Et boc, &c. conely in bar. Replication as to break ing, &c. the refidue of the faid clofes. fefles that C. and by his faid declaration complained against them; and this he is ready to verify: wherefore, in as much as the faid Jofeph Edward Whitley, and Peter Bennett, have above acknowledged that trefpafs above done, he the faid John Johns prays judgment and his damages, on occafion And as to the of that trefpafs, to be adjudged to him, &c. and as to the fame plea fe- faid plea of the faid Jofeph Edward Whitley, and Peter Bennett, fecondly above pleaded in bar, as to the said breaking and entering of the refidue of the faid clofes in the faid declaration mentioned, and which, &c. and treading down, confuming and fpoiling the grafs there lately growing, with feet in walking; and eating up, treading down, confuming and fpoiling the faid other grafs there alfo lately growing, with the faid cattle in the faid declaration mentioned; and with the wheels of carts, waggons and other carriages, tearing up, turning up, fubverting and fpoiling the foil of thofe clofes above done; fays that lie, by any thing above in that plea alledged, ought not to be barred from having his aforefaid action thereof maintained against them; Plaintiff con- becaufe he fays, that true it is, that the faid Chriftopher Harris fellesared Efq. was feifed in his demefne as of fee, of and in the faid clofes in fee, and in this replication above particularly mentioned, refidue, &c. in the rest of the which, &c. and demifed the fame to the faid John Knight, for plea to the the faid term in the faid plea in that behalf mentioned, comdelivering up poffeffion of mencing and determinable as therein' is mentioned; and that the the refidue of faid Edward Mitchel afterwards died; and that upon his death, the clofes to the faid eftate, fubfifting of and in thofe clofes, refidue, &c. and the plaintiff. in which, &c. at the time of the making of the faid demife to the faid John Knight, ceafed and determined: and that the faid John Knight entered upon thofe faid closes, refidue, &c. and in which, &c. and was poffeffed thereof for the faid term, fo thereof demifed to him as aforefaid, determinable as aforefaid; and being fo thereof poffeffed, the faid Mary Knight died, and that the faid John Knight being fo poffeffed of the faid clofes above in this replication mentioned, for the term aforefaid, determinable as aforefaid, he the faid John Knight made his laft will and teftament in writing, and thereby conftituted and appointed the faid Peter Kmight executor thereof, and afterwards there died, fo poffeffed of thofe closes, parcel, &c. and that by means of the faid premifes, the faid Peter Knight entered into thofe clofes, refidue, &c. and in which, &c. and was poffeffed thereof for the refidue of the faid term, determinable as aforefaid; and being fo poffeffed thereof, he the faid Peter Knight demifed the faid clofes above in this replication particularly mentioned, in which, &c. refidue, &c. with the appurtenances, to the faid Jofeph; and that by virtue thereof the faid Jofeph entered into thofe clofes, and was thereof poffeffed; and that the faid Peter Knight died; and fore and at the time of and that thereupon the faid demife, fo made by the faid Peter Knight to the faid Jofeph as aforefaid, ceafed and determined, and the faid Jofeph quitted and delivered up the poffeffion of those clofes to the faid John Johns, to whom the fame then belonged, as the faid Jofeph, Edward Whitley, and Peter Bennett, have above in their faid plea in bar alledged; but the faid John Johns but that the further fays, that the faid John Johns, before and at the time of plaintiff, bethe end and determination of the faid term of ninety-nine years, the end of the and alfo before and at the time of the faid Jofeph's faid quitting faid leafe of and delivering up of those clofes above in this replication par- 99 years, and ticularly mentioned, parcel, &c. and in which, &c. was and before and at ftill is feifed in his demefne as of fee, of and in those clofes, defendant refidue, &c. and in which, &c. and that the faid Jofeph, Ed- Whitley's ward Whitley, and Peter Bennett at the faid feveral times when, quitting poffeffion, was, &c. of their own wrong, broke and entered thofe clofes in this and ftill is replication above particularly mentioned, refidue of the faid clofes feifed in fee; in the faid declaration mentioned, and in which, &c. and trod and that defendants, de down, confumed and spoiled the faid grafs there then growing, injuria fua, with feet in walking; and eat up, trod down, confumed and propria, did fpoiled the faid other grafs there alfo then growing, with the the trespaís, faid cattle in the faid declaration mentioned; and with the wheels of the faid carts, waggons and other carriages, tore up, turned up, fubverted and spoiled the faid foil of thofe clofes in