1812. OAKLEY against DAVIS. true it was that the writ mentioned in the plea did issue, yet that the defendant afterwards, and after the arrest made, of his own wrong, and without any justification by the writ, committed the trespass complained of. [Lord Ellenborough, C. J. How could the plaintiff new assign upon the trespass stated and justified by the plea, when he might have traversed the fact pleaded. The new assignment admits that the declaration stands well answered by the plea; but it states in effect that the defendant is under a mistake, for that the plaintiff complains of a new and substantive trespass not answered by the plea. Now here the proof was not of another but of the very same trespass of which the plaintiff complained; for there was but one arrest and one imprisonment, which is answered by the plea.] If there had been a legal warrant under the writ, that might have been an answer; but here there was no legal arrest under the writ: and this differs from the case, in Wilson (a), where the arrest was legal; and from Atkinson v. Matteson (b), where there were two assaults charged; and here there is only one. LE BLANC and BAYLEY, Justices, referred to a case decided in last Hilary term, which had been tried before Lord C. J. Mansfield, and came on upon a motion for a new trial; where in trespass the defendant pleaded that the place where, &c. was part of a common which had been allotted to him; to which the plaintiff new-assigned that the trespass complained of was in another place: and upon its being admitted in the opening of the plaintiff's counsel to the jury that the trespass was in the same place, but that the defendant had no title to it; the (a) 2 Wils. 3. (b) 2 Term Rep. 172. 177. Chief Chief Justice said that that was decisive against the plaintiff's recovery; and the verdict passed against him. This case was recollected by all the Court, and thinking it in point to the present, they made the rule absolute. Abbott for the defendant. 1812. OAKLEY against DAVIS. GOODTITLE, Lessee of CHARLES LUXMORE, against proviso Friday, June bth. Under a benereserving liberty to the lessee ficial long lease, to cut down and dispose of all timber and The coppice, &c. (the value of THIS ejectment was brought and tried at Exeter in the spring of 1812, before Chambre, J. for the recovery of an estate called Okehampton Park and other lands claimed by the lessor of the plaintiff under a for re-entry contained in the after-mentioned lease. declaration contained three counts on several demises by which was Mr. Chas. Luxmore, who was assignee of the reversion of the premises in question, under a conveyance from Lord Viscount Courtenay, about Christmas 1804; the first of these 'demises being on the 1st of January 1810; the second on the 1st of August 1811; and the third on the 13th of January 1812. The defendant, Mr. Saville, so often as the included in thereafter to that when and lessee should in tend, during the term, to sell the timber, &c. growing on the premises or any part thereof, he should immediately thereupon give notice in writing to the lessor of such intention, who should thereupon have the option of purchasing it; and on the lessor's neglect or refusal to purchase, the lessee might dispose of it absolutely; if the lessee, soon after the execution of the lease, bona fide intend to cut down the whole of the then growing timber and coppice, &c. and give notice in writing to that effect, and the lessor do not accept the purchase, but disclaims it; the lessee may proceed to cut down the whole in different seasons according to his convenience, and is not obliged to give a fresh notice at every succeeding cutting and this, though the lessor had in the interval assigned his interest in the Jand to another But after such as ignment, it is sufficient for the lessee, after ejectment brought by the assignee of the lessor for a forfeiture, to give such assignee notice to produce the original notice in writing of the intention to cut the whole, and he is not bound to shew that he applied for the same to the original lessor (who had left the country) or to his agents, or gave them notice to produce it; for it will be presumed to have been delivered up to the assignee of the reversion as a document relating to the estate; and on default of its production at the trial, he may give parol evidence of it. was 1812. GOODTITLE, was the assignee of the terms created by the lease. The indenture bore date the 24th of March 1798, whereby Lord Viscount Courtenay, in consideration of 12,5007. paid to him by H. Holland, Esq., and of the yearly rents and heriots reserved, and the covenants, reservations, restrictions, and agreements therein mentioned, granted to Mr. Holland, Okehampton Park, in the county of Devon, containing 1485 acres, "together with all timber and other "trees, coppice, and other wood, now standing and grow"ing, or hereafter to grow on the said park; with