as the servant of the said E F, and by his command, requested 1. To persons. [Precludi non, as ante, 641.] Because he saith, that he the said CD 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, in the said second plea mentioned, and that he the said A B and all, &c. (here state the prescriptive, or other right of way, as ante, 573, 574. &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 CD 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 To plea of defence of * 644 1 1. To persons. public highway, in and along the said way in the said close of the said CD, unto and into the said close of the said AB, as it was lawful for him to do for the cause aforesaid; and there upon the said C D, at the said time, when, &c. in the said first count mentioned, of his own wrong, committed the said se veral 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 verification, as ante, 641.] To justifica tion under a [Similiter to the general issue, as ante, 592. To second pies latitatandwar- precludi non, as ante, 641.] Because, protesting that the said rant, protest- writ of our said lord the king, called a latitat, was not issued out ing the issuing of the writ of the said court of our said lord the king, before the king him and warrant, as to the resi due of the plea.(x) * 645 and de injuria self, directed to the said sheriff of, or delivered to the said sheriff to be executed, and that such warrant was not thereupon made by the said sheriff, or delivered to the said C D, in manner and form as the said C D hath above in his said second plea in that behalf alleged; for replication, nevertheless, in this behalf, the said A B saith, that the said C Dat 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 assaul *in the said first count mentioned, upon the said AB, und 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 de (x) See the plea, ante, 537. Where process or a warrant is stated in the plex, 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. & 1 B. & P. 76. claration mentioned, rent, tore, damaged, and spoiled the 1. To persons. clothes and wearing apparel of the said AB 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 CD. And this he the said A B prays may be inquired of by the country, &c. [Precludi non, as ante, 641.] Because he saith, that before any of the said time, when, &c. and at the time of making the demise hereinafter next mentioned, and from thence hitherto, one E F was, and still is, seised in his demesne as of freehold, for the term of his natural life, of and in the said out-house, in which, &c. in .e said second plea mentioned, and being so seised long store the said time, when, &c. to wit, on the — day of ——————, A. D. the said E F 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 hold the same to the said A B, from thenceforth for one whole year then next following, and so from year to year so long as they the said E F and A B should respectively please. By virtue of which said demise the said A B afterwards, and before the said time, when, &c. to wit, on the A. D. day of aforesaid, entered into the said out-house in the said second plea mentioned, in which, &c. with the appurtenances, and became and was thereof possessed, and being so possessed, and the said E F being still living, to wit, at, &c. aforesaid, the said AB continued so possessed of the said out-house in the said second plea mentioned, under and by virtue of the said demise from thence until the said C D, during the continuance of the said tenancy, to wit, at the said time, when, &c. of his own wrong, broke and entered the said out-house, in which, &c. in the said second plea mentioned, and the said CD unlawfully became possessed thereof, and the said CD (z) See the pleas, ante, 546. 548. The replication de injuria, is in general sufficient, except where the plaintiff and defendant are tenants in VOL. II. 73 conmon, and this replication may unlawfully committed the said trespasses in the introductory part of the said second plea mentioned, in manner and form as the said AB hath above thereof complained against him the said CD. And this, &c. [conclude with a verification, as ante, 641.] To a plea of [Precludi non, as ante, 641.] Because he saith, that one distress daE F long before the said time, when, &c. was seised in his de mage-feasant, that plaintiff mesne as of fee, of and in divers, to wit, had right of acres of land, common in lo- with the appurtenances, situate, lying, and being in the said cus in quo.(a) parish of in the said county of and that the said EF and all those whose estate he now hath, &c. (here state the prescriptive right of common and demise to the plaintiff, and his putting on his commonable cattle as in the pleas in bar in re flevin, ante, 638, 639.) and the said cattle, at the said time, when, &c. remained and continued feeding and depasturing in the said close, in which, &c. and using the said common of pasture there until the said C D at the said time, when, &c. of his own wrong committed the said trespasses in *the introduc tory part of the said second plea mentioned. And this, &c. [conclusion with a verification, as ante, 641.] * 647 To a plea of distress damage-feasant, defect of fen ees. [Precludi non, as ante, 641.] Because he saith, that the said close in the said second plea mentioned, before and at the said time, when, &c. did lie, and still doth lie, contiguous and next adjoining to a certain common and public king's highway, in the parish aforesaid, and that the said CD and all other the tenants and occupiers of the said close, in which, &c. with the appurtenances for the time being, from time, &c. (here state the obligation to repair, and the defect of the fences, and that the filaintiff's cattle being driven along the way, thereby escaped into the close, as ante, 557, 558, 559. 634. and then proceed a follows:) and remained and continued in the said close, in which, &c. until the said CD at the said time, when, &c. in the said first count mentioned, and before the said A B could (a) See the plea, ante, 346. and the replication. 1 Saund. 222. and ante, 658. drive the said cattle from and out of the said close, in which, &c. of his own wrong, seized, took, and carried away the said cattle, and impounded the same, and kept and detained the same so impounded for the said space of time in the said first count mentioned. And this, &c. [conclude with a verification, as ante, 641.] II. To per sonal proper ty. distress da that defendant tress to his [Precludi non, as ante, 641.] Because he saith, that after To a plea of the taking and impounding the said cattle in the said declara- mage-feasant, tion mentioned by the said CD in the name of a distress, in manner and form as the said C D hath in his said second plea in that behalf above alleged, to wit, on, &c. aforesaid, at, &c. aforesaid, he the said CD converted and disposed of the said cattle to his own use, in manner and form as the said AB hath above thereof complained against him the said CD. And this, &c. [conclude with a verification, as ante, 641.] * 648 To liberum *[Precludi non, as ante, 641.] Because he saith, that the III. To real said close in the said declaration mentioned, in which, &c. property. now is, and at the said several times, when, &c. was the close, tenementum, soil, and freehold of him the said A B,(d) and not the close, denial of plea. (c) soil and freehold of him the said CD, in manner and form as he the said C D hath above in his said second plea alleged; and this he the said A B prays may be inquired of by the country, &c. [Precludi non, as ante, 641.] Because he saith, that whilst To liberum tenementum, the said dwelling-house was the dwelling-house and freehold demise by de (b) See the precedent, 3 Wils. 20. (c) When the name of the close, or the abuttals thereof, have been set forth in the declaration with such certainty as to preclude the possibility of the defendant's having another close of the same name or abuttals in the same parish, the above replication will suffice, unless the plaintiff elaim as tenant, &c. under the defendant, when the plea must be speeial as in the following precedent. When the close is not set forth with name or abuttals, and there is alty reason to apprehend that the defend- (d) This allegation is not necessa- fendant to plaintiff. |