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país quare claufa frege

runt, and

trod down

the grafs and corn, and reaped, cut down and

the grafs and

corn.

Count in tref- against the peace of our lord the now King, &c. And there. upon the faid John, by John Kimber his attorney, complains; for that the faid Jofeph, Edward and Peter, on the first day of July, in the year of our Lord one thoufand feven hundred and and confumed fixty eight, and on divers other days and times between that day and the first day of October then next following, with force and arms broke and entered the clofes, (to wit) one clofe called Wall Park, one other clofe called Three Pieces, otherwife The carried away Three Pieces, one other clofe called Dinny Bowl, one other close cailed Lane End, one other clofe called Bove Town, and fix other clofes of the faid John, in the parish of St. Winnow aforefaid, in the faid county of Cornwall, and trod down, confumed and spoiled the grafs and corn, (to wit) wheat, barley and oats, of the faid John, of the value of ten pounds, then there growing, with feet in walking; and eat up, trod down, confumed and spoiled, other the grafs and corn, (to wit) other wheat, barley and oats of the faid John, of the value of other ten pounds, there then growing, with certain cattle, (to wit) with horfes, mares, geldings and oxen, and reaped, mowed, cut down and felled other the grafs and corn, (to wit) other wheat, barley and oats of the faid John, of the value of one hundred pounds, there then ftanding, growing and being, and took and carried away the fame, and converted and difpofed of the fame to their own ufe; and with the wheels of carts, waggons and other carriages, tore up, turned up, fubverted and fpoiled the foil, (to wit) five hundred perches of the foil of the faid John, in and of the faid clofes; and alfo for that the faid Jofeph, Edward and Peter, on the faid first day of July, in the year of our Lord one thousand feven hundred and fixty-eight aforefaid, and on divers other days and times between that day and the first day of October then next following, with force and arms, at the parish of St. Winnow aforefaid, mowed, reaped, cut down and felled, other the grafs and corn, (to wit) other wheat, barley and oats of the faid John, of the value of other one hundred pounds, there then landing, growing and being, and took and carried away the fame, and converted and difpofed thereof to their own ufe; and alfo for that the faid Jofeph, Edward, and Peter, on the faid firft day of July, in the year aforefaid, and on divers other days and times between that day and the faid first day of October then next following, with force and arms, at the parifh of St. Winnow aforefaid, feized, took and carried away, other the grafs and corn, (to wit) one hundred cart loads of other grafs, one hundred cart loads of other wheat in the straw, one hundred cart loads of other barley in the ftraw, and one hundred cart loads of other oats in the straw, of the faid John, of the value of other one hundred pounds, there then found, and converted

2d Count for

mowing, reaping and

carrying away other grafs and corn.

3d Count to the like ef

fe&t.

and

and difpofed thereof to his own ufe, and did other wrongs to the faid John, to the great damage of the faid John, and against the peace of our faid lord the now King; wherefore the faid John fays, that he is injured, and hath fuftained damage to the value of one hundred pounds, and therefore he brings his fuit, &c.

iffue to the

breaking the

grafs and

carts, &c.

Defendants

And the faid Jofeph, Edward and Peter Bennett, by Francis John Hext their attorney, come and defend the force and injury, Ift Plea. when, &c. and fay, that they are not guilty of the trefpafs afore- The general faid, above laid to their charge, in manner and form as the faid whole decla John hath above thereof complained against them, and of this ration. they put themfelves upon the country, &c. And for further plea as to the breaking and entering the faid clofes, in the faid 2d Plea in declaration mentioned, in which, &c. and treading down, con- bar, as to fuming and spoiling the grafs there lately growing, with feet in clofes in the walking and eating up, treading down, confuming and spoiling the declaration, faid other grafs there alfo lately growing, with the faid cattle in the foiling the faid declaration mentioned, and with the wheels of carts, waggons eating up and other carriages, tearing up, turning up, fubverting and spoiling other grafs, the foil of the faid clofes, by the faid Jofeph, Edward and Peter and Bennett, above fuppofed to have been done, they the faid Jofeph, spoiling the Edward and Peter Bennett, by leave of the court here to them for foil of the this purpose granted, according to the form of the ftatute in fuch faid clofes. cafe lately made and provided, fay that the faid John ought not fay, that one to have his aforefaid action thereof against them; becaufe, they P. K. before fay, that before any of the faid times when, &c. one Peter Knight the time, was lawfully entitled to the faid clofes, in which, &c. for the re- when, &c. mainder of a term of ninety-nine years, determinable upon the to faid clofes death of him the faid Peter Knight; and being fo entitled thereto, for the rehe the faid Peter Knight, before any of the faid times when, &c. mainder of a (to wit) on the fecond day of February, in the year of our Lord one thousand seven hundred and fixty-feven, at the parifh afore- terminable faid, demifed the faid clofes in which, &c. with the appurte- of the faid nances, unto the faid Jofeph; to have and to hold the fame un- P.K, who to the faid Jofeph, from thenceforth for the space of one whole demifed the year then next following, and fo from year to year, for fo long defendant time as it fhould pleafe the faid Peter Knight and the faid 70- Whitley. feph, and the eftate and intereft of the faid Peter Knight fhould To hold the continue therein, by virtue of which faid demife he the faid fame for one Jofeph afterwards, and before any of the faid times when, from year to B. (to wit) on the faid fecond day of February, in the year of year as long our Lord one thousand seven hundred and fixty-feven, at the as it should parish aforefaid, entered into the faid clofes in which, &c. with please the faid J. K.

