The touchstone of precedents, relating to judicial proceedings at common law by G.F. of Grayes-Inn, Esquire.

Trespass.

IF my Servant without my knowledge, puts Beasts into another mans Ground, the Servant is Trespasser, and not the Master.

If a man beat my Servant, I may have Trespass, and my Servant another Action of Trespass, diversis respectibus.

It is good to lay the Action some day af∣ter the Trespass committed; yet it is not material or traversable if be laid before: For it's but a Circumstance: As Trespass done the Fourth of May, the Plaintiff al∣ledgeth the First of May, it's sufficient, if upon Evidence it be proved, that the Trespass was done before the Action brought.

A Master is punishable for his Servant, if he be about his Masters Business: An Ab∣bot for his Monk; a Captain for his Soul∣dier; an Host for his Guess; So a Sheriff for his Under-Sheriff and Bayliffs: But a

Master shall not be Punnished for Tres∣pass of Battery, or Entry into Lands, or Felony, or Murder, or such like, done by the Servant, unless done by his Com∣mand.

If a Servant keeps his Master's Fire so neg∣ligent, that it burns his Master's and the Neigbours House, the Master is chargeable therewith.

A man is chargable with the Faults of his Family or of his Beasts: If a Ship is pe∣rishing, and the Marriners cast the Goods, to save them, on the Land next adjoyning; yet this is Trespass, and punishable by him that holds the Land.

A Servant may justifie the beating of an∣other in Defence of his Master.

A Man shall not have his Action of Tres∣pass for Threatning, and recover Damage as well as in Assault and Battery.

The Law does not allow any man to strike in Revenge of Ill words; and the reason is, because there is no proportion between Words and Blows; but he that is struck may strike again.

In Trespass, he that consents and gives aid to the committing of Trespass is a Principal and no Accessary to the same Trespass.

If Tenant at Will commits voluntarily

Waste, Trespass lies against him, notwith∣standing his Possession; so that if I de∣liver my Sheep to another, to Fold or Dung his Land, or a Horse to Ride, or Oxen to Plow his Land; If the Bailiff spoil or kill them, I have an Action of Trespass against him, notwithstanding the Delivery of them, or Trover at his Ele∣ction.

If a Man desseize me of my Land, or dispossess me of my Goods, yet I may en∣ter upon the Land, or take my Goods, although I release to the party Disseizer or Trespasser, all Actions; yet this Release shall not Bar my Right.

No Trespass can be excused by Law; but it may be justified; as upon son assault de∣mesne, or prout ei bene licuit; but not to say per infortunium & contra voluntatem suam; or casualiter or such like, is no good pleading to excuse a Trespass or Wrong done.

One Train-Band Souldier in Skirmishing, hurteth another in Discharging his Musquet, who brings Trespass, and the Defendant justifies and excuses himself, as being a Soul∣dier upon his Duty; and upon a Demur∣rer, Judgment for the Plaintiff: for tho' the Law be, that if two men Tilt or Tur∣ney in the presence of the King, or two Masters of Defence, in playing a Prise,

the one Kills the other, this shall be no Felony: So if a Lunatick Kill a Man, it's no Felony, because Felony must be done Animo Felonice: But yet in Trespass, where Damages are to be recovered, ac∣cording to Loss or Hurt it's not so: And therefore if a Lunatick hurt a Man, he shall be answerable, in Trespass, wherein no man shall be excused, except it may be adjudged utterly without his Fault.

If there be a Lease of a House for Years, and the Lessor Enters, to see if Waste be committed, or want of Repairs; and then he takes away some of the Lessee's Goods, against the Will of the Lessee, he shall be punished as a Trespasser ab initio: So of one that comes into a Tavern, and carries away a Cup; for though the Entry were lawful, in both Cases at the First; yet if they do an evil Act after the Entry, it makes the Entry and all the rest unlawful: And the reason is, for that the Law gives liberty to enter for one intent, and he useth the same for ano∣ther ill Intent. The same Law is where Goods are seized for Rent or Damage feasant•• and the Goods are abused.

A Man may Distrain in an House, if the Doors be open, otherwise not but a man may distrain per Ostia & senestras; so that a Di∣stress taken out of a Window is good.

You cannot present, in a Court Leet, any thing that is particular Trespass, to particu∣lar persons, but only such things which are a Common Nusance to all; neither is such Offence punishable there; As if a Freeholder erect a Dove-house it is only Trespass to those whose Corn they eat, and not punish∣able in the Leet.

