when, &c., or either of them, of right to have had, nor ought he still of right to have, common of pasture for his commonable cattle, levant and couchant, in and upon his said messuage and lands with the appurtenants in the said places in the said declaration mentioned (n), or either of them, or any part thereof, every year and at all times of the year, as to the said messuage and land with the appurtenants in the declaration first mentioned belonging and appertaining, in manner and form as the plaintiff hath above alleged; and of this the defendant puts himself upon the country, &c.

COPYRIGHT. (0)

1. Plea denying the Copyright.

Commencement, ante, 21 or 24.] And for a further plea in this behalf the defendant says, that the plaintiff was not at the said times, when, [&c.], or either of them, the proprietor of a subsisting copyright in the said book in the said declaration mentioned, or any part thereof, as in the said declaration alleged; and of this the defendanl puts himself upon the country, &c.

2. That the Title of the Book was an Attempt to impose it on the Public as the Production of a celebrated Author, who had not written it.

Wright v. Tallis, 1 Com. B. 893.

CRIM. CON. See "Husband and Wife," post, 651.

DE INJURIA REPLICATION.

The form will be as in "Trespass," post, substituting "grievances" for "trespasses."

DISTRESSES.

OBS. By 11 Geo. 2, c. 19, s. 21, cited fully, ante, 441, obs., landlords and bailiffs, when sued for making a distress, or a seizure or sale thereon, may plead the general issue and give the special matter in evidence. This does not extend to a distress made off the premises upon goods fraudulently removed; Vaughan v. Davis, 1 Esp. R. 257; Furneaux v. Fotherley, 4 Camp. 136; Postman v. Harrell, 6 C. & P. 225. But it renders the plea of not guilty "by statute" (ante, p. 442,) sufficient in actions on the case for irregularities or excesses committed in making or conducting a distress or sale of goods seized upon the premises demised, and that plea puts in issue the tenancy and the ownership of the goods; Williams v. Jones, 11 A. & E. 643. The tenancy may however be disputed by a separate plea, Yates v. Tearle, 6 Q. B. 282; and to an action against a landlord for not giving a copy of the charges, he may plead that he did not personally interfere with the distress; Hart v. Leach, M. & W. 560. Plea that the whole rent distrained for was due; Gambrell v. Eurl of Falmouth, 4 A. & E. 73. Where there is a count in trover, upon which the validity of the distress ab initio is disputed, the plea of not guilty by statute will be sufficient by virtue of 11 Geo. 2, but a special plea may sometimes be judicious; see post, "Pleas in Trespass-Distresses." The defendant will not be allowed to plead not guilty by statute, and also justifications which exist either at common law or under the statute; Ross v. Clifton, 11 A. & E. 640; ante, p. 442, obs. It will be proper to pay money into Court upon any count or part of a count for an excess or irregularity really committed.

1. Plea to a Count for not leaving the Overplus with the Sheriff, that there was no Overplus.

See form, Lyon v. Tomkins, 1 M. & W. 603; though not guilty "by statute" would suffice. If the overplus were paid to the plaintiff, plead accord and satisfaction, ante, 643. If there was an overplus not paid before action, it should be paid into Court.

2. Plea of Tender of Amends to a Declaration for an irregular Distress. (p)

Commencement, ante, 21 or 24.] -Saith, that after the committing of the said supposed grievances in the said declaration mentioned, and before the

(p) By 11 Geo. 2, c. 19, s. 20, the tenant shall not recover in case for an irregular distress, where there was a right to distrain, if tender of sufficient amends have been made before action brought. In Williams v. Price,

3 B. & Ad. 695, where in trespass the defendant pleaded that he tendered a certain sum, being a sufficient amends, it was held that the plaintiff should reply that the defendant did not tender the sum named, or

commencement of this suit, to wit, on [&c.], the defendant tendered and offered to pay to the plaintiff the sum of £- in full satisfaction of, and as

and for amends for the said supposed grievances, the said sum then being sufficient amends to the plaintiff for the said supposed grievances, to accept and receive which said sum of money the plaintiff then wholly neglected and refused; and this the defendant is ready to verify, &c.

DOGS. See "Mischievous Animals."

Plea justifying setting dog spears, Jordin v. Cross, 8 M. & W. 782.

EASEMENTS, ante, p. 545, and p. 639.

ESCAPES.

OBS. See ante, 545, tit. "Escapes." "In actions for an escape, not guilty will operate as a denial of the neglect or default of the sheriff or his officers, but not of the debt, judgment or preliminary proceedings;" New Rules on Pleading. The escape itself would therefore be in dispute under that plea. As to what is an escape, see Rosc. Evid. 6th ed. 611. Therefore there must be separate special pleas denying, 1. The allegations of the debt stated to be due from the defendant in the original action; 2. The affidavit for the award; 3. The judge's order thereon; 4. The writ of capias issued thereon; 5. The indorsement on it; 6. Its delivery to the sheriff to be executed; as to which, see Woodland v. Fuller, 11 A. & E. 859; and 7. The arrest itself; where any such matter of inducement is meant to be put in issue. See forms 3 Chit. Pl. 262 to 267. A plea of recaption must be special, see 8 & 9 Will. 3, c. 27, s. 6; Jackson v. Hill, 10 A. & E. 477. In an action for an escape on final process, the defendant may plead the four last pleas, and also deny the judgment, which he may impeach, if the original debtor could have done so; Lane v. Chapman, 11 A. & E. 966.

