LICENSE.

See plea and replication, &c., ante, 715, 716, obs.; and see the law on this subject, Wood v. Leadbitter, 13 M. & W. 828. A license to re-enter in case rent be unpaid, reserved by the instrument of demise, with a clause that such re-entry may be pleaded as leave and license, may be given in evidence under this plea; Kavanagh v. Gudge, 7 M. & G. 316; S. C. 1 D. & L. 928. Form of license to enter, because rent unpaid, &c., ante, 755 and 728, Form 5. Form of plea of license by deed to sink pits, &c. and replication; Roberts v. Davey, 4 B. & Ad. 664. Plea of license to enter under a power to sell, and a covenant for quiet possession, conferred by plaintiff, the freeholder, on a trustee to secure a debt; Watson v. Waltham, 2 Ad. & É. 485.

LIMITATION OF ACTIONS.

See 3 & 4 Will. 4, c. 27, ss. 14, 15, and form, ante, 716, 660.

Declaration for breaking and entering Plaintiff's Close. PLEA.-Seisin of W. in fee, who demised to J. H. for a term, entry of Q. H., devise to W. H. and assent of executors, and justification as W. H.'s servant, giving colour to plaintiff.

REPLICATION. That the entry was for recovering close, and defendant's entry did not accrue within twenty years before.

REJOINDER.-That no acknowledgment of title had been given before 3 & 4

Will. 4, c. 27; that W. H. was entitled when act passed; that the close was not then possessed adversely to right of W. H., and entry made within five years of passing of the act.

SURREJOINDER. That one S. possessed the close adversely to W. H., and issue thereon.

Holmes v. Newland, 11 A. & E. 44; S. C. in error, 3 Q. B. 679.

MESNE PROFITS.

In trespass for mesne profits, (see declaration, ante, 713), the defendant might plead not guilty, which would deny that defendant occupied and kept the plaintiff from possession; he might also plead as ante, 748, Form 1, a denial that the premises were the plaintiff's, (and see Jefferies v. Dyson, 2 Stra. R. 960). Upon the latter plea, the defendant might give evidence of title in himself, though he has let judgment go by default in the ejectment; the judgment therein not being conclusive evidence of title, not being replied by way of estoppel; Doe v. Huddart, 2 Č. M. & R. 316. See such a replication in estoppel, Doe v. Wright, 10 A. & E 763.

NEW ASSIGNMENT IN TRESPASS TO REALTY.

OBS. A new assignment in trespass to realty is necessary where the declaration is general and the subject-matter divisible, and the plea apparently sets up matter of

justification, covering the trespasses to which the plea is pleaded, but really only answers a part; in such case, the part not answered must be new assigned; 1 Saund. 299, 300; Bracegirdle v. Peacock, 15 L. J. 76, Q. B. So, where the plaintiff cannot deny the cause of justification, and either relies on another distinct trespass, or upon an excess committed by the defendant in exercising his right, he should new assign that; see ante, 724. Form of new assignment of another distinct trespass, ante, 720. The onus of proving that the trespasses were distinct will lie on the plaintiff; Darby v. Smith, 2 M. & Rob. 184. In trespass to the person, where the plaintiff relies on excess, it is usual to reply it; see ante, 724; id. note (p). In trespass to realty, where the plaintiff relies on excess, it is usually new assigned as in the following form. Sometimes the plaintiff may deny the justification and also new assign, without committing the fault of duplicity. Thus in trespass to land, laid to have been committed on divers days, so that distinct trespasses may have been committed at separate periods, where the defendant pleads a right of way, &c., the plaintiff may traverse the right, and also new assign other trespasses extra viam, or on totally different occasions and for other purposes; see 1 Chit. Pl. 7th ed. 661, and ante, 720. So where a plea justified (by leave and license) a trespass, in entering, &c., a house, it was held that a replication traversing the justification, and also newly assigning continuing in the house and excess, was good; Loweth v. Smith, 12 M. & W. 582; S. C. 2 D. & L. 212; and see Worth v. Terrington, 13 M. & W. 781: S. C. 2 D. & L. 352, cited ante, 719. Trespass for breaking and entering a house, and breaking locks, &c, Plea jus tifying as sheriff under process, stating that defendant was lawfully in the dwelling-house, and that he could not get out or remove the goods without breaking, &c. New assignment that action brought for breaking the outer door, &c. Plea justifying as before, and as no one was in the house, defendant opened door. Second new assignment that action brought for breaking locks, &c., belonging to outer door. Held good, as the substance of the second new as signment was contained in and might be proved under the allegation of the first; Pugh v. Griffiths, 7 A. & E. 827. But in such cases, on account of costs, it is injudicious for the plaintiff to traverse the right set up in the plea, unless there be good reason to dispute it.

