over the said land of the plaintiff to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway, at all times of the year, for the more convenient occupation of the said land of the defendant, and the alleged trespasses were a use by the defendant of the said way.

9. Right of Way of Necessity.

OBS. See Forms, &c. 3 Chit Plead. 7th ed. 395; Harr. Ind. Way, XII. 3, and 2 Bing. 76; Proctor v. Hodgson, 10 Ex. 824; Pinnington v. Galland, 9 Ex. 1; forms in cases there cited. Buckby v. Coles, 5 Taunt. 311; Holmes v. Goring, Pearson v. Spencer, 1 B. & S. 571; Eastern Counties Ry. Co. v. Dorling, 5 C. B. N. S. 821.

[A right of way of necessity is an incident to a grant of land, where there is no access to the land granted except over remaining land of the grantor; also where there is no access to remaining land of the grantor except over the land granted. 1 Wms. Saund. 323 (6); Howton v. Frearson, T. R. 50; Pinnington v. Galland, 9 Ex. 1; Brigham v. Smith, 4 Gray, 297; Seymour v. Lewis, 13 N. J. 444; White v. Bass, 7 H. & N. 732; Collins v. Prentice, 15 Conn. 39; Brice v. Randall, 7 Gill & J. 349; Marshall v. Trumbull, 28 Conn. 183; Kimball v. Cocheco R. R. 27 N. H. 449; Nichols v. Luce, 24 Pick. 102; Wissler v. Hershey, 23 Penn. St. 333. Mere necessity, apart from the relation of grantor and grantee does not give any right of way over the land of another. Bullard v. Harrison, 4 M. & Sel. 387; and see Proctor v. Hodgson, 10 Ex. 824; Tracy v. Atherton, 35 Vt. 52. And the plea of a right of way of necessity must show how it arises by way of grant. Bullard v. Harrison, 4 M. & Sel. 387. This right of way continues only so long as the necessity lasts, and is extinguished by the grantor or grantee obtaining access to the land by other ways; Holmes v. Goring, 2 Bing. 76; Pierce v. Selleck, 18 Conn. 321; Viall v. Carpenter, 14 Gray, 126; Nichols v. Luce, 24 Pick. 102; Gayetty v. Bethune, 14 Mass. 49; Dodd v. Burchell, 1 H. & C. 122; Collins . Prentice, 15 Conn. 39; White v. Leeson, 5 H. & N. 53; hence the plea must show a necessity, by reason of no other way at the time of the trespass. Holmes v. Goring, 2 Bing. 76; Proctor v. Hodgson, 10 Ex. 824; Gayetty v. Bethune, 14 Mass. 49; M’Donald v. Lindall, 3 Rawle, 492. It seems that the way of necessity is the way most convenient for the purpose. See Morris v. Edgington, 3 Taunt. 24. As to the selection of the course in which the way of necessity is to pass, see Nichols v. Luce, 24 Pick. 102; Holmes v. Seely, 19 Wend. 507; Capers v. Wilson, 3 McCord, 170; Smiles v. Hastings, 24 Barb. 44; Pearson v. Spencer, 1 B. & S. 584. A right of way may be implied by reason of necessity, upon the devise of lands in several parcels. Pearson v. Spencer, 1 B. & S. 571; 3 Ib. 761.

9a. Plea of Private Right of Way of Necessity.

That at the time of the alleged trespass he was seised in fee of a close called next adjoining to the said close of the plaintiff; and J. K., whose estate in the said close called the defendant then had, was at the time of the making of the conveyance hereinafter mentioned seised in fee as well of the said close of the plaintiff as of the said close called and the said J. K. being so seised of the said closes respectively, before the alleged trespass granted the said close of the plaintiff to L. M. and his heirs and assigns; and at the time of the said grant the said J. K. had not, nor had he at any time afterwards, nor had the defendant, or any other person having the estate of the said J. K. in the said close called at any time any way to or from the said close called otherwise than from or to a public highway over the said close of the plaintiff; and by reason thereof the said J. K. and all other persons having the estate of the said J. K. in the said close called

and

the said defendant so having the estate of the said J. K. therein as aforesaid, from and after the time of the said grant necessarily had and of right ought to have had a way on foot and with horses and carriages from the said public highway over the said close of the plaintiff to the said close called ——————, and from the said close called over the said close of the plaintiff to the said public highway, at all times of the year, for the necessary use and occupation of the said close called the same way being the nearest and most convenient way over the said close of the plaintiff to the said close called and the alleged trespass was a use by the defendant of the said way.

