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1812.

A rule nisi for that purpose, or for the purpose of arresting the judgment on these pleas, having been obtained in the last term,

STOTT against STOTT.

Scarlett and Richardson now shewed cause, and relied on this being the invariable form of pleading such a right as the present ; the plea, whether it be pleaded by the tenant or owner, always alleges the right to be in the owner of the fee, for himself, his farmers, and tenants, occupiers of the premises, with this difference, that where the tenant pleads it, he goes on farther to allege his occupation. Here if the plaintiff had meant to question the defendant Pilling's right as occupier, she should have pleaded that he was not in possession, instead of traversing the prescription ; because unless that be done, the possession is admitted by admitting the general allegation of the defendant's seisin ; so much so, that even upon a traverse of the seisin, it would not have been open to the plaintiff to shew that the defendant was not in possession, because it must appear upon the record, if the party would avail himself of it.

Holroyd and J. Williams contrà, said that this involved a very important rule of pleading, as it regarded the evidence which might be applied to it; which they contended to be this, that where a defendant justifies in respect of a right of way to be exercised only by the occupier of land, and alleges a seisin in fee in himself, there he can only apply his justification to such land as he is the occupier of, because coupling his allegation with the right claimed, it imports that he claims in right of his possession. So here the right claimed by

the

1812.

STOTT against STOTT.

the defendant is a right founded on the occupation; it is for himself, his farmers, and tenants, occupiers of the messuage, &c.; therefore when he is justifying a trespass under such a right, he cannot shift his ground, and prove another right in respect of a messuage not in his occupation. It is an easement which, if it exist at all, is annexed to a messuage of which he is occupier, and of which he alleges himself to be seised in fee; his evidence therefore must apply itself to such a description of messuage and no other. It may be said perhaps that the plaintiff should have new-assigned, so as to have fixed the defendant with a trespass in using the way to one particular house, and thus have restrained his proof to a right of way in respect of that house; but how could the plaintiff know that the defendant had two houses, one in his own occupation and the other not, or that the way was pleaded in right of any other house than that which he occupied, and to and from which it had been exercised? All therefore that the replication could do was to traverse the prescriptive right in respect of the house which he occupied ; neither his seisin in fee, nor his right of way in respect of the other house, could be traversed, because both 'were true. If a new assignment was necessary in this case, it would be necessary in every case where the defendant has no right in respect of the house he occupies, unless the plaintiff can be sure that he has no right in respect of any other house. It may be said that if trespass be brought and liberum tenementum pleaded, it is enough, in maintenance of such plea, to shew any freehold within the parish, and that a new assignment is necessary to fix the defendant, with the trespass, at a

particular

1812.

STOTT against STOTT.

particular place; but liberum tenementum, like demesne, does not import that he is in the actual possession; for although the land be actually in the possession of a termor, yet is it the demesne and freehold of the owner, and if the termor be ejected, the possession shall vest in the owner, and he shall have an assize for it, and shall say that he was seised in his demesne as of fee; Co. Lit. 17 a. Plowd. 191. The case of Savile v. Grinsditch (a) shews that the seisin in fee may be disapproved, though the traverse be only on the prescription. That was trespass, and prescription was made by a que estate, as here, and issue taken on the prescription; and because the estate in one Vavesour, under whom the defendant claimed, was an estate tail only, therefore the prescription was held not good, which sounded in fee simple; and for this Clayt. 30., pl. 52. is cited.

Lord ELLENBOROUGH, C. J. As at present advised I have no hesitation in saying that the case from Viner is not law, nor any thing like it. To hold that upon issue taken on the prescription, evidence could be given to shew that he was only seised in fee tail instead of fee simple, was going a great way, if indeed the case be of any weight at all. As to the question now before us, whenever a doubt appears to exist in the minds of intelligent advocates, the Court are always inclined to pause before they decide it; but here it seems to me that we are confined to the matter of this traverse. Here is a plea that the defendant is seised in fee, and that draws to it all the rights annexed to such a seisin. But it is

(a) 18 Vin. 135, tit. que estate, B.

said

1812.

STOTT against STOTT.

said that this imports an occupation, in respect of which the claim is made to a right of way. Be it so; but, on the other hand, all that which is not traversed is admitted; it is admitted therefore on the record, that the defendant was seised in such manner as to be entitled to a right of way, if the right of way exist. Then we come to the subject-matter of traverse, and that is, that the defendant and all those whose estate he has in the said messuage, &c., from time immemorial have used the said way, &c. What is there here that draws into question his seisin in fee? the only question is, whether as incident to that estate, of which he is admitted to be seised in fee, he has such a right; and it appears that he has. If the plaintiff had meant to insist that such right would not cover the exercise of a right of way to the new house, he should have done so either by a new assignment or by a special replication to that effect.

LE BLANC, J. (a). At the trial the objection struck me forcibly, but not so as to induce me to stop the cause, and therefore the right was tried, and I am glad of it. It came out upo

the evidence that the house in which the defendant Pilling lived, was only a new house, having been built about 10 years, but it also appeared that he had an ancient messuage and garden in the occupation of his tenant. The only point on which a doubt occurred to me at the trial, (for his seisin in fee was admitted) was whether he was tied down by the form of pleading to shew his occupation. It seems to me now that the plaintiff might have replied the facts

(a) Grose, J. was absent.

by

1812.

STOTT against STOTT.

by way of new assignment, viz. that true it is that the defendant was seised in fee of a messuage, &c. but that he had let it to another, and at the time of the trespass was only the occupier of a newly built messuage, and that this action was brought for a trespass in passing to and from such newly built messuage. If the plaintiff had so replied he would have brought the pleadings to the issue for which he now contends; or perhaps according to modern practice, he might have obliged the defendant, by a proper application, to state in respect of which messuage he claimed the right of way.

BAYLEY, J. I do not think that this form of pleading tied the defendant down to shew that the house he occupied was the house in respect of which he claimed the right of way; the occupation is not made part of the issue of this traverse,

What the defendant has pleaded is true, he is seised in fee of an ancient messuage and land; and the word seisin in pleading does not necessarily import that the land is in his occupation and possession. In pleading it is continually the practice for the lessee to justify under his landlord, as servant to the landlord, and for that purpose he pleads a seisin in fee in his landlord, and if the seisin be traversed, such traverse would not be upheld by proving that the landlord had underlet; which shews that this allegation does not of necessity import that he was possessed. The defendant's plea is therefore true, for he has a right of way for himself, his farmers and tenants, &c. to and from the messuage of which he is seised; and the proper course for the plaintiff, upon the defendant's setting up a claim in respect of a messuage and 50 acres of land, would have been to have inquired whe

ther

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