liberty "to and for the said H. Holland, his executors, &c. to cut "down and dispose of such timber and other trees, cap66 pice and other wood, during the term hereinafter granted, "for his and their own use and benefit; except, and sub"ject to the proviso and agreement hereinafter con"tained:" and also a plot of ground adjoining called Park Kempleys; excepting the timber and other trees growing or to grow on such plots; " and also all saplings growing or to grow on Okehampton Park of less than six inches in diameter, except such as shall be standing and growing on any plot of land belonging to the said park, which shall be grubbed up by the said H. Holland, his executors, &c. for the cultivation and improvement thereof;" habendum the said park and plot of ground and other the premises granted to H. Holland, his executors, administrators, and assigns, for a term of 40 years thence ensuing, and also for a concurrent term of 99 years determinable upon three lives, at a rent of 221. 10s. for the park, and 57. 5s. for a heriot, on the death of each of the lives, in succession, and of 5s. rent for the plot, with 5s. heriots. Then followed covenants by Mr. Holland for payment of rent, repairs, &c. and doing suit and service at the lord's court: with a proviso for re-entry of the grantor, his heirs and assignees, "if "if the said H. Holland, his executors, &c. do not well and truly perform and keep all and singular the covenants, conditions, reservations, restrictions, and agreements therein contained, on his and their part to be performed," &c. The grantor then covenanted for quiet enjoyment; and then followed this clause of agreement between the parties, "that when and so often as the "said H. Holland, his executors, &c. shall intend, during "the continuance of the said several terms or either "of them, to sell and dispose of the timber and other trees, coppice and other wood, growing or to grow "on the said premises, or any part thereof, he the said "H. Holland, his executors, &c. shall and will, imme"diately thereupon, give notice in writing unto the said "Lord Viscount Courtenay, his heirs or assigns, of such "his or their intention so to do; and thereupon the " said Lord Viscount Courtenay, his heirs or assigns, "shall be entitled to the option of purchasing such tim"ber and other trees, coppice and other wood, in order "to prevent the same from being cut down, in case he 66 or they shall think fit to preserve the same to stand on "the premises, at such price or prices as such timber, "&c. contained in such notice shall be estimated to be "worth by two indifferent persons, &c.: and when "such notice shall have been given as aforesaid, in case "Lord Viscount Courtenay, his heirs or assigns, shall, "within one month then next after, signify to H. H., "his executors, &c. his or their intention of purchasing "the same, then and from thenceforth H. H., his executors, &c. shall have no power to sell and dispose "thereof to any other person or persons without the privity and consent of Lord Viscount Courtenay, his "heirs or assigns; unless Lord Viscount Courtenay, his 66 66 1812. GOODTITLE, Lessee of LUXMORE, against SAVILLE. 1812. GOODTITLE, "heirs or assigns, shall neglect or omit to ascertain the "value of such timber in manner aforesaid, and to pay "the estimated value thereof within six months from "the time of his or their signifying an intention of pur"chasing such timber, &c.; but after the expiration "thereof H. Holland, his executors, &c. shall be at "liberty to sell, cut down, and dispose of such timber in "such manner as he or they shall think fit, any thing "thereinbefore contained to the contrary notwithstand"ing." The substance of the evidence given by the plaintiff's witnesses was this. Mr. Luxmore's agent living at the town of Okehampton, adjoining the premises, proved that he had received the reserved rent from the defendant's agent from the time of the reversion purchased by Mr. Luxmore in 1804 down to Michaelmas 1810. That a great deal of timber was cut in Okehampton Park in 1799, during Mr. Holland's time, when the witness bought some of the lops of the trees. That he knew of no intention on the part of the defendant, after his purchase of the term, to fell timber again, in 1804, 1805, or 1806; during which years it was proved by other witnesses that there were considerable falls of timber, and other wood: and there was another considerable fall in 1811. These several falls were clearly proved by many of the witnesses to be notorious in Okehampton and the neighbourhood. On the part of the defendant a note was read from another agent of Mr. Luxmore to the defendant's agent in 1808, containing an account of rents due to Mr. Luxmore from the defendant; in which the balance was only 2d. The brother of the late Mr. Holland, the original lessee, then proved that in October 1798 he saw Mr. Holland deliver a paper to Lord Courtenay's bailiff, now |