was entitled

term of 99

years, de

on the death

fame to the

year and fo

and defendant

J. W. and the estate and interest of said P. K. fhould continue therein. By virtue of which demise the faid J. entered and was poffeffed, the faid P. K. then being living, and his intereft ftill continuing therein. And being fo poffeffed, the faid J. before the times when, &c. ploughed and fowed the faid clofes with corn. And the faid P. K. after the faid J. had fo ploughed and towed, and before he had reaped and carried away the corn, and before the end of the faid 99 years, and before the faid time when, &c. died. And fo the defendants juftify the entering into the clofes, and reaping and carrying away the corn, and excufe themselves for treading, &c. a little grafs upon that occafion. the

F 2

the appurtenances, and became and was poffeffed thereof, the faid Peter Knight then being living, and the intereft of the faid Peter Knight fill continuing therein, and being fo poffefled thereof, and the faid Peter Knight then being living, and the intereft of the faid Peter Knight, then continuing in the faid close, in which, &c. he the faid Jofeph afterwards and before any of the said times when, &c. (to wit) on the twentieth day of March, in the faid year of our Lord one thoufand feven hundred and fixty-eight, ploughed the faid clofes in which, &c. and then and there fowed the fame with corn, (to wit) wheat, rye, barley and oats; and the faid Peter Knight, after the faid Jofeph had fo ploughed the faid clofes in which, &c. and fown the fame with corn, and before the faid Jofeph had reaped and carried away the faid corn, and before the expiration of the faid ninety-nine years, and before the faid time when, &c. (to wit) on the first day of July in the year laft aforefaid, at the parish aforefaid, (he the faid Peter Knight) died; and the faid corn, fo fown by the faid Joseph as aforefaid, not being reaped, the faid Jofeph in his own right, and the faid Edward and Peter Bennett as his fervants, and by his command, at the faid times when, &c. entered into the faid clofes in which, &c. in and by the ufual way there, in order to reap the faid corn fo fown by the faid Jofeph as aforefaid; and with the faid carts, waggons and other carriages, drawn by the faid cattle in the faid declaration mentioned, did enter into the faid closes in which, &c. in and by the ufual way there, in order to carry away the faid corn; and on those occafions they the faid Jofeph, Edward and Peter Bennett did unavoidably a little tread down, confume and fpoil the grafs there growing, with feet in walking; and the faid cattle in the faid declaration mentioned, in paffing and repaffing for the purpose aforefaid, by stealth and against the will of the faid Jofeph, Edward and Peter Bennett, did a little and by morfels, fnatch, eat up, tread down, confume and fpoil, other the grafs there alfo growing; and with the wheels of the faid carts, waggons and other carriages in the faid declaration mentioned, on that occafion neceffarily and unavoidably did a little tear up, turn up, fubvert and fpoil the foil of the faid clofes, doing as little damage on that occafion as they Quae eft cadem poffibly could; which are the fame breaking and entering the tranfgreffio. faid clofes in the faid declaration mentioned, and treading down, confuming and spoiling the grafs there lately growing, with feet in walking, and eating up, treading down, confuming and spoiling 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, fubverting and spoiling the foil of the faid clofes, whereof the faid John hath above complained against them, and this they are ready to verify; wherefore they pray judgment, if the faid John ought to have his aforefaid action thereof against them, &c.

J.Glynn.