Also every Man's Land is supposed to be Inclosed, though it lie in the open Field, and if Trespass be done the writ is quare Clausum fregit.

If a Man doth a Lawful Act which proves unlawful, it is Dampnum sine injuria: As if in Plowing my own Land, the Cattel are so unruly, that they carry the Plow upon another's Land against my Will; this is a good Justification.

In all Trespasses there must be a volun∣tary Act of the Trespasser, and a Damage to the other party, else the Trespass lies not.

In Trespass for Beating and Assaulting the Wife, the Husband shall have the Action a∣one, without mentioning the Wife, because whatever Damages are Recovered shall go to the Baron only.

In all Actions of Trespass, vi & armis. &c. there ought to be an express Averment of the Force in the Declaration, and ought not

to be expressed with a, whereas there was such a Force.

In an Action of Trespass against one, with a Simul cum, against others, if nothing be proved against the other, they may be exa∣mined as Witnesses in the Cause: And if re∣covery be had against the Defendant, named in the Declaration, those in the Simul cum can never be sued afterwards for the same Trespass.

Trespass against three, they plead, that they had Common, and each put in his Cat∣tel to use it; and the plea adjudged single and good enough: But in Trespass against one, and he pleads, that A. had Common, and to B. and S. C. and he as their Ser∣vant acct' in &c. 'twere confused and ill; but if he pleads, that as a Servant to A. he put in such, and to B. such, &c. 'tis good e∣nough: vide Title Joyntly and Severally, Tr. 15. H. 7. pl. 18.

In Tresp••ss, the Defendant pleads, that the Plaintiff delivered Goods to the Defen∣dant, to carry to such a place: The Plain∣tiff replied, de Injuria sua, &c. per nonnull'; no plea: For where the Defendant claims under a Gift or Delivery of the Plaintiff, the Plaintiff must answer to the Gift or De∣livery by himself, and not the mean Con∣veyance, which Bryan granted; but held,

that de Injuria, &c. was a good Traverse, that he delivered them, M. 16. H. 7. pl. 2. M. 10. H. 7. pl. 15. H. 15. H. 7. pl. 6. Tr. 15. H. 7. pl. 19.

Trespass: the Defendant justifies for taking a Distress for an Amerciament as Bay liff of a Court Baron, good; though he shewed no Warrant in Writing, for the Precept may be per parol; but because he pleaded not that he returned the Precept, 'tis ill; as if the Sheriff returned not the Cap', he is a Tres∣passer, Trin. 16 H. 7 El. 9. 15.

Trespass and Battery against a Constable, he pleads that the Plaintiff was beating a∣nother, and he came to keep the Peace, and laid Hands on the Plaintiff, and he beat him, and so justifies, per Ryder Just. 'tis double: For he justifies as Constable, and also in his own Defence. Kingsmil contra, the Beating had not been Lawful, but that he first beat the Constable, P. 2 H. 7. pl. 5.

Trans' de domo fracto & muris ••jusdem do∣mi, the Defendant pleads Not Guilty to the breaking of the House; and as to the Wall justified, ill: For the Wall is part of the House; so he cannot be Not Guilty of all, and justifie for part; for that is repugnant, pl. 21 H. 7. pl. 7.

Trespass of a thing done at D. and after in plea, they alleadge another thing in pursu∣ance

of the former to be done at D. and though they say not at D. yet intended so, and ruled well, M. 21. H. 7. pl. 10.

Trespass for Digging, &c. the Defendant justifies as Commoner, to dig a Trench, to let out Water, wherewith it was usually sur∣rounded, in the Winter, as well for the saving the Lands as the Commons; and by some this seems double; for either of them was a sufficient Justification of Issue: And where one pleads two things, either of which is a plea of it self, 'tis double, Tr. 17. H. 8. pl. 1.

He that pleads a Fine in Barr in Trespass or in Warranty must conclude Judgment, Si Acco', and not r••ly on the Estoppel; for that goes to the Realty, which is not in questi∣on in Trespass, Tr. 27. H. 8. pl. 19.

Trespass against A. for Imprisonment, &c. he pleads, that the Plaintiff had committed Felony, and he prays the Constable &c. and thereupon they went and arrested him; ill, because he answers nothing for himself; that he, by Command of the Constable, &c. P. 2. E. 4. pl. 20.

