Pleadings, Evidence, &c.

plaintiff, and he then prescribes (i) against the plaintiff that the plaintiff and all the tenants and occupiers (j) of the plaintiff's close have been accustomed, &c. to repair the hedge and fence between the two closes (k). The defendant then avers the breach of the fence, by means of which the cattle escaped, and, of necessity, did a small portion of damage. Sometimes it is added, that the defendant drove his cattle from the plaintiff's close as soon as he was made acquainted with or had notice of their intrusion, and, thereby, unavoidably and without unnecessary damage, trampled upon the plaintiff's grass, &c. (1)

This form varies but little where it is employed as a bar to the avowry. Instead of the defendant's possession, that of the plaintiff is stated in the first instance, and the plaintiff then lays down his prescription against the defendant, concluding sometimes that the defendant took away the cattle before the plaintiff could have had any notice of their having strayed. A slip in pleading was once made where a plea of this nature alleged an immemorial obligation upon the defendant to amend and repair the fence between the close in which the cattle were taken and a certain highway lying contiguous. The plea went on thus: "when and so often as need or occasion hath been or required, or shall or may be required to prevent cattle being in the said highway from erring and

(i) Cause must be shewn for the repair, as by prescription, covenant, or otherwise. Yelv. 74, 75, Faldo v. Ridge.

(j) See 1 Salk. 336, Starr v. Rookesby. 2 Ld. Raym. 804, per Holt, C. J.

(k) Or it might be a common or highway. Com. Dig. pl. 3, M. 29. 2 Lutwy. 1357.

(7) See, as to the old mode of pleading, Dy. 365. It is not now necessary to set out the title, Yelv. 74. 3 Salk. 278. Com. Dig. pl. 3, M. 29.

escaping," &c. Now as the cattle could not be in the highway lawfully except as passing there, it was by no means a correct allegation of the prescription to speak of them as being there. They might have been passing and repassing, but they might have been trespassing on the road, and, consequently, upon a special demurrer, judgment was given for the defendant (m).

This plea of a defect of fences is an answer likewise to a justification in trespass for driving cattle that the defendant drove the cattle into a highway. For the defendant had no right to drive beasts from his close and leave them in the road when he had himself been guilty of a breach of duty through non-repair. Thus, the plaintiff brought trespass for chasing his sheep into a highway. The defendant said that the sheep were depasturing unlawfully in his close, wherefore he ordered his servant to drive them into the highway and leave them there. Upon a replication of defect of fences, and a denial of the escape by way of rejoinder, a verdict passed for the plaintiff, and it was urged that the defendant's plea had not been answered, since the defendant had a full right to turn out the strange sheep, although he could neither bring an action, nor distrain damage feasant. But the Court refused a rule for a repleader or to arrest the judgment, being of opinion that the replication was an answer to the defendant's allegations (n).

Care must be taken that a declaration in assumpsit or covenant by a landlord against his tenant for nonrepair should receive a right answer if a defence be attempted. The plaintiff charged his tenant with using the premises let to him otherwise than in a husband-like (m) 2 H. Bl. 527, Dovaston v. Payne.

(n) 8 Adol. & El. 113, Carruthers v. Hollis and Another.

Pleadings, Evidence, &c.

Pleadings,

manner, by neglecting to repair fences upon an implied

Evidence, &c. promise to do so. The defendant pleaded that the

fences became out of order through natural decay, that there was not proper wood assigned by the plaintiff for repairs, and that the plaintiff ought to have set out the wood necessary for the purpose. The plea did not specify the wood required: no request to set out this timber was averred, nor was any custom of the country cited so as to warrant a presumption that no such request was necessary. The plea was held bad (o).

