PLEA—TITLE LESS THAN FREEHOLD (GIVING COLOUR (4).

133

that A B. feised

he entered, giv.

that the defend.

becaufe

mage, one de

his command,

ift, Not Guilty as to the whole: 2d, as to the faid breaking, Plea &c. in the faid first Count mentioned above supposed to have been Not guilty; 2d, committed by faid H. A. &c. they the faid H. A. &c. by leave of, of the clofe, and &c. fay that (actio non); because they fay, that W. B. and demifed fame to R. M. long before the faid time when, &c. in the said first Count one of the deof the faid declaration mentioned, to wit, on, &c. at, &c. were fendants, by feifed in their demefne as of fee (amongst other things) of and in means where of the faid close in the faid first Count of the faid declaration men- ing colour to the tioned, and in which, &c. with the appurtenances, and being fo plaintiff under a thereof feifed, afterwards, and long before the faid time when, pretendeddemife &c. in the faid firft Count of the faid declaration mentioned, to from A. B. to wit, on, &c. at, &c. by a certain indenture then and there made the plint ff, and between the faid W. B. and R. M. of the one part, and the faid ant and his ferH of the other part, one part of which faid indenture, fealed vants, with the feal of the faid W. B. and R. M. they the faid H. A. the hed was &c. now bring here into court, the date whereof is the day and wrongfullyereced and doing da. year laft aforefaid, they the faid W. R. and R. M. for the confiderations therein mentioned, did demife, leafe, and to farm let fendant in his unto the faid H. amongst other things, the faid clofe in which, own right, and &c. with the appurtenances, to have and to hold to the faid H. his the reft as his executors, adminiftrators, and aligns, from the feaft day of the fervants, and by Annunciation of the Bleffed Virgin Mary then laft paft, for, and pulled down the during, and unto the full end and term of fixty-five years from thed, and rethence next enfuing and fully to be complete and ended; by virtue moved the ma. of which faid demnife he the faid H. afterwards, and long before terials to a prothe faid time when, &c. to wit, on, &c. at, &c. entered into per place for the ufe of plaintiff, and upon the, faid clofe in which, &c, with the appurtenances, and that they and became and was poffeffed thereof for the faid term fo to him erected thereof demifed, and being fo thereof poffeffed, the faid plaintiff houfe, as it was claiming the faid clofe in which, &c. with the appurtenances, lawful for them) under colour of a certain charter of demife pretended to be thereof made by the faid W. and R. M. to him the faid plaintiff for the term of his natural life before the faid demife fo as aforefaid made by the faid W. B. and R. M. to the faid H. whereas nothing of the faid clofe in which, &c. with the appurtenances, ever paffed into the poffeffion of the faid plaintiff by virtue of that charter of demife afterwards, and before the faid time when, &c. in the faid first Count of the faid declaration mentioned, and during the continuance of the faid term fo demifed to the faid H. as aforefaid entered into the faid clofe in which, &c. with the appurtenances, and was thereof poffeffed, upon whofe poffeffion the faid H. in his own right, and to the faid W. A. &c. as the fervants of the faid H. and by his command, at the laid time when, &c. in the faid first Count of the faid declaration mentioned, entered into and upon the faid clofe in which, &c. with the appurtenances, as being the close of the faid H. and trod down and trampled upon, crushed, damaged, and fpoiled the grafs there growing and being. as being the grafs of the faid H. growing and being in his faid clofe, and because the faid erection or building in the faid first Count of the declaration mentioned before the faid time when, (a) And licence in law (to abate nuifance.)

to do.