Trespass: the Defendant pleads, that his Father was seized, and let to A. for Life, to enfeoffee; &c. And A. died, and his Father entred, as in his Reversion, and it descend∣ed to him, and objected; his plea double, on

the entry of the Father, the dying seized and descent, by Billing and Needham, but Littleton and Cook, contra. M. 2. E. 4. pl. 15,

Trespass by A. and B. for breaking their Close, the Defendant to A. pleads a Title in Barr, and to B. not guilty, by Danby, Mayle, Cheke, the plea ill, for the Barr goes to all, and the other makes it double, Needham and Ashton contra, each Plaintiff ought to have his Answer. M. 2. E. 4. pl. 20.

Trespass for cutting Subbosc', and carry∣ing away two Loads of Barley: quoad the Barley, the Defendant pleads a Lease at Will, by one Tenant, as Tenant in Com∣mon: and quoad the Wood a License by him, and the Plea not double, for a Tenant at Will cannot cut, &c. without License. M. 2. E. 4. pl. 25.

In a Precipe, the Tenant pleads a Release in Barr, and it was in Barr of all the Lands in S. that he bought of J. S. ill; not aver∣ing, that he bought the Lands of J. S. the words being general, viz. All the Lands, &c. not particular of bl. Acre, &c. which will be otherwise. M. 2. E. 4. pl. 26

Trespass on the Stat. R. 2. the Defendant pleads a Guift of the Land by Act of Parlia∣ment, whereby he was seized temps' H. 6.

and the Plaintiff entred upon him temps E. 4. and he entred; Choke Justice, and Littleton, held it double, for the Gift and Seizin is one barr, and the Entry of the Plaintiff and the Re-entry of the Defendant is another; but Ardern Justice, and Lason, contra, for 'tis all pursuant, Et ibidem by Choke and Needham, Justice, when the Defendant pleads, that the Plaintiff entred so long after the Statute, and says not by what Colour it shall be intended more strongly against himself, and intended by Title, Ardern, Justic' cont', no Title shall be intended, till the Plaintiff shews it. Trin. 3. E. 4. pl. 1.

Trespass for taking a bag of Money, the Defendant pleads, that the Plaintiff was in∣debted to him, and says not how, and delivered it him in payment; the Plaintiff replies, De injuria, &c. And per Littleton, no Plea where the Defendant justifies by an Act of the Plaintiff himself. Vide Trin. 20. E. 4. pl. 1. m. 9. E. 4. pl. 25. 12 E. 4. 10. 6 H. 19. E. 4. pl. 15.

Trespass against the Lord, vi & armis, he admits it, and pleads a Distr' for Services and the Issue of Views, Arrear, found for the Defendant, yet no Judgment; for the Court is not to admit him to recover against a Negative Statute, other, if it were affirma∣tive, and Election to proceed either way. p. 10. E. 4. pl. 10.

Trespass by J. S. for taking an Horse, the Defendant pleads, that J. S. de D. was possessed, and gave him the Horse, &c. the Plaintiff replies, that he is not the same per∣son in the Barr and Dem', and tho objected this ill in matter of Fact and Dem' for matter in Law; and it cannot be tryed by Court and Jury, the Plea ruled good; for by joyning in Dem' 'tis confess'd, he is the same Person, and he might have taken Issue of it. H. 13. E. 4. pl. 4.

Trespass against three, they all plead Not Guilty, as to part, and quoad resid. plead a guift of the Goods, and Issue, and at Ni. pr. 2. make default; the third pleads a Con∣cord, Prius Darr' contin' prayed to try the Issue against the two by Default, because no contin' can be made of it, because they ab∣sent, and if not tryed, now 'twill be dis∣continued. Objected, that goes but to part, and there is now a Plea, that goes to all, which is to be tryed first; for if that be a∣gainst the Plaintiff, though he should have Verdict on the other, he can have no Judg∣ment but for the Inconvemency, and for that this Plea to the whole, comes after the ven' fa', and the other was before; there∣fore 'twas tryed; but if both had been be∣fore the ven' fa', it could not have been, and they found for the Plaintiff, and they had Judgment with a Cessat Executio, till the

other tried; for the Concord was laid in another County; so the Plaintiff relea∣sed to him, and took Execution tho' the Judgment on the First Plea, Tr. 15 E. 4. pl. 11, 3. vide 4 E. 3. 42.

Trespass, the Defendant justified for Tithes severed; the Plaintiff replies, de son tort; objected no plea, no more than when in Trespass the Defendant makes Title, and pleads son Franktenement, or a Lease for years, by Bryan; and so it seems tho' Piggot says there, he claims there the Occupation of the Land; not so here, P. 16 E. 4. pl. 9. 2 Cro. 224, 225.