1. New Assignment extra Viam, &c., upon a Plea of Right of Way, &c. (j)

plea,

Commencement, ante, 23.] And the plaintiff, as to the said saith that he commenced his said action not [or "not only,"] (k) for the trespasses in the said plea mentioned, and therein attempted to be justified, but for that the defendant on the said several days and times in the declaration mentioned, with force and arms [* (1) in a greater degree, and to a greater extent, and with more force and violence than was necessary for abating and removing the said supposed stoppages and obstructions in the said plea mentioned, and opening the said supposed way, committed the said several trespasses in the declaration mentioned, or (" in the introduc

(j) If there be a way over any part of the close as described in the declaration, the defendant will succeed on a plea of right of way, and though the declaration complain of his pulling down posts, &c., the defendant is not bound to prove that the way was exactly where the posts stood. In such case therefore it is essential that the plaintiff should new assign as above; Webber v. Sparkes, 10

M. & W. 485.

(k) This form is to be adopted when the plaintiff can without duplicity traverse or reply to a plea of justification, and also new assign, supra, obs.

(1) Omit the allegation between the asterisks, if the plaintiff merely complain of a trespass out of the way.

tory part of that plea mentioned"); and also, for that the defendant *] on the said several days and times in the declaration mentioned with force and arms broke and entered the said close in which &c., and with feet in walking [&c. as in declaration,] on other and different occasions, and for other and different purposes, than the occasion and purpose in the said plea mentioned, and in other and different parts of the said close in which &c., out of the said supposed way (m) in that plea mentioned, in manner and form as the plaintiff hath above thereof complained, which trespasses above newly assigned are other trespasses than those in the said plea mentioned and attempted to be justified; and this the plaintiff is ready to verify, &c.

2. New Assignment to Plea of Distress, stating a Continuance in the House after a Tender made previous to the impounding. Ladd v, Thomas, 12 A. & E. 117.

3. New Assignment to a Plea of Justification under a Fi. Fa. by a Sheriff, stating that he continued in the House an unreasonable Time, &c.

Playfair v. Musgrove, 3 D. & L. 73; S. C. 14 M. & W. 239.

4. Similar new Assignment that the Sheriff broke open an outer Door. Pugh v. Griffiths, 7 A. & E. 830.

5. Plea to new Assignment.

The defendant might plead" as to the said trespasses above newly assigned," not guilty, as ante, 714; or he might plead in confession and avoidance, or several pleas as though he were pleading to an entirely new declaration; 1 Chit. Pl. 7th ed. 668. Effect of suffering judgment by default to a new assignment; Dand v. Kingscote, 6 M. & W. 174. As to the costs where money is paid into Court on a new assignment, Griffiths v. Jones, 1 M. & W. 731; in such case it would seem to be advisable for the sake of costs to withdraw the general issue altogether, and not merely so much of it as relates to the new assignment; see Bourne v. Alcock, 4 Q. B. 621; Price v. Seaward, 1 C. & Marsh, 23.

(m) Effect of these words, Ellison v. Isles, 11 A. & E, 665; and see as to when plain

tiff should plead another right of way instead of new assigning, ibid.

6. Judgment by Default as to the Trespasses newly assigned, relinquishing the Pleas to the Declaration, as they relate to the Trespasses newly assigned. (n)

And the defendant relinquishing and withdrawing his said several pleas by him above pleaded to the said declaration, [so far as the same pleas relate, or either of them or any part thereof relates, to the said trespasses above newly assigned or any part thereof,] says nothing in bar or preclusion of the said action as to the said trespasses above newly assigned, wherefore, &c.

NUISANCE.

Plea by a Commoner justifying pulling down a House, because it was unlawfully built on a Common.

Perry v. Fitzhowe, 15 L. J. Q. B. 239.

N. B. In this case the law respecting the right to abate a private nuisance will be found much discussed; and see ante, 754, note (g), and 737; 3 Bl. Com. 5; Vin. Abr. "Nuisance," W. 2, Pl. 3.

PAYMENT INTO COURT, ante, 716 and 660,

POOR RATE.

See the forms of avowries in Replevin, ante, 696, which may easily be converted into pleas justifying a seizure under a magistrate's warrant for poor rate; and a form to that effect in Barrett v. Nicholson, 6 Car. & P. 202; and replication there, that the seizure was out of the Court; and see Bridges v. Blanchard, 3 Nev. & Man. 691.

