an authority in law, Com. Dig. Pleader (3 M. 35); and so of all matters in discharge of the action as accord and satisfaction. Bird v. Randall, 3 Burr. 1353. But by various statutes particular persons are enabled to give the special matter in evidence under the general issue, parties distraining for rent arrear by 11 G. II. c. 19, s. 21, justices of the peace, mayors, constables, &c. by 7 Jac. I. c. 5, churchwardens and overseers by 21 Jac. I. c. 12. See ante, p. 369.

Under the general issue the defendant cannot prove as a bar that the plaintiff is jointenant, or tenant in common of the locus in quo with a third person, which is matter of plea in abatement. Brown v. Hedges, 1 Salk. 290. B. N. P. 91. Gilb. Ev. 234. But he may give such evidence in order to reduce the plaintiff's damages pro tanto. Nelthorpe v. Dorrington, 2 Lev. 113. B. N. P. 35. So he may show other circumstances which he could not have pleaded in mitigation, as in trespass for cutting trees, that they were applied to purposes for which the plaintiff had covenanted to furnish timber. Rennell v. Wither, Manning's Index, 291. 2d Ed.

Evidence on the plea of liberum tenementum.] Where the defendant pleads liberum tenementum, that the locus in quo is his soil and freehold, or the soil and freehold of a third person by whose command he entered, the issue is upon him, and he must prove it either by direct evidence of title, or by the presumptive evidence of title arising from acts of ownership, &c. Where the plaintiff has declared generally for a trespass to his close in A. without naming the close, and the defendant has pleaded lib. ten. upon which the plaintiff has taken issue, it will be sufficient for the defendant to prove a freehold in himself any where in A. which will entitle him to a verdict. Helwis v. Lamb, 2 Salk. 453, Goodright v. Rich, 7 T. R. 355, 1 Saund. 299, b (n). The plaintiff in such case should have new assigned, setting out the name or abuttals of the locus in quo. But if the plaintiff names the real name of the close in his declaration, and the defendant pleads lib. ten. generally without setting out the abuttals of the close, upon which issue is joined, the plaintiff may recover on proving a trespass done to a close in his possession, bearing the name stated in the declaration, though the defendant may have a close in the same parish known by the same name; and it will not therefore be necessary for the plaintiff to new assign. Cocker v. Crompton, 1 B. and C. 489.

Evidence under plea of justification generally.] Where to a plea of justification the plaintiff has replied de injuriâ suá propriá absque tali causâ, the whole matter of the plea is put in issue, and must be proved, so far as it is material to constitute a justification. The plaintiff declared for breaking and

entering his dwelling-house, assaulting and imprisoning him, and during his imprisonment assaulting, striking, and pushing him in a violent manner, and the defendant pleaded a justification under a writ and warrant, under which he entered, &c. and arrested, &c. and because the plaintiff, after he had been so taken into custody under and by virtue of the said writ and warrant, behaved and conducted himself in a violent and outrageous manner, and could not otherwise be kept in a safe and proper manner, the defendant was obliged to push and pull about the plaintiff, &c. and to give him a few blows, &c. A battery during the imprisonment was proved, but the defendant, though he proved the arrest, gave no evidence of outrageous conduct by the plaintiff while in custody, and it was held that the plea was not proved. Phillips v. Howgate, 5 B. and A. 220. But where the plea consists of two facts, either of which, if separately pleaded, amounts to a good defence, it will be sufficient for the defendant to prove either of those facts. Spilsbury v. Micklethwaite, 1 Taunt. 146. And it is sufficient to prove a justification which covers the trespass, although it does not cover the matter of aggravation. Thus where the plaintiff declares for breaking, entering, and expelling, and the defendant justifies only the breaking and entering, it is sufficient, for the breaking and entering are the gist of the action, and the expulsion is only matter of aggravation; if the plaintiff had wished to take the advantage of the expulsion, he should have shown the special matter in a new assignment. Taylor v. Cole, 3 T. R. 292, 1 H. Bl. 555, S. C. So where to trespass for breaking and entering a house, and staying therein three weeks, the defendant pleaded a justification, as to breaking, and entering, and staying in the house twenty-four hours, and it was proved that he stayed in the house more than twenty-four hours, Lord Ellenborough held that the justification was proved, and that if the plaintiff meant to rely upon the excess beyond the twenty-four hours, he ought to have said so by a new assignment. Monprivatt v. Smith, 2 Campb. 175, see also Lambert v. Hodson, 1 Bingh. 317, 1 Saund. 28, a (n).