Trespass Not Guilty, and Issue, the De∣fendant puis darr' contin', pleads a Release, dated before the last Contin'; but deliver∣ed after; the Plaintiff replies, that was delivered the same day 'twas dated, Judg∣ment against him; for he did confess, he did release; so satisfied, and no matter when; but he might have pleaded, that he did not deliver it puis darr' Contin'; or that it was not his Deed puis' darr' con∣tin, by 78 H. 6. and 39. H. 6. 8, 9. Tr. 16 E. 4. pl. 2.

Trespass, the Defendant pleads, that the Plaintiff let to him for Years per Cur' he must shew what Estate he had, as that he was seized in Fee, &c. and let but by

Kidwelly: when one pleads a Lease from a Stranger, 'tis necessary to plead it so; not when he pleads the Lease to the Les∣sor himself, M. 22 E. 4. pl. 217.

Trespass for Assault and Battery, and Threatning, &c. de son Assault demesn Obj. in Error, the plea ill, not answering the minas; but resolved well enough for the minas, laid but in aggravation of damages. Penruddock against Errington: sed vide Hill. 16 E. 4. pl. 8. contra M. pl. 983.

In Battery, the Defendant justifies by Warrant out of a Leet; and though they plead not the day of the Leet, nor that the House was within the Jurisdiction, nor the Warrant; yet all these being but In∣dictments, adjudged good. Curey's Case, M. pl. 11. 47.

Trespass for entring the Close, and cut∣ting so many Trees, quoad all but cutting the Trees, and entring the Close, pleads Not Guilty; et quoad fract' Claus' pleads▪ matter in Law, and justifies the cutting the Trees; but because in the quoad, &c. nothing was said of the Trees; the plea is ill, and was amended, and made et quoad fract' claus', Cutting, &c. Co. 4. rep. 62. a.

Trespass and Battery, the Defendant pleads, that he had a Lease for Years of an House, and the Defendant would have

put him out, &c. good, without shewing by what Title his Lease or Commence∣ment, &c. of it, because said but as In∣ducement: For whatever Title he had, his possession excused him. Scable against Avery, 1 Cro. 69.

In Trespass, Quare clausum fregit in Dale, the Defendant justifies in Sale absque hoc, that he is Guilty in Dale: It seemed to be an ill plea, amounting but to the General Issue; but Fitz-herbert douts, because Dale and Sale may be adjoyning, and it may be doubtful in which the Close lies, Dyer 19. a.

In Trespass in several things in a Park, the Defendant made several Justifi∣cations, and pleaded, that quidam J. S. granted, &c. & quidam J. S. granted, &c. and so began every plea with qui∣dam J. S. which shall be intended several men; and it all being about one Office, 'tis ill: for several men could not several∣ly grant him it, 3 Cro. 401. quidam J. S. in∣tended the same person that it was men∣tioned before: And so Sti. 329. and 18 E. 3, 49, b. and Brid. 100. Hat. 84. quidam, found by Special Verdict, doubted if good.

In Trespass, the Defendant pleads a special plea, and justifies; the Plaintiff replies de Injuria sua propria; but did

not Traverse absque tali Causa; Issue and Verdict for the Plaintiff, Judgment staid, and Repleader awarded: For here is no Negative but an Affirmative of the first Declaration; but no denying the De∣fendant's plea by the Impa'. Jennings versus Lee, M. 24. Ca. 1. B. R. Sti. 150, 151.

In Trespass, the Defendant justifies his Entry, by Vertue of a Lease for Years; and adjudged no good plea, a∣mounting but to the General Issue. Jaynes Case, 1651. in B. R. so 2 Cro. in Trover, the Defendant pleads Sale in Market O∣vert; not good in Trover; The Defen∣dant pleads, that A. was possessed of Goods, and sold them to the Defend∣ant, and retained them in his Hands, and sold them to the Plaintiff; and they cme to the Defendant's Hands, and he converted, ill; amounting but to the General Issue, and leave no Color for the Plaintiff's Action; whereupon a Writ of Enquiry was awarded, and not ruled, for that the Defendant pleaded Not Guilty, Sti. 355. 2 Cro. 165, 319. Hob. 187. 1 Cro. 112. 2 Cro. 146, 147. 169, 435, 532. 555.