which, &c. in manner and form as the faid John Johns hath Traverse, that above thereof complained against them; without this, that the P. K. was faid Peter Knight was living at the time when the faid Jofeph fo living at the ploughed thofe clofes, and fowed the fame with corn, as the time when faid Jofeph, Edward Whitley and Peter Bennett, have above ploughed, &c. in pleading, in that behalf alledged; and this he is ready to verify: wherefore, in as much as the faid Jofeph, Edward Whitley, and Peter Bennett, have above acknowledged the faid trespass above done, he the faid John Johns prays judgment and his damages, by reafon thereof, to be adjudged to him, &c. J. Burland. Whitley And the faid Jofeph Whitley, Edward and Peter Bennett, Rejoinder, as to the plea of the faid John Johns, by him above pleaded in reply, as to the faid plea of the faid Jofeph Whitley, Edward and Peter Bennett, fecondly above pleaded in bar, as to the breaking and entering the faid clofes, called Well Park, and Three Pieces, otherwife The Three Pieces, parcel of the said clofes in the faid declaration mentioned, and in which, &c. and treading down, confuming and fpoiling the faid other grafs there lately growing, with feet in walking, and eating up, treading down, confuming and fpoiling the grafs there alfo lately growing, with the faid cattle in the faid declaration mentioned, and with the wheels of carts, waggons, and other carriages, tearing up, turn Jede for 99 years; and that C. H. deviled the reverlion to W. H. and that W. H. bargained, fold and releafed the fame to the plaintif and conte Tes the reft of the first part of the replica tion. ing up, fubverting and spoiling the foil of those closes, by them Confeffer the above fuppofed to be done, fay, that true it is, that in and by pro fo in the the faid indenture of leafe from the faid Chriftopher Harris to the fand John Kaight, it is provided in manner and form as in the laid plea of the laid John Johns firft above pleaded, by way of reply is alledged, and that the faid Chriftopher Harris did devife the faid reverfion of and in the faid clofes, in which, &c. to the faid William Harris and his heirs, and afterwards died feifed of the faid reverfion, upon whofe death the faid reverfion, by virtue of the faid devife, came to the faid William Harris, and that the faid William Harris thereupon became feifed of the faid reverfion in his demefne as of fee, and being fo feised thereof, bargained, fold, and releafed the faid reverfion to the faid John Johns and his heirs, and that the faid John Johns by virtue thereof, and by force of the ftatute for transferring ufes into poffeflion, became and was feifed as of fee, of and in the faid whole reverfion, with the appurtenances, and from thence until, and at the time of the determination of the faid demife of the faid feveral clofes, in which, &c. to the faid John Knight, was, and continued fo feifed thereof, and immediately from and after the determination of the faid demife of the faid feveral clofes, in which, &c. to the faid John Knight, became, and was, and. yet is felfed in his demefne, as of fee of and in the faid feveral clofes, in which, 3c. and that the faid Peter Knight, at the time of the making of the faid demife, by the faid Peter Kaight to the faid Jofeph, in the faid plea mentioned, or at any time before or after, had not any licence in writing from the faid Chriftopher Harris, his heirs or affigns, to fet or let the said deveral cloles, in which, &c. or any part thereof to the faid ph, or any other perfon or perfons, to tillage, in manner and But defend form as in the faid plea first above pleaded in reply is alledged, ants fay, that but that the laid Jofeph Whitley, Edward and Peter Bennett the plaintiff further fay, that the faid John Johns did not at any time during enter during the faid term fo demifed, by the faid Chriftopher Harris, to the term ad- the faid Jan Knight as aforeíaid, re-enter into the faid demifed did not re At the premifes, with the appurtenances, or any part thereof, and this the laid Joseph Whitley, Edward and Peter Bennett are ready to verify; wherefore they pray judgment if the said John Jokay ought to have or maintain his faid action thereof, against echer part of them, &C. And the lad jiept Wkrien, Edward and Peter Ben, as to the fad plea of the faid John Johns, by him above by endploaded in reply, as to the faid plea of the laid Joseph Whitley, Edwara and Poter Bennett, fecond‚vabove picaded in bar, as to the faid breaking and entering of the vekame of the faid closes, in the fard declaration mentioned, and in which, &c, and treading down, taming sad spoiling the grais there lately grewing, with feet an walking, and eating app, treading down, contaming and spoil. ing the ra d other grais there allò lately growing, with the faid cat that at the εἰς tle in the faid declaration