Like pleas. Howton v. Frearson, 8 T. R. 50; Buckby v. Coles, 5 Taunt. 311; Holmes v. Goring, 2 Bing. 76. Plea of a right of way of necessity created by devise of the tenements to separate devisees, there being no way to the one except over the other. Pearson v. Spencer, 1 B. & S. 571; 3 Ib. 761.]

10. New Assignment extra viam. (y)

Ante, 673.

11. Replication to a Plea of Twenty Years' Enjoyment of a Way, that it was enjoyed by Leave and License of the Plaintiff extending over the Whole Time.

OBS.

See Colchester v. Roberts, 4 M. & W. 769; [Bennison v. Cartwright, 5 B. & S. 1.] A parol license must be replied to a twenty years' plea, if it cover the whole of that time, because under such a license the party may be said to enjoy the way "of right and without interruption " for the period mentioned in the plea; and therefore the replication must be in confession and avoidance. Tickle v. Brown, 4 Ad. & E. 383.

But if the license has been renewed from time to time, on applications by the defendant to use the way during the twenty years, then since every time such applications were made the occupiers admitted that the former license had expired, and that the continuance of the enjoyment was thereby broken, that may be shown on a simple traverse of the twenty years' right. Monmouth Canal Co. v. Harford, i Cr., M. & R. 614; [Bennison v. Cartwright, 5 B. & S. 1.] See an instance of a replication in confession and avoidance falling within this principle, and showing that the defendant could not have exercised the right by custom, prescription, or grant. Kinlock v. Neville, 6 M. & W. 795. But the license must be in writing to defeat the forty years' plea. See 2 & 3 W. 4, c. 72, s. 2; Tickle v. Brown, supra. Under a simple denial, therefore, of that plea, the plaintiff may show that the previous enjoyment of the way was by parol license. Beasley v. Clark, 2 Bing. N. C. 709.

12. Plea of Justification under a Public Right of Way. (z) That before and at the time of the alleged trespasses there was and of right ought to have been a certain common and public highway (a) into, through, over, and along the said close, for all persons to go, return, pass, and re-pass, on foot and with horses and other cattle and carriages, at all times of the year,

(y) If it is alleged that the acts complained of were not done in exercise of the right set up, a new assignment is necessary. A joinder of issue would merely deny the defendant's possession and the existence of the right. See Eastern Counties Ry. Co. v. Dorling, 28 L. J. C. P. 202; 5 C. B. N. S. 821.

(a) The plea for a footpath will be sinilar, substituting the word "footway" for "highway," and omitting the averments about horses, cattle, and carriages, &c. A simple denial of this plea, would let in evidence that the way had ceased by the award of inclosure commissioners under a local statute. Williams v. Wilcox, 8 Ad. & E.

(z) Pipe v. Fulcher, 28 L. J. Q. B. 12; El. & El. 111; Petrie v. Nuttall, 25 L. J. Ex. 331. 200; 11 Ex. 569.

at their free will and pleasure; wherefore the defendant, having occasion to use and using the said way, committed the alleged trespasses. (b)

[13. Plea of a Public Highway justifying the Removal of Obstructions. That at the time of the alleged trespasses there was and of right ought to have been a common and public highway over the said land of the plaintiff for all persons to go and return, on foot and with horses, cattle, and carriages, at all times of the year, at their free will and pleasure; and the defendant, having occasion to use the said way, then entered into and upon the said land of the plaintiff and along the said highway, then using the same as he lawfully might for the cause aforesaid, and because the said [wall] had been erected and then was wrongfully in and across the said highway, obstructing the same and preventing the convenient use thereof, the defendant necessarily pulled down and destroyed the said [wall] for the purpose of using the said highway, doing no unnecessary damage in that behalf, which are the alleged trespasses. Like pleas. Webber v. Sparks, 10 M. & W. 485; Elwood v. Bullock, 6 Q. B. 383; Bracegirdle v. Peacock, 8 Q. B. 174; Dawes v. Hawkins, 8 C. B. N. S. 848; Morant v. Chamberlain, 6 H. & N. 540. Plea of a public right of way along a navigable river, justifying the destruction of a weir fixed in the channel. Williams v. Wilcox, 8 Ad. & E. 314. A like plea justifying trespasses on a landing-stage of the plaintiff. Eastern Counties Ry. Co. v. Dorling, 5 C. B. N. S. 821.]