the

Replication to

mitting that A,

mifed fame to

&c. in that Count mentioned, had been erected, and was then
wrongfully standing and being in and upon the faid close, taking
up room there, and incumbering the fame, and doing damage
there to the faid H. he the faid H. in his own right, and the faid
W. A. &c. as the fervants of the faid H. and by his command,
at the faid time when, &c. in the faid firft Count of the faid de-
claration mentioned, pulled down, threw down, proftrated, and
deftroyed the faid erection or building and the materials thereof
coming in the faid firft Count alfo mentioned, and took and carried
away from and out of the faid close to a proper and convenient
place near the fame, and there depofited and left the faid ma-
terials to and for the use of the faid plaintiff, and dug up, fub-
verted, raised, and spoiled the grafs and earth, together with
other the grafs there refpectively growing and being in the faid
firft Count mentioned as being the foil, earth, and grafs of the
faid H. growing and being in the faid close, and erected and
built, and caufed and procured to be erected and built part of the
faid meffuage or dwelling-houfe in the faid firft Count mentioned
in and upon the faid clofe, and expelled, put out, and amoved
the faid plaintiff from and out of the poffeffion, ufe, and occu-
pation of part of his faid clofe, and kept and continued him fo ex-
pelled, put out, and amoved, and the faid part of the meffuage or
dwelling-house fo erected and built on the faid close as aforefaid
for the faid fpace of time in the faid first Count of the faid decla-
ration mentioned, as it was lawful for him to do for the cause
aforefaid, which are the fame breaking and entering the faid close
in the faid firft Count of the faid declaration mentioned, and
treading down, &c. for the faid fpace of time in the said first
Count mentioned, whereof the faid plaintiff hath above com-
plained against the faid H. W. A. &c.; and this they the faid
defendants are ready to verify; wherefore they pray judgment if
the faid plaintiff ought to have his aforefaid action thereof main-
tained against them, &c.
WM. BALDWIN.

And as to the faid plea of the faid defendants by them laftly the last plea, ad above pleaded in bar as to the breaking and entering, &c. above B. was feifed, committed by the faid defendants, he the faid plaintiff fays, that and de nifed the notwithstanding any thing in that plea alledged, he ought not to premifes to de- be barred from having or maintaining his aforefaid action thereof fendant, against them; because he fays, that the faid W. B. and R. M. in afterwards de the faid plea mentioned were feised in their demefne as of fee of plaintiff, by and in the faid clofe in the faid first Count of the faid declaration means of which mentioned in which, &c. with the appurtenances, and that they he entered; and demifed the fame, with the appurtenances, unto the said H. in manner and form as the faid H. W. &c. have above in that plea pulling down the alledged; yet the faid plaintiff in fact further fays, that after the fhed, carrying making of the faid demife to the faid H. and before the said time away the mate- when, &c. in the faid firft Count of the faid declaration menials, erecting tioned, to wit, on, &c. at, &c. by a certain indenture then and the houfe, that there made between the faid H. of the one part, and the faid

that as to the

breaking, &c.

defendants de

injuria, &c.

plaintiff

plaintiff of the other part (one part of which faid indenture,
fealed with the feal of the faid H. and bearing date the day and
year laft aforesaid, the faid plaintiff now brings into court here),
he the faid H. for the confideration therein mentioned, did demife,
leafe, fet, and to farm let unto the faid plaintiff (amongst other
things) the faid close in the firft Count of the faid declaration
mentioned in which, &c. with the appurtenances, to have and to
hold the fame, with the appurtenances, unto the faid plaintiff, his
executors, adminiftrators, and affigns, from the feast day of St.
M. which was A. D. 1781, for and during, and unto the full
end and term of eighty-three years and one half wanting three
days from thence next enfuing and fully to be complete and
ended; by virtue of which faid demife he the faid plaintiff after-
wards, and before the faid time when, &c. in the faid firft Count
mentioned, to wit, on, &c. at, &c. entered into and upon the
faid clofe fo to him demifed as aforefaid, and in which, &c. with
the appurtenances, and became and was thereof poffeffed for the
faid term so thereof demised to him as aforefaid, and fo remained
and continued from thence until and at the faid time when, &c,
in the faid firft Count of the faid declaration mentioned, when
they the faid defendants, of their own wrong, broke and entered
the faid close in the faid firft Count of the faid declaration men-
tioned, and trod down, trampled upon, confumed, damaged, and
fpoiled the grafs there growing and being, and pulled down, threw
down, proftrated, and deftroyed the faid erection or building in
that Count mentioned, and the materials thereof took and carried
away, and dug up and fubverted, raifed, and fpoiled the foil and earth,
together with other the grafs there respectively growing and being,
and erected and built, and caufed and procured to be erected and
built part of the faid meffuage or dwelling-houfe in the faid first
Count mentioned in and upon the faid clofe, and expelled, put out,
and amoved the faid plaintiff from and out of the poffeffion, ufe, and
occupation of part of his faid clofe, and kept and continued him
fo expelled, put out, and amoved, and the faid part of the faid
meffuage or dwelling-houfe fo erected and built on the faid clofe
as aforefaid for the said space of time in the faid first Count men-
tioned in manner and form as the said plaintiff hath above thereof
complained againft them; and this he is ready to verify; where-
fore inasmuch as the faid defendants have above acknowledged
the faid trespass, he the faid plaintiff prays judgment and his da-
mages, by him fuftained on occafion of the committing thereof,
to be adjudged to him, &c.
SAM. SHEPPERD.

