by pleading over (1). In declarations for taking animals feræ naturæ, it must be stated that the animals were either dead, tame, or confined; otherwise property in the plaintiff cannot be alleged; at least such allegations will be bad on demurrer. In trespass for taking duas damas ipsius plaintiff, in a certain close of the plaintiff, called the park (m); on general demurrer, the declaration was holden to be bad, because a person cannot have property in deer unless they are tame and reclaimed (3). The value of fixtures may be recovered under the terms, "goods, chattels, and effects," in a declaration in trespass (n). As to the necessity of alleging the trespass vi et armis and contra pacem, see ante, p. 29, 30. IV. Of the Pleadings; and herein of the New Rules, p. 1334: 1. Of the Plea of Not Guilty, p. 1334. 2. Accord and Satisfaction, p. 1336. 3. Liberum Tenementum, p. 1337. 4. Estoppel, p. 1339. 5. License, p. 1340. 6. Process, p. 1343. 7. Right of Common, p. 1344. 8. Right of Way, p. 1344. 9. Tender of Amends, p. 1350. 1. Of the Plea of Not Guilty. THE general issue in this action is, not guilty. Under stat. 3 & 4 Will. IV. c. 42, s. 1 (o), (which provides that the contemplated rules of pleading shall not disable any person from pleading the general issue, and giving the special matter in evidence, where by statute he may now do so,) an overseer sued in trespass for taking A.'s goods, may still prove, on plea of not guilty, that he, as over (1) See an instance of this kind in Brooke v. Brooke, 1 Sidf. 184. (m) Mallocke v. Eastly, 3 Lev. 227. (n) Pitt v. Shew, 4 B. & A. 206. See Dalton v. Whittem, 3 Q. B. 961. (a) See ante, p. 156. (3) John Rough being convicted on an indictment for stealing a pheasant,* value 40s., of the goods and chattels of H. S., all the judges, on a second conference, in Easter Term, 1779, after much debate and difference of opinion, agreed that the conviction was bad; for in cases of larceny of animals feræ naturæ, the indictment must show that they were either dead, tame, or confined; otherwise they must be presumed to be in their original state; and that it is not sufficient to add "of the goods and chattels" of such an one. *Rough's case, 2 East, P. C. 607. seer, distrained the goods for a poor's rate due from B., and that the goods were the goods of B., and not of A. (p). Wherever a statute says that a party may prove his defence under the general issue, it means that he may prove the whole matter of defence (g); and the plea of not guilty so pleaded, is not appended to the new rules of H. T. 4 Will. IV., but has the same operation as it had before they were made; putting in issue not only the defences peculiar to the statute, but all that would have arisen at common law (r). By R. G. H. T. 4 Will. IV., in actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant 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. In actions of trespass de bonis asportatis, the plea of not guilty shall operate as a denial of the defendant having committed the trespass alleged by taking or damaging the goods mentioned, but not of the plaintiff's property therein (4). To a declaration for breaking and entering plaintiff's close, the defendant pleaded-1st, Not Guilty; 2ndly, that the close was not the close of the plaintiff; 3rdly, that the close was the soil and freehold of the defendant it was holden (s), that evidence of possession was sufficient to entitle the plaintiff to a verdict on the second plea. By (p) See stat. 43 Eliz. c. 2, s. 19; Haine v. Davey, 4 A. & E. 892; 6 Nev. & M. 356. (g) Per Patteson, J., S. C. (r) Ross v. Clifton, 11 A. & E. 63; and 1 G. & D. 72, ante, p. 930. (8) Heath v. Milward, 2 Bingh. N. C. 98, recognized by Patteson, J., in Carnaby v. Welby, 8 A. & E. 878; and in Browne v. Dawson, 12 A. & E. 624; 4 P.. & D. 355. (4) In trespass for seising and taking certain goods, &c., of the plaintiff, a plea, denying that the goods are the plaintiff's, was holden by the Court of Exchequer to put in issue the property in as well as the possession of the goods;* Parke, B., observing, "the doctrine of the Court of Q. B., in the case of Whittington v. Boxall,† is applicable to land and not to goods. How can a defendant dispute the plaintiff's title to goods except by denying his possession? There is no plea of liberum tenementum in such a case. This court and the court of Q. B. have certainly come to a different decision on the same point; the court of Q. B. having held,† that there ought to be a special plea in order to dispute the plaintiff's title, as distinguished from his mere possession: we have thought differently.‡ Before the new rules, the general issue, not guilty, put in issue the plaintiff's title, because under that plea the defendant might dispute both the fact of the trespass and also the fact that it was committed in the plaintiff's close. Now, the plea denying the close to be the plaintiff's is a denial of his title to the same extent as he would have been obliged to prove it under the general issue." *Harrison v. Dixon, 12 M. & W. 142. Whittington v. Boxall, 12 Law J. (N. S.) Q. B. 318. 