14. Replication to a Plea of Right of Way justifying the Removal of Obstructions, that the Obstruction removed was a Booth which Plaintiff had erected at a Fair under a Custom, and that in erecting the Booth the Plaintiff had left sufficient Space for the Public to pass. Elwood v. Bullock, 6 Q. B. 383; Webber v. Sparks, 10 M. & W. 485; Dawes v. Hawkins, [8 C. B. N. S. 848;] see Morant v. Chamberlain, [6 H. & N. 541.

[Replication of a prescriptive right to place goods upon the public way. Morant v. Chamberlain, 6 H. & N. 541.]

WEIRS.

Plea that a Weir was wrongfully erected across a Navigable River, and Law.

Williams v. Wilcox, 8 Ad. & E. 314.

See the declarations against a witness for not obeying a subpoena, ante, 633, and law, &c. in the notes. Forms of pleas, Betteley v. M'Leod, 3 Bing. N. (b) If the removal of an obstruction is to be justified, see form 4, ante, 738.

OBS. C. 405. Not guilty would put in issue only the default or breach of duty, i. e. the non-attendance alleged, and not the inducement of the preliminary proceedings. It is necessary to traverse specially the allegation in the declaration, that the plaintiff had a good cause of action, and that he could have proceeded to trial without the testimony of the defendant, otherwise those facts will be conclusively admitted. Needham v. Fraser, 3 D. & L. 190; 1 C. B. 815; ante, 634, note (p). The defendant might also traverse any other of the material allegations in the declaration, as that the plaintiff prosecuted out of the said court the said writ of subpoena, that he caused to be shown or made known such writ to the defendant a reasonable time before, &c.; see Barber v. Wood, 2 Moo. & R. 172; ante, 633, note (1); that he paid a reasonable sum for his costs and charges, &c.; ante, 634, note (0); that the defendant's testimony was material, &c.; ante, 634, note (q); or in the case of an action for not attending on a subpœna duces tecum, he might deny that he could have produced the documents, &c. or that they were material.

Plea that the Evidence of the Defendant was not material or necessary.

That the evidence and appearance of the defendant were not material on behalf of the plaintiff on the said trial, as alleged.

INDEX.

N. B.—THE ROMAN TYPE REFERS TO THE FORMS GIVEN IN THE TEXT AND NOTES, AND THE ITALIC TO THE
NOTES AND OBSERVATIONS.

amendment after misjoinder, 268.

non-joinder of plaintiff, 268.

where joint, 268.

if objection appear on face of pleading, 269.

amendment after non-joinder of plaintiffs, 269.

misjoinder of defendant fatal unless struck out before verdict, 269.

amendment after misjoinder of defendant, 269.

non-joinder of defendant, plea in abatement, 269.

plea in, must be accompanied by affidavit, 269.

Statutes relating to pleas in abatement.

3 & 4 W. 4, c. 42, 268.

1. Plea that a person jointly liable with the defendant is not sued with him,
270.

1a. Form of answer in abatement in Massachusetts, 270.

2. Affidavit of truth of plea in abatement, 270.

3. Replication that the defendant is solely liable, 271.

4. Replication that the party not sued is resident out of the jurisdiction of
the court, 271.

5. Replication to a plea of non-joinder that the other contractor is a certi-
ficated bankrupt, 271.

6. Plea that a bill of exchange was accepted by the defendant jointly with
another, 271.

7. Plea by assignee of a lease that the lease vested in another jointly with
the defendant, 271.

8. Plea of the non-joinder of a co-executor as a defendant, 272.

9. Plea of the coverture of plaintiff, 272.

9a. Form under Massachusetts practice act, 272.

10. Plea of the coverture of defendant, 272.

10a. Another form, 273.

11. Replication that defendant is not married, 273.

12. Plea that another action is pending for the same demand, 273.

13. Plea by an attorney, privilege of being sued in another court, 273.