Evidence on plea of right of way.] The cases in which the grant of a way, ante, p. 16, and the dedication of a way to the public, ante, p. 17, will be presumed, have been already stated. If the defendant plead a right of way, and the plaintiff deny the right, the latter may give in evidence that the way has been stopped by order of two justices; but the order must pursue the form prescribed by statute, and any material variance will be fatal. Davison v. Gill, 1 East, 64, Welsh v. Nash, 8 East, 394, De Ponthieu v. Pennyfeather, 5 Taunt. 634. On the traverse of a prescriptive right of way, the defendant may prove that the way was extinguished by unity of pos

session. Whalley v. Tompson, 1 B. and P. 371. Under a traverse of the right of way the plaintiff will not be allowed to show that the trespass committed by the defendant was not covered by the supposed right of way. Thus where the defendant pleaded that he was seised in his demesne as of fee of a messuage, &c. in the parish, and that he and all those whose estate, &c. had a right of way for himself, &c. his and their farmers and tenants, occupiers of the messuage, &c. over the locus in quo to and from the messuage, &c. as appertaining thereto, and the plaintiff traversed the prescriptive right, it was held that the defendant's showing that he was seised in fee of an ancient messuage in the parish, to which a right of way, as pleaded over the locus in quo, belonged, was evidence sufficient to support his plea, though the messuage was let to, and in the occupation of a tenant, and the defendant only occupied a new-built house in the parish, at the time of the trespass committed. Stott v. Stott, 16 East, 343. If the plaintiff meant to insist that the right stated 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. Ibid. 349. In some cases it is proper both to reply and to plead a new assignment. Where the plea on the face of it professes to answer the whole matter of the declaration, but in fact only answers part, as where to a declaration for a trespass to a close called A. the defendant pleads a right of way over A. and in the exercise of such right justifies the acts complained of, but in fact the defendant not only committed the acts complained of in that part of A. over which the alleged way passes, but also in other parts of A. the plea, as it has been said, has only "hit some of the places wherein the plaintiff intended the trespass," and the trespasses in the other part of the close remain unanswered, see Prettyman v. Lawrence, Cro. Eliz. 812, Odeham v. Smith, Cro. Eliz. 589. If therefore the plaintiff is desirous of denying the right of way, thinking that he can recover for the trespasses justified in the plea, as well as for those which are not in fact justified, but only appear to be so, he may traverse the right, and may at the same time new-assign extra viam, and thus entitle himself to give evidence of trespasses committed in every part of the

close.

Where the defendant pleads that A. B. was seised in fee, and being so seized, granted a right of way by non-existing grant, and the plaintiff traverses the grant, it is not competent for the plaintiff upon that issue to show that A. B. was not seised in fee, for the purpose of rebutting the presumption of the grant, he being estopped by the admission on record. Cowlesham v. Cheslyn, 1 Crom. and Jer. 48.

A plea of right of way stated a surrender to the defendant of a copyhold, with all ways then used by the tenants and oc

cupiers thereof, and that the defendant was admitted and continued seised, and being so seised and having occasion to use the way, committed the trespass. The replication traversed the right of way being used at the time of the surrender, and there was a new assignment that the defendant used the way for other purposes, to which the defendant pleaded not guilty. The right of way was established in evidence, but it appeared that when the trespass was committed, the tenement, in respect of which the way was claimed, was in the possession of a tenant, and that the defendant as landlord went over the locus in quo to assert a right to the way which had been obstructed. The court held that the defendant had a right so to use the way, and that the language of the plea comprehended all the purposes for which a person seised of the tenement might lawfully use the way. Proud v. Hollis, 1 B. and C. 8.