did

And the faid defendants, as to the faid plea of the faid plaintiff Rejoinder, that by him above pleaded by way of reply to the faid plea of the faid defendant defendants by them laftly above pleaded in bar as to the breaking, not demife &c. above fuppofed to have been committed by the faid defendants, fay, that the faid plaintiff, by reason of any thing in his faid plea fo by him pleaded by way of reply as aforefaid alledged, ought not to have his aforefaid action thereof maintained again.ft thein; because

K 4

(a) Declaration, plaintiff

because they say, that he the faid H. did not demife, leafe, fet, or to farm-let unto the faid plaintiff the faid clofe in the said first Count in the faid declaration mentioned in which, &c. with the appurtenan ces, in manner and form as the faid plaintiff hath above in that behalf alledged, and of this they put themselves upon the country, &c. and the faid plaintiff doth the like, &c. therefore as well to try this iflue as the faid other iffue above joined between the said parties, let a jury come before our lord the king at Westminster on Monday, &c. by whom, &c. who neither, &c. to recognize, &c. because as well, &c. the fame day is given to the parties there, &c.

DOOLER was against

CHESHIRE, to wit. Thomas Simcock, late of, &c. was attached to anfwer William Dooler in a

poffeffed of SIMCOCK. plea of trefpafs on the cafe; and thereupon the faid S

lands which he

that were grow

Thomas here.

been, and itill is

let to defendant William, by A. B. his attorney, complains, (1) that whereas, as tenant at will; before and at the time of the committing the grievance hereafter defendant cut next mentioned, he the faid William was and from thence hitherto down the trees hath been, and still is feifed in his demefne as of fee of and in ing, and def divers lands, with the appurtenances, fituate, &c. in the parish of, troyed the &c. in the faid county of Cheshire, which faid lands before and at hedges, &c. &c the time of commit.ing the grievance hereafter next mentioned, were (1) andwhere and from thence hitherto have been, and still are in the poffeffion of as the faid the faid Thomas as tenant thereof, to wit, as tenant from year to, tofore, to wit, year thereof to the faid William at and under a certain yearly rent on, & c. was of twenty pounds, payable by the faid Thomas to the faid William for and from thence the fame; yet the faid Thomas contriving, &c. the faid William hitherto hath in his faid (2) eftate and intereft of and in his faid lands, with the the occupier and appurtenances, whilst he the faid Thomas was fo poffeffed of poff ffor of cer the faid (3) lands, with the appurtenances, and whilft he the faid tan other lands, Willian was fo feifed thereof as aforefaid, to wit, on, &c. and with the appur between the time and the commencement of this fuit at, &c. wrong. tenances, of the fully and unjustly cut down, pulled down, dug up, rooted up, fitute in the proftrated, and deftroyed, and wrongfully and unjustly caufed and par fhondcounty fuffered to be cut down, &c. divers large quantities of withies aforefaid, as and willows, to wit, five hundred withies and five hundred willows tenant thereof to there then growing and being on a certain part of the faid (4) William, who lands, and feparating, dividing, and defending the fame from a during all the certain large pit on the other fide thereof, and thereby then and there time aforcfaid left the fame open to the faid pit, and then and there wrongfully was and still is and unjustly dug up, tore up, rooted up, fubverted, damaged, and entitled to the deftroyed, and wrongfully and unjustly caufed and procured to be of next and im dug up, &c. a large quantity of the hedges and fences there then media.ely after refpectively growing and being, and of and belonging to the faid the determina (s) lands and to the freehold thereof, to wit, fifty perches (6) on of the fad of a certain hedge there then growing and being on a certain part faid of the faid lands, and feparating and dividing the fame from certain Thomas ;" large common or waste lands thereto contiguous and adjoining, and (2) reverfionary intereft." (3) "last-mentioned" (4) "laft-mentioned" (5)" laft-mention. ed" (6) " of the hedges"