mentioned; and with the wheels of carts, murrer to the Three Pieces. And the faid John Johns, as to the faid plea of the faid Jo- General defeph Whitley, Edward and Peter Bennett, above pleaded by rejoinder, as way of rejoinder to the faid plea of the faid John Johns, to the clofes above pleaded, in reply to the faid plea of the faid Jofeph called WallWhitley, Edward and Peter Bennett, fecondly above pleaded in park, and The bar, as to the breaking and entering the faid clofes, called Well Park, and Three Pieces, otherwife The Three Pieces, parcel of the faid clofes, in the faid declaration mentioned, and in which, &c. and treading down, confuming and spoiling the grass there lately growing, with feet in walking, and eating up, treading down, confuming and fpoiling the faid other grafs, there lately growing, with the faid cattle, in the faid declaration mentioned, and with the wheels of carts, waggons and other carriages, tearing up, turning up, fubverting and fpoiling the foil of thofe clofes, by them above done, fays, that that plea fo pleaded by way of rejoinder, and the matter therein contained, are not fufficient in law to bar the faid John Johns, from having his aforefaid action thereof, maintained against the faid Jofeph Whitley, Edward and Peter Bennett, and to which faid plea fo pleaded, by way of rejoinder, in manner and form as the fame is above pleaded, he the faid John Johns has no occasion, neither is he bound by the law of this realm to anfwer, and this he is ready to verify : wherefore, for want of a fufficient rejoinder in this behalf, he the faid John Johns, as before, prays judgment and his damages, on occafion of that trespass, to be adjudged to him, &c. J. Burland. And the faid Jofeph Whitley, Edward and Peter Bennett, Joinder in for that the matter aforefaid, by them above by rejoining al. demurter. ledged (which they are ready to verify, as the court here thall order) is fufficient in law, to bar the faid John Johns from having his faid action against them, the faid Jofeph, Edward and Peter Bennett, which faid matter the faid John Johns hath not denied, nor any ways anfwered thereto, but entirely refufeth to admit the verifying the fame, pray judgment, and that the fame John Johns may be barred from having his faid action against them, &c. And because the juftices here will Curia adadvife themselves of, and upon the premises before they give vifare vult. 2 judgment г Co. Lit. 218. A provifo in alcafe to reenter for a condition broken, can judgment thereon, day is given to the said parties here, until in eight days of Saint Martin, to hear their judgment, for that the faid juftices here are not yet advifed thereof, &c. This cafe was argued November 23d, 1770, by Serjeant Bur land for the plaintiff, and Serjeant Glynn was prepared and ready to have argued for the defendants. The question upon the pleadings, for the confideration of the court was, whether the defendant Whitley had a right to enter, after the determination of the term of 99 years, by the death of Peter Knight, and take the emblements of thofe clofes which he (Whitley) had ploughed and fowed, while his intereft at will subfifted, and in the life-time of Peter Kmight, notwithstanding the provifo that it should be lawful for Chriftopher Harris (the leffor of the 99 years term), his heirs and afligns, to re-enter into the clofes in which, &c. if the fame fhould be let to tillage, without licence in writing from the faid Chriftopher Harris, his heirs or affigns, first had and obtained; as neither the faid Chriftopher Harris, his heirs or affigns, (or the plaintiff) entered before the determination of the faid term of 99 years, for the breach of the faid provifo or condition therein, by ploughing and sowing the clofes in question. It was faid by Serjeant Burland, that if the leffor, his heir or affignee (the plaintiff) had entered for breach of the condition, before the determination of the 99 years term, the defendant would certainly have had no right to re-enter and take the emblements; and that although the plaintiff did not enter during the term for the condition broken, but entered only at the determination of the term, it fhall have the fame effect as if he had entered for the condition broken, and he, being in by law, fhall take advantage of the breach of the condition, and the defendant fhall not have the emblements, and take advantage of his own wrong. Curia. The provifo could only operate during the continu ance of the leafe; when that was determined, the provifo was vanished and gone; and the plaintiff having never been in poffellion by right of re-entry for the condition broken, can have only operate no advantage thereof; and the defendant who ploughed and fowed the land, has in law and justice, a right to reap and take the emblements. during the term, and vanithes when that Judgment for the defendant. Lloyd |