In Trespass, the Defendant pleads the Statute of Limittions; the Plaintiff re∣plied,

that he sued an Original within six Years. Et hoc pet' quod, &c. an ill Conclusion: For thereupon he lies upon the Defendant, and binds him to an Is∣sue, which he cannot pass over; but he should have ordered his Plea, Et hoc pa∣ratus, &c. Whitehead versus Buckland, Hill. 1651. B. R. Sti. 401, 402. Yel. 138.

Trespass for taking and Imprisoning him such a day; the Defendant justifies by Warrant on a Capias ad Satisfaci∣end'; the Plaintiff shews, that after the Writ issued, and before executed, he paid the Money to the Sheriff, who gave him a Supersedeas to all Bayliffs, &c. and the Defendant Arrested him; whereupon he shewed him the Superse∣deas, ••ho yet detained him an Hour: The Defendant says, he was not Let∣ter'd, and took that time to advise: Whereon 'tis demurred, and adjudg∣ed for the Defendant, not on the Mat∣ter in Law; but the plea for the De∣claration, charges him with a taking and imprisoning, and the Replication, with a detaining only, so a Departure. Strin∣ger against Fanlake, 3 Cro. 404.

Trespass for breaking two Gates and three Pearches of Hedging, the Defen∣dant prescribes to go in Preambulation

that way in Easter Week, and given the Plaintiff two Gates and three Pearches of hedging, he broke them, and upon Demurrer, adjudged the Plea ill, be∣cause he says not praedictas, and the two Gates and the three Pearches, may be other than those laid in the Declaration. Gooday against Mitchel, 2 Cro. 441.

In Trespass against several that en∣tred to take the Corn, whereto one of them had Right upon the Determina∣tion of a Lease, depending on a Lease for Life, ended: the Defendant pleads Not Guilty, and all the matter found spe∣cially, though their Entry were lawful as in the Right of one, yet it being by a License in Law, which must have been pleaded, and is not to be given •••• Evi∣dence, or by a special Verdict, for that Cause, Judgment was against them, for their entring, though against the Plaintiff as to the taking the Corn. Sir Henry Knivet against Powle, &c. 2 Cro. 463. 464.

In Trespass, the Defendant justifies Damage feasant, the Paintiff made a new Assignment, the Defendant justifies there for an Herriot, the Plaintiff demurred, supposing it a Departure, but adjudged not; for, by the new Assignment, the

Barr is out of doors, and that in the Replication, is as of a new thing, and could not be pleaded otherwise, for, it may be, he took one on Damage feasant, and the place mentioned in the Barr, and another for an Herriot in the Replica∣tion. Odyham against Smith. 3 Cro. 589, 590.

Trespass for taking an Hide, the Defendant justifies, because the Mayor &c. of London is seized of a House, called Leaden-Hall, and 'twas there Da∣mage feasant, for he by &c. The Plaintiff replies, that Leaden-Hall is an ancient Market on Fridays, and he bought it there, and had it on his Back to carry away; and though objected, the Repli∣cation not good, because he concludes not, que est eadem, &c. because he va∣ries from the manner of the Caption, and by his Plea, takes from the Plain∣tiff his Authority, yet resoplved good without it agreeing with him in the time and place of the Caption. Sawer against Wilkinson. 3 Cro. 627, 628.

In Trepass, one as Bailiff, pleads quod presentat' existit, that such an one surchar∣ged the Common, and for that was a∣merced, therefore distrained: 'tis good without saying in facto, that he did

surcharge the Common, for he is to take notice of no more than what is done in Court. Volleston against Alimond 3 Cro. 748. 386. com. 1. Leon. 292. 2 Cro. 582.

Trespass for taking two Hides, the Defendant justifies for a Distress, the Plaintiff replyed, that he tanned them, the Defendant rejoyned, they could not keep else, he did it to save them; ill, and a Departure. Duncomb against Reeve and Green. 2 Cro. 783.

Trespass, the Defendant pleads, that he is Clericus & seisitus de Rectoria in Jure Ecclesiae, and prescribes, that he and all his Predecessors, Parsons of that Church, have had a way, and so he says, not that he was Parson; and so it was objected, he had not enabled him∣self to make a Prescription, yet, saying he is seized Jure Ecclesiae, it tant' amounts and is good. Dom. Sandr. against Pender. 3 Cro. 8. 98.