faid William,

him the faid

reverfion there

tenancy thereof

of the

(a) This is a declaration in Tort to Corporeal Rights in nature of wafte, and not merely Trefpafs, therefore misplaced. (See Index to Tort, Vol. VIII.

divers,

tioned'

tioned"

divers, to wit, fifty perches of other the hedges, and fifty perches of other the fencing of and belonging to the faid (7) lands, with the appurtenances, and thereby then and there left and laid open the fame respectively, and then and there took and carried away the faid withies and willows, and the materials of the faid hedges and fencing, to wit, ten cart loads of wood, ten cart loads of bufhes, and ten cart loads of underwood of the faid Willian of a large value, to wit, of the value of one hundred pounds of lawful money of Great Britain, and converted and difpofed thereof to, his own ufe, to wit, at, &c.; whereby and by reafon of which faid feveral (8) premises, the said William was and ftill is greatly injured and damnified in his faid eftate and intereft of and in his (8)" laft-menfaid (9) lands, with the appurtenances, to wit, at, &c. &c.: And (9) "reverfionwhereas, &c. &c. [Go on with the fecond Count fame as the ary interest in firft, omitting the parts in Italic, and inferting what is in the the faid laftmargin:] And whereas alfo the faid William heretofore, to wit, mentioned" on, &c. was lawfully poffeffed of divers other goods and chattels, 3d Count. to wit, one hundred timber trees, one hundred other withies, one hundred other willow trees, one hundred other trees, ten other cart loads of bushes, ten other cart loads of underwood, and ten other cart loads of wood of a large value, to wit, of the value of one hundred pounds of like lawful money of Great Britain as of his own proper goods and chattels; and being fo poffeffed thereof, he the faid William afterwards, to wit, on, &c. cafually loft the faid goods and chattels out of his hands and poffeffion, and they afterwards, to wit, on, &c. at, &c. came into the poffeffion of the faid Thomas by finding; yet the faid Thomas well knowing the faid goods and chattels to be the goods and chattels of the said William, and to him of right to belong and appertain, but contriving, &c. the faid William hath not as yet delivered the faid goods and chattels or any part thereof to him the faid William, although often requested fo to do; but on the contrary, the said William faith, that the faid Thomas afterwards, to wit, on, &c. at, &c, converted and difpofed of the faid goods and chattels to his own use, to the damage of the faid William of two hundred pounds; and therefore he brings his fuit. V. LAWES.

CASE. Defendant, being tenant from year to year to plaintiff, committed walte (ortrefpafs) in cutting down feveral withies or willows, and also a hedge, thereby laying the freehold open to the wafte land, though that front of the estate to which the freehold is now laid open has been lately inclofed. Note. The withies or willows grew along the fide of a pit, and were a defence against the fame, and the hedge only to the waste. Plaintiff unadvifedly fince the damage was done, and a little time before the writ was fued out, received half a year's rent due the twenty-fifth of March.

Qu. Is the damage above flated fufficient to maintain an action, and if fo, is the plaintiff's acceptance of the rent a bar to the fame or not, and if not, how would you advise the plaintiff to declare, whether in action of trefpafs on the cafe or wafte, defendant being little more than tenant at will, viz. from year to year under no particular agreement, but a certain rent, or how otherwife would you advife the plaintiff to proceed?