Where there is a general district of land known by one general name, and there are several occupiers in the same district, each person may call his own part of the district by the general name(d).

The plaintiff may allege generally, "that the defendant broke and entered certain land of the plaintiff, called, etc., and depastured the same with certain cattle "(e) If special damages has resulted to the plaintiff from excavations made by the defendant in the soil of the plaintiff, the nature of the damage should be stated(f).

If the plaintiff declares as reversioner for an injury done to his reversion, the declaration must allege it to have been done to the damage of the reversion, or must state an injury of such a permanent nature as to be necessarily prejudicial thereto; and the want of such an allegation is cause for arresting the judgment(g).

424 What may be given in evidence under the plea of not guilty.—In actions for trespasses upon land, the plea of not guilty operates as a denial of the defendant's having committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession, or right of possession, of that place; which, if intended to be denied, must be traversed specially. All other pleas in denial must take issue on some particular matter of fact alleged in the declaration; and all matters in justification, and in confession and avoidance of the cause of action must be pleaded specially(h).

425 Of pleas denying the plaintiff's title or right of possession. If the defendant intends to dispute the plaintiff's right of possession of, or title to, the land or messuage on which the trespass is alleged to have been committed, he must plead a plea, alleging that such land or messuage was not the land or messuage of the plaintiff, or a plea of liberum tenementum, which is a plea alleging that such close or land was the soil and freehold of the defendant. Under the plea that the land or messuage is not the plaintiff's, both the possession and title are in issue(i);

(d) Cooke v. Jackson, 9 D. & R. 496.

(e) 15 & 16 Vict. ch. 76, Sched. Whether the beasts get there from being driven there by the plaintiff, or whether they go there of their own accord, from want of proper custody exercised over them, "is all one," ante, pp. 149, 327.

(f) Ante, pp. 87, 178.

(g) Baxter v. Taylor, 4 B. & Ad. 74. Jackson v. Pesked, 1 M. & S. 234. Althause v. Rice, 4 E. D. Smith (N. Y. C. P.), 347.

(h) Reg. Gen. Hill. Term, 16 Vict.; 1 Ell. & Bl. App. lxxxi., lxxxii.; post, ch. 21.

See Hill v. Morey, 26 Vt. 178; Todd v. Jackson, 2 Dutch. (N. J.) 525; Ward v. Bartlett, 12 Allen (Mass.), 419; Snider v. Myers, 3 W. Va. 195.

But it has been held that the defendant may, under the general issue, show a right of way over the close. Strout v. Berry, 7 Mass. 385. Or soil and freehold in himself. Monumoi v. Rogers, 1 Mass. 159.

(i) Jones v. Chapman, 2 Exch. 803; 18 Law J., Exch. 456; overruling Whittington v. Boxall, 5 Q. B. 143.

but this is not the case with the plea of liberum tenementum, which admits the plaintiff's possession, but denies his title(k). Under these pleas, the defendant may show that the plaintiff is the trespasser, and not the defendant().

426 Of the plea of liberum tenementum, or plea of freehold.-The plea of liberum tenementum, is a plea alleging that the close or land in which the trespass was committed was the soil and freehold of the defendant. This plea, as it has justly been observed, though held valid on account of long usage, is bad in reasoning, because the defendant may be a trespasser, though he is himself the freeholder; and to make the plea a consistent defence, it has been held that it admits such a possession in the plaintiff as would enable him to maintain the action against a wrong-doer, and to assert a freehold in the defendant, with a right to the immediate possession as against the plaintiff(m). The plea was originally invented for the purpose of driving the plaintiff to prove his title to the land in dispute. And if the declaration goes on to charge the defendant with having expelled the plaintiff from the dwelling-house, and seized and removed his goods, the plea covers and justifies the expulsion and removal of the goods, as well as the breaking and entering the house(n); but such a plea is no answer to an assault upon the person(o). 427 Replication-Estoppel.-To a plea of liberum tenementum the plaintiff may reply, that the defendant ought not to be admitted to plead the plea, because, etc. (showing some ground of estoppel); and the defendant must answer the replication by a rejoinder: but if a party means to insist on an estoppel, he must take the first opportunity of doing so which the pleadings afford him; if he fails to do this, he leaves the matter at large, so that the jury may decide upon the evidence before them, without regard to an estoppel(p). If an estoppel cannot be pleaded it may be relied on nevertheless at the trial(q). 428 of the plea of leave and license-Equitable defence.-The form of the plea of leave and license is, that the defendant did what is complained

(k) Slocombe v. Lyall, 6 Exch. 119. man, 16 Md. 296. But a plea that the

Gilchrist v. McLaughlin, 7 Ired. 310. Keener v. Kauffclose was the close and soil of the defendant, is not a plea of liberum tenementum, and the defendant has only to prove the right of possession. Millison v. Holmes, 1 ̊Carter (Ind.), 45. See Appleby v. Obert, 1 Harr. 336.

