. to feed and depasture on the grass there then growing, and to use the said common of pasture of the said A B there, as he lawfully might, and the said cattle remained and continued therein, feeding and depasturing on the grass there then growing, and using the said common of pasture until the said ( D, of his own wrong, at the said time, when, &c. took the said cattle in the said place, in which, &c. and unjustly detained the same against sureties and pledges, until, &c. in manner and form as the said A B hath above thereof complained against him. And this, &c. [conclude with a verification, as ante, 630.]

[Commencement of plea in bar, as ante, 629, 630. seventh Tender of aprecedent.) Because he saith, that after the taking of the said wends before

impounding cattle in the said place, in which, &c. by the said C D, and be- (7) fore the impounding of the same, to wit, on the same day and year in the said declaration 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 ofl. the said C D then and there wholly relused to ac

(y) See the precedent, 2 Wiis. 269. bar and replication, Gilb. Dis. by (z) See the precedent of pica in Hunt. 286. 8 Co. 147. a.

sant.

Damage fea. cept from the said A B, and unjustly detained the said cattle

against surelies and pledges, &c. until, &c. in manner and form as the said A B hath above thereof complained against him the said CD. And this, &c. [conclude with a verification, a

ante, 630. seventh precedent.] * 640 T: 5wly da. *[ Commencement of plea in bar, as ante, 629. and 630.] Because mage feasant by a c m ons he saith, that the said CD, and all those whose estate he now er, Tenial f his right fhath, and at the said time, when, &c. had of and in the said common. (9) 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, por 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 place, in which, &c. called for all his and their commonable cattle, levant and couchant, in and upon the said messuage or land, witb the appurtenances, in every year, at all times of the year, as to the said messuage or tene. ment and land, with the appurtenances, belonging and ap. pertaining ; 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.

() See the avowry, ante, 517,518. may plead in bar his own right of And as to the mode of denial, see 1 conimou as in the form, ante, 518, Saund. 103. 1. The plaintiff may 563. The words of the traverse, as either traverse the defendant's seisin they depend on the avowry, necesa in fee or his right of common, or sarily vary in each particular case,

*REPLICATIONS IN TRESPASS.

ment of a re

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[Similiter to general issue, as ante, 592. and commencement In general. of replication to the special plea as follows :] And the said Commence. A B, as to the said plea of the said C D by him secondly plication 10 a above pleaded, as to the said several trespasses in the intro- special plea in ductory part of that plea mentioned, and therein attempted to

ed precludi 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.]

non.

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And this he the said A B is ready to verify ; wherefore the 2. Conclusion

. said A B prays judgment and his damages by him sustained, with a verifiby reason of the committing of the said trespasses to be adjudged to him, &c.

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[Precludi non, ut supra.) Because he saith, that the said to plea of tensum of -. in the said plea mentioned, and therein alleged to der, that the have been tendered by him the said C D to the said A B as not sufficieni, aforesaid, was not sufficient amends for the said trespasses, in manner and form as the said C D hath above in his said plea

alleged ; and this be the said A B prays may be inquired of · by the country, &c.

[Precludi non, ut supra.] Because he saith, that the said De injuria, or C D at the said time, when, &c. of his own wrong, and with de son tort de

mesne.(s)
out the cause by him in his said second plea alleged, commit-
ted the said several trespasses in the introductory part of that
plea mentioned, in manner *and form as the said A B hath
above in his said declaration complained against him the said

* 642

(r) See the plea, ante, 520. And (s) When this replication is proas to this replication, Com. Dig. Plead- per, see Com. Dig. Pleader, F. 18.

And the replications to &c. 1 B. & P. 76. 2 BL. Rep. 1165. pleas of tender, ante, 596 to 601. and ante, vol. 1. Index, tit. De lojuria.

er, 3 M. 36

1. To persons. C D; and this he the said A B prays may be inquired of by

the country, &c.

De injuria to son assault de mesne.(t)

[Precludi non, as ante, 641.] Because he saith, that the said CD, at the said uime, when, &c. of his own wrong, and without the cause by him in his said second plea alleged, as. saulted, beat, and ill-treated the said A B, and rent, tore, damaged and spoiled the said wearing apparel of the said A B, in manner and form as the said A B hath above in the suid first count of his said declaration complained against him the said C 0; and this he the said A B prays may be inquired of by the country, &c.

to turn

To plea of son [Precludi non, as ante, 641.] Because he saith, that long assault de mesne, thit e before, and at the said time, when, &c. in the said first count Ewas possesso mentioned, one E F was lawfully possessed of a certain dwell· and that A B, ing-house, with the appurtenances, situate and being in the made the sup: parish aforesaid, and being so possessed thereof, the said CD posed assault just before the said time, when, &c. in the said first count mendant out.(u) tioned, was wrongfully and unjustly in the said dwelling-house,

making a great noise and disturbance therein, and stayed and continued therein, making such noise and disturbance, without the license or consent, and against the will of the said E F, 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 * 643 his family, in the "peaceable and quiet possession, use, and

enjoyment of the said dwelling-house, whereupon he the said 4 B at the said time, when, &c. in the said first count mentioned,

(1) See the pleas, ante, 523 to 537. the following precelent, and in And as to this replication in general, Carth. 280. and 2 B1. Rep. 1165. see Com. Dig. Pleader, 3 M. 16. and (u) The general replication de in. F. 18. &e. The replication may injuria, would in this case be improper, general be de injuriu as above ; but as the assault pleaded by the defend. when in fact the plaintiff made the ant is not here denied, but confessed first assault in lefence of his posses, and avoided. See a case precisely sion, &c. or whenever in answer to similar in Carth. 280. and 2 Bl. Rep. the defendant's plea of son assailt, 1165. and the note to the last precehe, relies upon new matter, he should deat. As to stating the defence of not reply yenerally de injurin, but possession, see ante, 529 to 532. should state such new matter as in

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