In Trespass, the Defendant justifies, because, per quandam Indenturam, A. bar∣gain'd and sold Land habend' to B. the Plea ill, because not said in the Premi∣ses to whom he being, &c. but 'tis the habend', and the Granter and Grantee, must be named in the Premises; but,

because the Plaintiff replyed, Quod bene & verum, that A. granted to B. that is, a Confession to whom the Grant was, and mends it, Bustard against Collyer. 3 Cro. 899.

Trespass, the Defendant prescribes for Estovers at all times, except fawning times; the Plaintiff made an ill Repli∣cation: the Defendant demurrs, though the Bar was ill, the Defendant not shewing, that at the time that he cut, &c. was not fawning time; yet, he ha∣ving demurred on the Plaintiff's Re∣plication, the Court would not to the Bar, but no Judgment of the Plaintiff's ill Replication, Russel against Booker. 2 Leon. 209. 210.

Trespass for Battery, the Defendant justifies, Molliter manus imponendo, in de∣fence of the Possession of his House; the Plaintiff replyes, de Injuria sua abs∣que, &c. Verdict for the Plaintiff, and Judgment, Replication good, for the principal is the Battery, Hall against Gerrard. Latch 128. 3 Cr. 225. La••ch 221. 273.

Trespass, the Defendant pleads, the Plaintiff is a Recusant convict, whom the Statute 3 Jac. 5. makes excom' Judg∣ment de billa, because it wants, Et hoc

paratus, &c. per Recordum; also, the Con∣clusion is unapt for the Plea, for the Plea is in Disability; the Conclusion is barr, but, it seems, the Conclusion is but form, and used by general Demurrer. And vide the form of several Conclusions, Inde si Cur' vult cognoscere. 2. Al' person' sit serra respond'. 3. Al' briefe Judgment ate' Br. 4. Al' accon' del briefe. 5. In barr' Com' apprest Bracton de excepc', and differ Quando le ple al' br'; of perempt' quan∣do neme. If the pleading to the Writ be tryable, and tryed per pais, is peremp∣tory to the Defendant, other if Demurrer upon respond'; but if the Plea be try∣able by Certificate of the Ordinary, 'tis never peremptory; and if the Plea to the Writ be to the Action of the Writ, it seems peremptory, so Plea to the Action of the Writ, and Conclusion to the Writ peremptory, if demurred: one pleaded to the Action of Avowry, he shall not resort to plead in Abatement, after Imparlance: one pleads Outlawry in the Plaintiff, allowed. Dr. Cudman against Grendon. Vide 40 E. 3. 9 pl. Abate∣ment, Avowry and Conclusion the barr. Latch 177, 178, 179. Co. 11. rep. 52 a. and 1 Cro. 117.

Trespass, the Defendant justifies as Ex∣ecutor, the Plaintiff says, that the De∣fendant was annulled upon Appeal to the Court of Rome, and so not Executor, if the Conclusion good; diverse of opi∣nion semble, as well as where one pleads a Divorse in the Spiritual Court, and so not his Wife. M. 2. R. 3. fo. 22. pl. 51.

In Trespass for Misprision, the Defen∣dant pleads, that Robery had been done, and that he being a Watch-man, and the Plaintiff coming through the Town in the Night, he stopped him, to see what he was: doubted if not double, for he might stop him generally, either under Suspition, or particularly as a Night-Walker, being a Watchman. H. 4. H. 7. pl. 2.

Trespass against two Defendants, they Justifie, Et hoc paratus ut Justific' excep∣tionis, taken because it should have been, Et hoc parat' sunt. 1 Cro. 413. 414.

Trespass for taking his Apprentice, Plea, that the Plaintiff discharged him, not good; for he cannot be Apprentice but by Indenture, and then he cannot be discharged but by Deed, no more than one Covenant to build me an House in Covenant to plead a Discharge of

the Building, unless he plead it by Deed, 21 H. 6. 31, 32.

Trespass, Defendant pleads a Lease at Will made to him, by Vertue whereof he entred, and was possessed, and held good, without shewing of what Estate he was possessed; Idem in pleading a Feoffment, &c. For it may be doubtful in Law, as if made by an Infant, &c. Therefore more safe to plead the Mat∣ter, and to omit the Conclusion how he was seized and leave it to the Court, 35 H. 6, 63. b.