(1) Burling v. Read, 11 Q. B. 908; 19 Law J., Q. B. 291.

(m) Ryan v. Clark, 14 Q. B. 71; 18 Law J., Q. B. 269.

(n) Meriton v. Coombes, 9 C. B. 787; 19 L. J., C. P. 336. Taylor v. Cole, 1 Smith's L. C. 119 127, 6th ed.

(0) Roberts v. Taylor, 1 C. B. 117. Tribble v. Frame, 3 Monr. 13.
(p) Feversham v. Emerson, 11 Exch. 385; 24 Láw J., Exch. 254.
(q) Whittaker v. Jackson, 23 Law. J., Exch. 181.

of by the plaintiff's leave(r). Under this plea it may be shown that the plaintiff granted to the defendant a right to enter upon his land, or granted him a lease thereof, or a license to occupy, or leave to enter upon and take possession of the locus in quo, and expel the plaintiff therefrom(s). Proof may be given under this plea of an exception of timber-trees in a lease made by the defendant to the plaintiff, or a reservation in a parol demise of hedges, trees, and thorn-bushes, with the lop and top, giving the defendant a right to enter upon the land, for the purpose of cutting and carrying away the trees or the loppings of the hedges and bushes(t); or it may be shown that the plaintiff took the defendant's goods, and carried them on to his own land; whereupon the defendant entered upon the plaintiff's land, with his (implied) leave, and carried them back to the place from whence the plaintiff took them(u). If the plea does not extend to and cover the whole of the trespasses to which it is pleaded, the plaintiff will be entitled to judgment(). Whenever a person has been induced to lay out money upon the land of another, upon the faith of a verbal agreement, that in consideration of the expenditure the person laying out his money shall enjoy an easement, privilege, or profit upon the land, the privilege cannot in equity be withdrawn, as we have seen, by the landlord, without tendering full compensation for the expenditure(y); but the verbal agreement or parol license is not pleadable, it seems, by way of equitable defence to an action for trespass, inasmuch as, to constitute a good equitable defence, the fact must be such as to entitle the defendant to absolute and unconditional relief, or to a perpetual injunction(2).

429 Special pleas of matters in confession and avoidance-Matters of excuse. -All matters in confession and avoidance are required to be specially pleaded(a), such as the defence that the defendant's cattle escaped

(r) 15 & 16 Vict. c. 76, Sched. B., No. 44.

(8) Kavanagh v. Gudge, 7 M. & Gr. 316; 7 Sc. N. R. 1025. That a license must be specially pleaded to be available, see Hill v. Morey, 26 Vt. 178; Hollenbeck v. Rowley, 8 Allen (Mass.), 473; Stambaugh v. Hollabaugh, 10 Serg. & R. 357; Gambling v. Prince, 2 N. & M. 138; Hetfield v. Central R. R. Co., 5 Dutch. (N. J.) 571.

Proof of a lease will not support a plea of license. Johnson v. Carter, 16 Mass. 443. (t) Hewitt v. Isham, 7 Exch. 77; 21 Law J., Exch. 35.

(u) Vin. Abr. TRESPASS, la, Patrick v. Colerick, 3 M. & W. 485. As to breaking open an office to get at books and papers, see Burridge v. Nicholetts, 6 H. & N. 383; 30 Law J., Exch. 145. See Chase v. Jefferson, 1 Houston (Del.), 257.

(x) Barne v. Hunt, 11 East, 451.

(y) Laird v. Birkenhead Rail. Co., Johns. 500. Unity Joint Stock Banking Assoc. v. King, 25 Beav. 79; 27 Law J., Ch. 585. Ante, pp. 186, 187.

(z) Hyde v. Graham, 32 Law J., Exch. 27. Wakley v. Froggatt, 33 Law J., Exch. 5. Addi son on Contracts, ch. 28, s. 2, 6th ed. But see Allen v. Walker, L. R., 5 Exch. 187.

(a) Reg. Gen. Hil. Term, 16 Vict.; 1 Ell. & Bl. App. lxxxi., lxxxii.

from the defendant's land, and trespassed on the land of the plaintiff, through the neglect of the plaintiff to repair fences which he was bound by contract or by prescription to repair and maintain. Pleas of this sort must show how the obligation to repair arises(b). 430 Pleas justifying a trespass-Every defendant who justifies his entering or remaining upon the land of the plaintiff against his will, and, therefore, primâ facie, against right, is bound to show, on the face of his plea, such circumstances as establish his right in abridgment of the general rights of property (c). If he justifies his entry in the exercise and enjoyment of a profit à prendre, or an easement (ante, p. 96), he must set forth in his plea the foundation of his right, showing whether he claims by grant or by prescription, or under a mere personal license of pleasure-which extends only to the individual licensee, and cannot be exercised by his servants-or under a license of profit, which enables his servants to justify under it(d).