4 , by pleading over (1). In declarations for tak IV. Of the Pleadir 1. Of the P 7 ass brought kind, their y by virtue of e with such rents or disposal of any day plead the general In a case where rent ved his goods clandestinely ndlord had seized them as a owed by the preceding stat. olden, that to an action of trespass the landlord for such seizure, the special matter in evidence upon the he preceding clause (sect. 21); for that se cases where the distress is made upon In this case, the defence must be pleaded 2. Accord ais arbitrarily made defendant to exclude his pleas, they in 2. Accord and Satisfaction. Accord and satisfaction, being a good plea in all actions where damages only are to be recovered, is consequently a good plea in trespass (2); but a plea of accord, without satisfaction cannot be supported. Hence, in trespass for taking cattle, it cannot be pleaded, that it was agreed that plaintiff should have his cattle again" (a); for this is no satisfaction for the injury done. So where to trespass for breaking and entering the plaintiff's close, the defendant pleaded "that in Easter Term (b), in the thirty-first year of the present reign, the plaintiff declared against the defendant in this cause for the several trespasses above supposed by the defendant TRESPASS 1335 poor's rate due from B, and that nd not of A. (p). Wherever a 'is defense uber the le matter of debtoong, appadd to the tow rato t as it had the bes "ards, and before plea pleaded in agreed between the plaintiff n then lately commenced settled, as follows: that the Junt of the matter in dispute, and arges; and further, that whatsoa been, or might be in being, touchay of the date of the said agreement, e for ever; and they further agreed to sum of 1007., whoever should commence an pect to anything in being to the then present averred, that the present action, and the action mentioned, were the same. On demurrer to this ntended, in support of the plea, on the authority of in Reniger v. Fogassa (c), that the agreement which ual plea in bar, is either such an agreement, as is executed. sfied with a recompense in fact, or with an action or other to execute it and to recover a recompense; that here the les agreed to bind themselves in the penalty of 1007. to abide their accord; that, therefore, was a new remedy, which fell directly within the authority cited. But the court were of opinion that the plea was bad; Ashhurst, J., observing, that, "supposing the proposition were true, that whenever the agreement is such, for the breach of which an action might be maintained, [it may be pleaded in bar,] yet it is incumbent on the party pleading it, to show that an action could have been supported on it. In order to found an action on this agreement, the plaintiff must have stated not only the agreement, but also that he tendered an obligation in 100., ready executed to the defendant, and that the defendant refused to execute, &c.; but no action could have been sustained on this contract, without that previous step, which is not pleaded here." at 3. Liberum Tenementum. In trespass to real property, the defendant may plead that the close in which, &c. is the freehold (liberum tenementum) or customary tenement of the defendant, or of a third person under whom he acted. By this plea the defendant admits that the plaintiff is in possession, and that he himself is primâ facie a wrong-doer; but he undertakes to show a title in himself, which shall do away with the presumption arising from the plaintiff's possession. This he is bound to do, either by showing title by deed, in the usual way, or by proving a possessory title for twenty years. Hence, this plea is not supported by proof of the exercise of acts of ownership by defendant for a period of less than twenty years, where it appears that before the (c) Plowd. 5, 11, b. stat. 11 Geo. II. c. 19, s. 21, "In actions of trespass brought against any person entitled to rents or services of any kind, their bailiff or receiver, or other person, relating to an entry by virtue of this act, or otherwise, upon the premises, chargeable with such rents or services, or to any distress, or seizure, sale, or disposal of any goods or chattels thereupon, the defendants may plead the general issue, and give the special matter in evidence." In a case where rent being in arrear (r), the tenant had removed his goods clandestinely from the demised premises, but the landlord had seized them as a distress within thirty days, as allowed by the preceding stat. 11 Geo. II. c. 19, s. 21; it was holden, that to an action of trespass brought by the tenant against the landlord for such seizure, the defendant could not give the special matter in evidence upon the general issue by virtue of the preceding clause (sect. 21); for that clause is confined to those cases where the distress is made upon the premises demised. In this case, the defence must be pleaded specially (s). Where a person is arbitrarily made defendant to exclude his testimony, he may, if nothing is proved against him, be acquitted, and sworn as a witness for the other defendants (t). But if there be the slightest evidence against one of the defendants, he cannot be acquitted so as to make him a witness (u). With regard to defendants, against whom there is not any evidence, the rule is, that the verdict in their favour is to be taken at the end of the plaintiff's case (x); but where defendants against whom the counsel abandons the case have pleaded special pleas of justification, they have an interest in the record, by reason of their liability to the costs of those pleas, and ought not to be acquitted till the special pleas in which they have joined are disposed of (y). 2. Accord and Satisfaction. Accord and satisfaction, being a good plea in all actions where damages only are to be recovered, is consequently a good plea in trespass (z); but a plea of accord, without satisfaction cannot be supported. Hence, in trespass for taking cattle, it cannot be pleaded, that it was agreed that plaintiff should have his cattle again" (a); for this is no satisfaction for the injury done. So where to trespass for breaking and entering the plaintiff's close, the defendant pleaded "that in Easter Term (b), in the thirty-first year of the present reign, the plaintiff declared against the defendant in this cause for the several trespasses above supposed by the defendant |