PROCESS-SHERIFF.

JUSTIFICATION under Civil Process,

Plea by a Sheriff, his Bailiffs, and an Execution Creditor, sued together for breaking, &c. a House, and seizing Goods, a Justification under a Fi. Fa. (0)

The following form setting out the payment, the writ, and the warrant thereon, is

(n) Form, &c., 1 Wms. Saund. 300, note (f); see ante, 769, Form 5. The payment of a sufficient sum of money into Court upon the new assignment, "relinquishing and withdrawing the pleas," &c., as above, and then by judge's order pleading payment into Court in the common form to the trespasses newly assigned, would seem to be as advantageous for the defendant, in reference to costs, as the suffering judgment as above; see id. The form in the text leaves the general issue on

the record, so far as it relates to the declaration, and therefore will give the plaintiff the right of beginning, Price v. Seaward, 1 Car. & M. 23; and may subject the defendant to the costs incurred by the plaintiff in proving the declaration, Bourne v. Alcock, 4 Q. B. 626.

(o) See in general as to the mode of framing these pleas, 1 Saund. 296, 298; 1 Chit. Pl. 7th ed. 560; Com. Dig. "Pleader," 3 M. 24.

applicable when the sheriff, the officers, and the execution creditor, all join in the plea If only the sheriff and officers join, (p) say

"That before &c., a certain writ of our lady the queen, called a [fieri facias,] was issued out of the Court of [Q. B.] at Westminster, directed to the sheriff of the county of -, by which said writ, &c." [as in the text from the asterisk.]

The officer, if pleading alone, need only begin with the warrant, thus

"That before &c. one R. S., then being the sheriff of the county of [Surrey], to wit, on &c., made his certain warrant in writing &c., [as in the text from the t].

If the attorney be joined in the action (as to his liability, see ante, 515, obs., and 742, Form 10,) say, after the statement of the judgment, at the place in the text marked **

"That before and at &c., the defendant A. P. [the attorney], was an attorney of the Court of [Q. B.] at Westminster, and that as such attorney, and by virtue of a retainer in that capacity by the said A. B. [the execution creditor], which said retainer was given to him by the said A. B., after the recovery and entering up of the said judgment as aforesaid, (see Bevins v. Hulme, 15 M. & W. 88,) and before the said time when &c., to wit, on &c., he the said A. P. as such attorney as last aforesaid, for the obtaining satisfaction for the said A. B., of the money so recovered as aforesaid, sued and prosecuted, &c." as in the text, confessing all the facts as done by him, “ as such attorney, and by virtue of the retainer last aforesaid." (See Com. Dig. "Pleader," 3 M. 24; Britton v. Cole, 1 Salk. 409.

Plea of Justification under a Fi. Fa.

1. Not guilty, (q) ante, 714. 2. As to seizing, &c. the goods, denial that they were plaintiff's, ante, 744, Form 3.] 3. And for a further plea in this behalf, the defendants say that before the said time when &c., and before the commencement of this suit (r), to wit, on [&c.], the defendant A. B. [the exe

(p) If there be any doubt as to the writ being irregularly issued, the sheriff and officers should not join the execution creditor in this plea; and on the other hand the execution creditor should keep aloof from the officer, if the latter have been guilty of any excess in executing the writ. See Britton v. Cole, 2 Stra. 1184; S. C. 1 Salk. 408, 409.

(q) If the sheriff's defence be that the bailiff's act be not binding on him, (as to which see 1 Chit. Pl. Ind. "Sheriff,") either by reason of its having been done after a supersedeas has issued, Brown v. Copley, 7 M. & G. 558; or because he has exceeded his authority, the plea of not guilty will suf fice for him; so it will suffice when he is sued for an act done judicially, as issuing process out of a county court of which he is judge, ibid., and Tunno v. Morris, 2 C. M.

PART II.

& R. 298; and see Dicas v. Lord Brougham, 6 C. & P. 249.

(r) The plaintiff's possession of the house, &c. might also be denied, as ante, 748. All these pleas were pleaded in Carnaby v. Welby, 8 A. & E. 872.

If the sheriff has seized the goods of A. B. under a fi. fa. against him, and C. D. bring an action for such seizure, claiming the property in the goods under a bill of sale, or conveyance from A. B., which there is reason to believe is collusive or fraudulent, (as to which see ante, 685,) the plea denying that the goods are plaintiff's will let in such defence, ante, 743, obs.; Nicholls v. Bastard, 2 C. M. & R. 659, per Parke, B.; Harrison v. Dixon, 12 M. & W. 142; S. C. 1 D. & L. 454.

3 E