Again, where the landlord sued the defendant in assumpsit for not repairing hedges, the pleas were,1st, That no timber had been assigned by the landlord for repair; 2nd, That there was not any proper timber for the defendant which he had a right to take. Both these pleas were held bad, both in form and substance, for, in the first place, the tenant had failed to make a request to his landlord according to the record, which contained no mention of such a request, and the tenant might, on refusal, take the timber (p). Secondly, by saying that there was no timber to which he had a right, the jury were left to determine a matter of law which could not be correct. The plaintiff, therefore, had judg

ment (q).

It was once held to be no answer to an action of trespass (r), that there had been an exchange of lands between the plaintiff and defendant upon condition that the plaintiff should make the fences (s); but the authority of this case may well be doubted, for the exist

(0) 2 Chit. Rep. 685, Whitfield v. Weedon.

(p) 2 Lutwy. 1480.

(q) Lofft. Rep. 43, Anon.

(r) By three Justices, against the opinion of Popham, C. J. (s) Cro. Eliz. 709, Nowel v. Smith.

ence of an agreement may be presumed in an action upon the case, under the plea of not guilty (t), and there seems to be no good reason why an agreement or deed, if pleaded, should be a bar to an action of trespass. Circuity of action is, at all events, avoided.

Replications, &c.]-If the defendant should plead a distress damage feasant to trespass, the plaintiff may reply that there was a defect of fences. If this plea should itself be used, the plaintiff may answer that the fences were good, but that the cattle of the defendant were unruly and accustomed to break down fences, and so destroyed the plaintiff's hedge, doing the damage complained of, and the plaintiff may then deny the defect, which ought to be done simply without a formal traverse, and with a conclusion to the country (u). The first of these replications arises where the plaintiff seeks to charge the defendant with the repair, and the other where the defendant alleges a breach of the same duty against the plaintiff, but the plaintiff parries the accusation by a denial of the defect. Again, the plaintiff may reply that the defendant wilfully turned the cattle upon his close, for it is not an excuse on the behalf of a defendant in trespass that the fence was out of repair if he, the defendant, drove the beasts onwards to do the trespass (v). Or he may say that the defendant threw down the fences. And, in another plea, if the fact be so, the plaintiff may, of course, deny his obligation to repair, and put that matter at once in issue. And so may the defendant in his replication to a plea in bar to an avowry charging the like defect. By comparing the action of replevin with other proceedings, it is easy to accommo(t) 6 B. & C. 332, 340. (u) 1 Saund. 103 (c).

(v) See Com. Dig. pl. 3, M. 29.

Pleadings, Evidence, &c.

Pleadings,

date the replications to the altered position of plaintiffs Evidence, &c. and defendants. So may the plaintiff reply that he

gave

the defendant in trespass notice to remove the cattle, and this will operate as a new assignment to a plea of escape in an action to recover damages accrued after notice. And the same replication will avail in replevin (x).

The rejoinder of the defendant to the replication of the plaintiff mentioned above, stating that the cattle of the defendant were unruly, and that the breach of the fence was thus occasioned, would be that the cattle escaped through the defect, and not the breach of the fence, a denial which necessarily involves a conclusion to the country, and presents the issue. The ordinary replication, however, in trespass is de injuriá (y). But sometimes the plaintiff traverses the prescription, or the want of repair, i. e. the defect of fences, or the escape modo et formá (≈).

Evidence.]-We will be sparing in our remarks concerning the evidence, because the proofs upon this subject will be found in the books of writers upon that head, and likewise because such proofs either depend upon individual circumstances, or, on the other hand, are, upon many occasions, the same. As, in trespass, where the plaintiff has to show the invasion of his territory. In case, where he must disclose by his witnesses the particular injury which he has sustained through the act of the defendant. In replevin, where the taking is most commonly acknowledged by the defendant. In assumpsit, where the terms of the letting or agreement are brought forward, or the deed in actions of covenant. The plea of defect of fences is also made out by proving

(x) 2 Wm. Saund 285, n. 4.

(y) See 1 Chit. on Pleading, 639.

(z) Com. Dig., tit. Pl., 3, M. 29. 1 Chit. on Pleading, 628.