Trespass, the Defendant pleads, that the Plaintiff had nothing but in Com∣mon with J. S. &c. per Cur', he ought to shew how Tenant in Common, viz. the Feoffment, &c. if of a Joynt Te∣nancy personar, &c. but not after, the Plaintiff, stands not on it, but says, he was sole seized, and some thinks the Law is, he pleaded a Tenancy in Com∣mon of the adverse side; but if he had pleaded on his own side, then I agree I must shew how, 3 H. 6, 56.

Trespass for Fishing in his several Fish∣ings: the Defendant pleads 'tis not Free∣hold; and by some the plea is good, till the Plaintiff make a particular Title to the Fishing; Idem in Case of War∣ren;

but per Yel. and not denied; but not so for Common, because when one demands Common, it must be intended in alieno solo: But when one demands Fishing or Warren, it may be intend∣ed in his own Soyl: And so for the Defendant to plead un' Fr' Tent' a good plea prima Facie, till the other makes a Title; but per Fortescue, with a Tra∣verse of Fishing, &c. 'tis good, else not, no Resolution: vide Title Forrest per tout: And Title Fishing per tout, plus de cest' matter; and vide 21 H. 6. 21 b. and the Plaintiff makes Title, 18 H. 6. 29, 30.

Trespass, Quare lib' Warr' fregit, et Cuniculos cepit, the Defendant pleads, that the Plaintiff was seized and let to A. he by Command of A. took the Co∣nyes; Judgment le sans Title Mre', and after waves that, and pleads ut auter Judgment, si Acco' per Danby, on plea, because the Warren passed not by the Lease of the Land, and one may have Warren in his own Freehold. Note, he may plead Title under the Plaintiff himself; and Note the General Issue, and Note after he pleads the Freehold in a Stran∣ger, who let ut supra; and that he by Command of A. &c. absque hoc pt', the

Plaintiff has any Warren there. Jenny, that is, doubt the Freehold in a Stran∣ger, and traverse of the Warren; and thereon he Demurrs, L. 5 E. 4, 54.

Trespass for cutting Trees, Defendant makes Title to the Lord in Right of his Ward; and that he cut prout sibi be∣ne licuit, Danby Chief Justice, and the Conclusion ill: For it appears waste and unlawful, Marle, & mal Opinion ut mihi videtur, 'tis Lawful, quoad the Plaintiff; and good: For before the Statute of Waste, Lessor, or Ward had no Remedy against the Lessee or Guar∣dian by Trespass; and now 'tis punish∣able only by Waste, not in Trespass; but it may be an Estoppel in Waste; therefore better to plead, he cut them for a Repair, prout sibi bene licuit, L. 5 E. 4, 64, 89. b.

Trespass for taking, beating and im∣pounding his Cow, Defendant, quoad ven' vi & armis, and pleads Not Guilty, and quoad the taking and impounding justifies for a Distress; ill, not answering the Beating. Copeley against Piercy, Trin. 19 Car. 6. B. R.

Trespass for taking Cattel, Defendant justifies, Plaintiff replies and avoided it, & hoc &c. unde petit Judicium si. ab Acti∣one

praecludi; ill, being specially demur∣red on, it ought to be petit Judic' et dampna sua sibi adjudicari. Lady Broughton a∣gainst Holly, Tr. 21 Car. 2. B. R.

Trespass for Battery, Defendant pleads son Assault demesn, Plaintiff replies, the Defendant would have rid over him, and he molliter assaulted the Defendant in defence of his person; and so the Battery was of his own Assault, qui est idem insultus: In the Barr, the Defendant demurrs, and Judgment for him for the Re∣plication molliter assaulted; ill: it should have been molliter manus imposuit. Jones against Trysillian, Tr. 21 Car. 2 B. R.

Trespass for taking his Cattel, Defendant justifies damage feasant in his Free-hold, Plaintiff replies, and claims Common to a Messuage, &c. Defendant rejoyns, that he set sufficient Common for all the Cattel, le∣vant and couchant in the Messuage, Plaintiff demurrs, and objected he should have aver∣red sufficient Common to the Messuage for all levant, &c. for at that time he might not have so many levant as he had right of Com∣mon; for but adjudged the Rejoynder; good. Leech vers' Mickley, H. 21, 22 C. 2. B. R.

Trespass, Defendant justifies as Own∣er of an House, and says, That long be∣fore the Trespass, he was et adhuc seisit' existit, and doth not say necnon tempore

Transgression' praedict'; yet per Hob. Winch and Hutton; good. Grise against Lee, Winch 16, 17.