If the defendant claims under a particular estate, he must in his plea aver the continuance of that estate. Thus, if he derives his title from a tenant-for-life, he must aver and prove the continuance of the life interest(e). Every plea of justification in trespass must, of course, extend to and cover the whole of the trespasses intended to be justified(f); but it need not be pleaded to acts which are not relied upon as trespasses, but are mere matters of aggravation, and not of substantive charge(g). Where the declaration charges the defendant with breaking and entering the plaintiff's house, and expelling him therefrom, a plea of justification, showing a good cause for the breaking and entering, is a full answer to the declaration, for the breaking and entering are the gist of the action, and the expulsion is only matter of aggravation. If the plaintiff means to insist on the expulsion as making the defendant a trespasser ab initio, he must new assign it(h).

431 Justification of trespass under the powers and provisions of an Act of Parliament. Where the plaintiff complained that the defendant had built a bridge which encroached upon and projected over the land of the plaintiff, it was held that the defendant might plead generally

(b) Faldo v. Ridge, Yelv. 74, 75; ante, p. 149.

(c) Hayling v. Okey, 8 Exch. 545.

(d) Ante, pp. 96, 97. Wickham v. Hawker, 7 M. & W. 78. Moore v. Earl of Plymouth, 1 Moore, 346; 3 B. & Ald. 66. Bartlett v. Prescott, 41 N. H. 493,

(e) Dayrell v. Hoare, 12 Ad. & E. 368.

(f) Curlewis v. Laurie, 12 Q. B. 640.

(g) Pratt v. Pratt, 2 Exch. 413. Davison v. Wilson, 11 Q. B. 903.

(h) Taylor v. Cole, 3 T. R. 297; 1 Smith's L. C. 119-127, 6th ed.

that the several acts, matters, and things of which the plaintiff complained were lawfully done by the defendant, in exercise and by virtue of the powers given to the defendant by an Act of Parliament, made, etc., and intituled, etc.(i). When the defendant justifies the demolition of a house under the powers and provisions of the Metropolis Local Management Act, or of a portion of a house projecting beyond the general line of the street under the Metropolis Local Management Act (25 & 26 Vict. c. 102) ss. 75 and 107(4), it must be shown that the person damnified had an opportunity of being heard before the board prior to the exercise of the power().

432 Pleas justifying the breaking and entering a dwelling-house without warrant(m) to make an arrest for felony, or to prevent the commission of murder, must show, in the first case, that a felony had been committed, and that there was reasonable ground for believing that the felon was in the house(n); and, in the second case, that the life of some person inside the house was really in dauger; that there were calls for assistance; that the door was fastened; and that it was necessary to break it open and enter the house, and render assistance for the preservation of life(o).

433 Of pleas of justification under a prescriptive title.-When the defendant justifies, under a prescriptive right to enter and take a profit of the soil (ante, p. 112, et seq.), he must set forth in his plea an enjoyment as of right, and without interruption for the full period of thirty years before the commencement of the action(p). And when he claims only an easement, he must set forth a similar enjoyment for the period of twenty years. The Prescription Act, 2 & 3 Wm. 4, c. 71 (ante, p. 138), enacts (s. 5) that in all pleadings where, before the passing of the Act, the party claiming might by law have alleged his right generally, without averring the existence of the right from time immemorial, such general allegation shall be deemed sufficient; and if the same shall be denied, all the matters mentioned and provided in the Act, which are applicable to the case, shall be admissible in evidence to sustain

(i) Beaver v. Mayor, etc., of Manchester, 26 Law J., Q. B. 311. Watkins v. Gt. Northern Rail. Co., 16 Q. B. 961. As to the replication to this plea, see Brine v. Gt. West. Rail. Co., 31 Law J., Q. B. 101, and post, ch. 16.

(k) 18 & 19 Vict. c. 120, s. 76. Brutton v. St. George's, Hanover Square (Vestry of), L. R. 13 Eq. Ca. 339.

(1) Cooper v. Wadsworth Board, etc., 14 C. B., N. S. 180.

(m) As to justification under warrant and in execution of legal process, see post, ch. 18.

(n) Smith v. Shirley, 3 C. B. 142.

(0) Handcock v. Baker, 2 B. & P. 260.

(p) Jones v. Price, 3 Sc. 376; 2 B. N. C. 52. Clayton v. Corby, 2 Q. B. 813. Holford v. Hankinson, 5 Q. B. 584. Cooper v. Hubbuck, 12 C. B., N. S. 456.