And

And the faid John fays, that the faid plea of the faid Jofeph, Demurrer. Edward and Peter Bennett, above fecondly pleaded in bar, as to the faid breaking and entering the faid clofes, in the faid declaration mentioned, and in which, &c. and treading down, confuming and fpoiling the faid 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 the faid clofes, by the faid Jofeph, Edward and Peter Bennett above done, and the matters therein contained, are not fufficient in law to bar the faid John from having his faid action thereof maintained against the faid Jofeph, Edward and Peter Bennett; to which faid plea, and the matters therein contained, that he the faid John is not under any neceffity, nor in any wife bound by the law of this realm to anfwer; and this he is ready to verify: wherefore, for want of a fufficient plea in this behalf, the faid John prays judgment, and his damages by reafon of that trefpafs to be adjudged to him; and for caufes of demurrer in law to that Special causes plea, he the faid John, according to the form of the ftatute in of demurrer. fuch cafe made and provided, fhews to the court here thefe caufes 1ft, That defollowing, (to wit) for that the faid Jofeph, Eduard and Peter not fet forth Bennett, have not, in or by their faid plea, fet forth the parti- the comcular commencement of the term of ninety-nine years, under of the faid which the faid Jofeph, Edward and Peter Bennett, in and by term of 99 their faid plea have attempted to derive a title in the faid Jo. years, Jeph to enter into the faid clofes, in which, &c. and to plough and to fow the fame with corn and afterwards to take and carry away the faid corn; and alfo for that the faid Jofeph, Ed- 28. That deward and Peter Bennett, have not in or by their faid plea fet fendants have forth or fhewn that the faid Peter Knight, at the time of the that P. K. at making of the faid fuppofed demife of the faid clofes, in which, the time of &c. by the faid Peter Knight to the faid Jofeph, or at any time the demife to before, was poffeffed of the faid clofes, in which, &c. or any of or before was them but only that he was intitled thereunto; and for that poffeffed of the faid plea is vague, uncertain, infufficient, and wants faid closes, form, &c.

J. Burland.

fendants have

mencement

not shown

defendant J.

but only that he was intitled thereunto.

And the faid Jofeph, Edward and Peter fay, that the plea of Joinder in dethem the faid Jofeph, Edward and Peter, by them fecondly murier. above pleaded in bar, in manner and form above pleaded, and the matters therein contained, are fufficient in law to bar the faid John from having his faid action thereof maintained against them the faid Jofeph, Edward and Peter, which fame plea they the faid Jofeph, Edward and Peter are ready to verify and prove

For the plaintiff in Hilary term laft.

the com

as the court fhall direct; and because the faid John hath not anfwered to the faid plea, nor in any wife denied the fame, they the faid Jofeph, Edward and Peter pray judgment, and that the faid John may be barred from having his faid action thereof maintained against them. And because the juftices here will advife amongst themfelves what judgment to give in the premifes, before they give their judgment thereupon, day is therefore given to the parties aforefaid here, until in eight days of Saint Hilary, to hear their judgment thereupon, for that the faid juftices here are not yet thereof advised, &c.

This cafe of Johns against Whitley and others, was well argued in the last term by Burland one of the King's ferjeants for the plaintiff, and by Serjeant Glynn for the defendants; and it was argued again, in this term, by Serjeant Leigh for the defendants; and Serjeant Davy was counfel for the plaintiff, ready to have argued.

For the plaintiff it was argued, 1ft, That the plea in bar was ill, because the defendants have not fet forth therein the comIt is a rule in mencement of the term of ninety-nine years, viz. out of what pleading, that eftate it was derived; that it is an eftablifhed rule in pleading, mencement of that the commencement of all particular eftates ought to be all particular fhewn in pleas, avowries, replications, &c. and the reafon why eftates must the commencement of particular eftates must be fhewn in pleadpleading, un- ing, is, because they are created, by agreement, out of the primitive eftate; and the court muft judge whether the primitive eftate and agreement be fufficient to produce the particular eftate claimed; and this is a fundamental rule, (per Holt Chief Justice, in the cafe of Scilly verfus Dally, 2 Salk. 562.) which ought not to be broken, upon fancied inconveniencies.

be fhewn in

lefs in fome

cafes, where

they are alledged as matter of Inducement.

2dly, It was infifted that the bar was ill, because it fhews no title in Peter Knight, to enable him to demife to the defendant Whitley, whereupon a good iffue may be taken; or which may be well traverfed by the plaintiff; but the plea only alledges, that Peter Knight was lawfully intitled to the faid clofes, in which, &c. for the remainder of a term, which cannot be traversed; becaufe, whether intitled or not, is matter in law, not fact. See 1 Ld. Raym. 332. 2 Lutw. 1232. And if the plea had alledged that Peter Knight was lawfully poffiffed, it would ftill have been ill in this cafe, according to 2 Ld. Raym. 332. where the title, not the mere poffeffion, is the material point in queftion. Indeed, in the cafe of a perfonal trefpafs, where the title is not in question, it is otherwife; as in the cafe of Shevill verfus Avery. Cro. Car. 138. which was trefpafs, affault, battery and wounding:

the

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