Trespass for Battery of A. and B. his Servant, per quod servitium amisit; Defen∣dant justifies, because A. and B. would have erected a Building to the Nusance of his Lights, and on demurrer, adjudged ill, because he says, not as Servants, or by command of the Plaintiff: And then he answers the quod servitum amisit, which is the Gist of his Action. Nor∣ris against Baker, H. 13 Jac. Bridg. 47.

Trespass for entring and breaking his Close, and driving his Cattel; Defen∣dant justifies as to the Entry, and dri∣ving the Cattel; Issue of it and Ver∣dict but Judgment against him, be∣cause he proved not the Breach as well as the Entry. Praunce against Tuckle, P. 8 Jac. B. R. Rot. 138. 1 Bull. 164.

Trespass str. May, Defendant Justifies 7 May, quae est eadem, &c. and on de∣murrer, adjudged a good Plea, without a Traverse; and if he had Justif' of the same time, he need not say, quae est ea∣dem; but at another time he must. Vaste∣rope against Taylor, H. 8 Jac. Rot. 1337.

Trespass for Assaulting, Wounding, Taking and Imprisoning the Defendant: quoad the Assault and Wounding, pleads

Not Guilty; and as to the Taking and Imprisoning, justifies; and on Dem••rrer, ill; because he justifies not the As∣sault; and there could be no taking without the Assault, and the quoad cap∣tionem and Imprisonment, does not im∣ply, and include the Arrest. Wilson a∣gainst Dodderidge, Hill. 12 Jac. B. R. 2 Bulstrod 335.

Trespass, Defendant makes Title by Descent from J. S. to himself, as Heir; Plaintiff demurrs generally, resolved then of the not saying, how Heir, but forme and amendable. Duke of New-Castle against Wright. M. 18. Car. 2. B. R.

Trespass for breaking six Closes; Not guilty to two pedibus ambulando: for the rest pedibus ambulando, he justifies for a way: upon which Issue. For the Trespass cum Averiis, he pleads want of Inclosure. The Plaintiff saith, the In∣closure was good, and the Defendants Cattel unruly, absque hoc, that they were out of Repair; upon which, the De∣fendant demurrs, and for cause shews, that the matter of Inducement is idle. Opinion of the Court was, that 'twas good, and the Traverse necessary upon that Inducement; that an Inducement is not material, a man may have many

if the Issue offered be single: resolved the Replication good. Parnell against Row. Anno 15 Car. 2. in B. R.

Trespass, Quare clausum fregit & cuni∣culos suos ad valentiam, &c. Verdict for the Plaintiff; moved in Arrest of Judg∣ment, that it ought not to be ad valenti∣am, of a living thing, but precii. 2. That it ought not to be cuniculos suos: resol∣ved by the Court, 1. Ad valentiam was but matter of Form; 2. That it shall be intended, that it appeared upon the Evidence, that they were domestick Coneys, and that the Jury were direct∣ed by the Judge: Also, that the Jury gave not any greater Damages in Re∣spect of Property, alledged by the Plain∣tiff in his Count.; Judgment for the Plaintiff per totam Curiam. Sir Orlando Bridgman also declared, that the Opi∣nion in 1 Cro. 15 Car. Child against Green∣hill, that of Deer in a Park, or Coneys in a Warren, a man might say, suos is not Law; and contrary to Coke, lib. 7. Case of Swans. Saywell against Thorpe, 16 Car. 2. in C. B.

Trespass, quare coepit, &c. 100 Oves; Judgment for the Plaintiff, Damages 2 d. after which, upon another Action for the Conversion, it was resolved, that the damages were only for driving them a∣way,

and not for the Conversion, 1 Cro 36. Lacon against Bernard.

He that hath the possession of an Hawk may have an Action of Trespass for stri∣king and killing her. 1 Cro. 18. Sir Fran. Vincent's Case.

Trespass, a man after he is arrested upon a Latitat, tenders Amends accord∣ing to 21 Jacobi; resolved it comes too late. 1 Cro. Wats against Baker, 264.

Trespass lies of Trespass done in an Hamlet, Yelv. Lapworth against Wast. fo. 77.

Trespass, the Plaintiff lays it in an Acre bounded &c. with Abuttels; the Jury found it to be in Dimidio Acrae infrascript', 'tis good; also, if the Jury had found it to be half an Acre, where∣as it was assigned an Acre, 'twere well enough. Yelv. Winkworth against Man, 114. But in an Ejectione firmae 'twere incertain, and void. Yelv. ibid. & 2 Cro. 183. 2.