1. Plea to an Action against the Sheriff for an Escape, or for not taking a Person on Mesne Process, that he was not indebted to Plaintiff. (q)

Commencement, ante, 21 or 24.] And for a further plea in this behalf the defendant saith that the said E. F. was not before or at the time of the issuing of the said writ of capias in the said declaration mentioned indebted to the plaintiff in the said sum of £- or any part thereof, in manner and

that the sum was insufficient, and not that he did not tender sufficient amends; and see per Tindal, C. J., Markes v. Lahee, 3 Bing. N. C. 418. See plea, post, "Tender," and note there as to paying money into Court.

(q) See Baker v. Fenn, 2 Esp. R. 476; Alexander v. Macauley, 4 T. R. 611; Rosc. Evid. 6th ed. 610. The admission of the debt by the defendant in the original action before the escape is good evidence against

the sheriff; Rogers v. Jones, 7 B. & C. 86; Williams v. Bridges, 2 Stark. R. 42. The same evidence which would fix the debtor in an action against him for the debt will be sufficient against the sheriff; Sloman v. Herne, 2 Esp. R. 695; Gibbon v. Coggon, 2 Camp. 188. As to whether the sheriff can reduce his liability by any equities which the defendant would have had against the plaintiff, Evans v. Maners, 9 Dowl. 256.

form as the plaintiff hath above alleged; and of this the defendant puts himself upon the country, &c.

2. Plea to Case against the Sheriff for an Escape on Mesne Process that he took a Bail Bond which he assigned to the Plaintiff. See Holden v. Raphael, 4 Ad. & E. 228; Mendez v. Bridges, 5 Taunt. 325.

3. Plea that the Escape was by the Fraud, &c., of the Assignee of the Judgment.

Hiscocks v. Jones, 1 M. & Mal. 260; and see Merry v. Chapman, 10 A. & E. 516.

4. Plea that the Escape was without the Knowledge of the Defendant, and that the Debtor voluntarily returned to Custody.

Form held bad for not averring that the defendant was ignorant of where the debtor was during any period of his absence; Davis v. Chapman, 5 Bing. N. C. 453; and see 2 M. & G. 921; S. C. 9 Dowl. 645.

5. Plea showing that the Custody of the Prisoner was not legal. Constant v. Chapman, 2 Q. B. 771.

6. Plea that the Debtor was discharged by a Bankrupt Commissioner under 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96.

Thomas v. Hudson, 14 M. & W. 353.

The attorney of the execution creditor has no authority to authorize the discharge; Savory v. Chapman, 11 A. & E. 829.

FAIRS. See "Markets."

FALSE REPRESENTATION. See "Fraud."

FRAUD.

OBS. Effect of not guilty in actions for fraudulent warranty, &c., ante, 639. See the declarations, ante, 547, &c. In an action for falsely representing a third person to be trustworthy, (ante, 555, Form 16), the defendant cannot plead specially that the representation was not in writing and signed by the defendant ac cording to 9 Geo. 4, c. 14, s. 6; Turnley v. M'Gregor, 6 M. & G. 46. See

the observations, ante, p. 223, and p. 227, " Frauds, Statute of." See several pleas in Lyde v. Bernard, 1 M. & W. 101; and Langridge v. Levy, 2 M. & W. 519; but semble they all amount to not guilty.

Plea denying the Bargain and Sale in Case for a false Warranty or fraudulent Misstatement. (r)

Commencement, ante, 21 or 24.] Saith that the plaintiff did not bargain with the defendant to buy of him, nor did the plaintiff buy of the defendant, the said in the declaration mentioned, upon the terms in the said declaration specified, in manner and form as the plaintiff hath above alleged; and of this the defendant puts himself upon the country, &c.

GENERAL ISSUE. See "Not Guilty," ante, 642.

HOUSES. See “Nuisances,” “Reversion."

HUNDRED.

Pleas in an Action against the Hundred for Damage done by

Rioters.

the

The defendants might plead denying the riot, the beginning to demolish, &c., examination of plaintiff before a justice, or his entering into recognizances to prosecute. They might also plead that though plaintiff knew one of the rioters, he did not disclose his name to the justice, or that the damage did not exceed 30l. See several of these pleas, Birley v. Sulford Hundred, 11 M. & W. 391.

HUSBAND AND WIFE-CRIM. CON.

Plea denying that the Plaintiff was Married. (s)

Commencement, ante, 21 or 24.] And for a further plea in this behalf, the defendant says that the said [Mary] was not at any or either of the said

(r) See form, &c., Shepherd v. Pybus, 3 M. & G. 870; and another traverse" that defendant did not by warranting the said horse sound, &c., cause and procure plaintiff to agree to sell, &c.;" sed qu. as to this latter plea, ante, obs. p. 639.

(s) Effect of not guilty, ante, 640. Under the above plea denying the marriage, a marriage in fact must be proved; Catherwood v. Caslon, 13 M. & W. 261. See 2 Stark. Ev. 3d ed. 352, tit. "Crim. Con." If the de

fence be that the plaintiff connived at and consented to the intercourse, plead leave and license as post, "License," see Hodges v. Windham, Peak. R. 39; Duberley v. Gunning, 4 T. R. 655. Under not guilty, evidence in mitigation of damages may be received; see 2 Stark. Ev. tit. " Crim. Con." As to separation of the husband and wife being a defence, Harvey v. Watson, 2 D. & L. 343.