Evidence on plea of right of common.] On a right of common pleaded, the plaintiff may either deny the prescriptive or other right stated in the plea, or he may traverse the measure of the common, viz. that the cattle were the defendant's own cattle, and that they were levant and couchant upon the premises and commonable cattle. Robinson v. Raley, 1 Burr. 316, B. N. P. 93. But under this replication the plaintiff will fail if it appear that some of the cattle were the defendant's commonable cattle levant and couchant, for the number mentioned in the declaration is not material. 1 Saund. 346, e (n), Ellis v. Rowles, Willes, 638. The plaintiff in such case should new assign. The plaintiff may also reply an approvement of the common, if it be common of pasture, Glover v. Lane, 3 T. R. 445, 1 Saund. 353, b (n), or that the common has been enclosed for upwards of twenty years, and if issue be taken on this replication, and it appear in evidence that any part of the common has been enclosed less than twenty years, the plaintiff will fail. Hawke v. Bacon, 2 Taunt. 156. And it has lately been held, that upon issue joined on the right of common, the plaintiff may prove a custom for the Lord of the Manor to enclose parcels of the waste, and a grant to himself of the locus in quo under such custom. Arlett v. Ellis, 7 B. and C. 346.

Where in trespass for breaking and entering the plaintiff's close, the defendant in his plea prescribed in right of a messuage and land, for a right of common of pasture on a down or common, whereof the close, &c. before the wrongful separation thereof, was parcel, and justified the trespass, because the close in which, &c. was wrongfully enclosed and separated from the rest of the common, and the plaintiff replied, that the close in the declaration mentioned, in which, &c. was a close called Burgey Cleave Garden, and had for thirty years and more been separated, and divided and enclosed from the common, and occupied and enjoyed all that time in severalty,

and adversely to the person holding the messuage and land, in respect of which the right of common was claimed, and the defendant rejoined that the close in which, &c. had not been occupied or enjoyed for thirty years or upwards, in severalty or adversely, as alleged in the replication; and the jury found that part of the garden had been enclosed within the thirty years, and that the alleged trespass was committed in that part of the garden only; it was held that upon this finding the defendant was entitled to the verdict, whether the words of the issue, "the close in which," &c. constituted an entire or divisible allegation; if it was an entire allegation it comprehended the whole of the enclosure to which the name of Burgey Cleave Garden attached, and in that case the plaintiff was bound to prove that the whole of the garden had been enclosed upwards of thirty years, or if it was a divisible allegation, it was confined in its meaning to that spot in which the trespass had been committed, and the jury having found that the spot had not been enclosed thirty years, it was immaterial whether the rest had been so or not. Richards v. Peake, 2 B. and C. 918.

Evidence on plea of license.] If to a plea of license the plaintiff reply a denial of the license, the defendant must prove a license sufficient to entitle him to commit the act complained of. The keeping open of the doors of a house in which there is a public billiard table, is a license in fact to all persons to enter for the purpose of playing. Ditcham v. Bond, 3 Campb. 525. It is not sufficient to show a license by a servant, unless it be in law the license of the master, Holdingshaw v. Rag, Cro. Eliz. 876; or by a wife; Taylor v. Fisher, Cro. Eliz. 245; or by a daughter, Cock v. Wortham, Selw. N. P. 1040. A license includes, as incident to it, a power to do every thing without which the act licensed cannot be done. Thus if A. licenses B. to enter his house to sell goods, B. may take assistants, if necessary, for the purpose of selling the goods, and if it be pleaded that B. and C. and D. his servants, by his command entered for that purpose, and necessarily continued there for so long, it will be intended that it was necessary for them all to enter, Dennet v. Grover, Willes, 195; but an authority from a tenant to his landlord, in the absence of the former, to let the premises, will not justify the landlord in entering the premises (the key being lost) through a window, by means of a ladder, in order to show the house. Ancaster v. Milling, 2 D. and R. 714.

If the plaintiff in fact did license the defendant, and the defendant has exceeded the license, such fact cannot be given in evidence under a denial of the license, but should be new assigned; Ditcham v. Bond, 3 Camph. 524, 1 Saund. 300, d (n); but it seems that where the defendant pleads that he commit