day of the date of the said agreement, should cease and terminate for ever; and they further agreed to bind themselves in the sum of 1007., whoever should commence an action or suit, in respect to any thing in being to the then present day." It was then averred, that the present action, and the action in the agreement mentioned, were the same. On demurrer to this plea, it was contended, in support of the plea, on the authority of an admission in Reniger v. Fogassah, that the agreement, which is an effectual plea in bar, is either such an agreement, as is executed and satisfied with a recompense in fact, or with an action or other remedy to execute it, and to recover a recompense; that here the parties agreed to bind themselves in the penalty of 100l. to abide by 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 shew 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 100l., 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."

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.

To a plea of liberum tenementum, where the plaintiff replied, that the place in question was the soil and freehold of the plaintiff, and not the soil and freehold of the defendant, it was holden, on special demurrer, that the replication was good; for the words, "that it is the freehold of the plaintiff," were either to be rejected as surplusage, or to be considered only as inducement; that if the plaintiff had said, that it was his freehold, absque hoc that it was the freehold of the defendant, it would have been plainly an inducement only: and yet that was exactly the same case as the present, for there is not any dis

h Plowd. 5, 11. b.

i Lambert v. Stroother, Willes, 218.

tinction between traverses and denials. Where the defendant pleads liberum tenementum in I. S. and that the defendant entered by his command, the plaintiff, in his replication may traverse the command. This point was solemnly adjudged in Chambers v. Donaldson, 11 East, 65. (notwithstanding the case of Witham v. Barker, Yelv. 147., and the dicta in Trevilian v. Pyne, Salk. 107, and ante, tit. Replevin, n. 21. p. 1215,) the court observing that it had become a settled rule, that possession was sufficient to maintain trespass against a wrong-doer, but that this rule would be of no avail if the command were not traversable; for in that case the wrong-doer might shelter himself under a plea of an outstanding freehold in a stranger, from whom he derived no authority to commit the trespass: and Bayley, J. added, that it was not competent to a wrong-doer to call on a person in actual possession to set out his title. The plaintiff had lands abutting on one side of a public highway, called Shepherd's Lane (which was prima facie evidence that half of the lane was his soil and freehold); it was holden, that he might declare generally for a trespass in his close, called Shepherd's Lane, and that it was incumbent on the defendant to plead soil and freehold in another, in order to drive the plaintiff to new assign the trespass complained of in the part of the lane which was his exclusive property. Where the plaintiff, in his declaration, avers a single act of trespass, e. g. that on such a day the defendant stopped the plaintiff's cattle and cart, and the defendant justifies the act, there cannot be a new assignmentTM.

4. Estoppel.

If, in an action of trespass, a verdict be found on any fact or title distinctly put in issue, such verdict may be pleaded by way of estoppel in another action between the same parties, or their privies, in respect of the same fact or title. To an action of trespass for digging and getting coals out of a coal-mine, alleged by the plaintiff to be within and under his close, called the Cow Close; the defendants pleaded, and shewed title regularly brought down to them in right of the wife, by fine, recovery, &c. from one Sir John Zouch, who in the 39th year of Elizabeth, was seized in fee of the manor of Alfreton, and of certain messuages and lands within the manor, by virtue of which title they claimed all the coals under those

1 Stevens v. Whistler, 11 East, 51. m Taylor v. Smith, 7 Taunt. 156.

n Outram v. Morewood, 3 East, 346.

lands, except such as were within and under any of the messuages, buildings, orchards, and grounds, which at the time of a recovery suffered in the reign of Queen Elizabeth, were standing and being upon the said lands and tenements, and which coal mines, with the exception aforesaid, passed under a bargain and sale from Sir John Zouch to certain bargainees; and the defendants averred, that the coals in question were under the lands of that former owner, Sir J. Zouch, and were derived by bargain and sale to certain immediate bargainees, and from them to the defendant, the wife, and were not within or under any of the messuages, buildings, orchards, and gardens, which were the subject of the exception. To this plea the plaintiff replied, and relied, by way of estoppel, upon a former verdict obtained by him in an action of trespass, brought by him against one of the defendants, Ellen, the wife of the other defendant, she being then sole, in which he declared for the same trespass as now; to which the wife pleaded, and derived title in the same manner as now done by her and her husband, and alleged, that the coal mines in question, in the declaration mentioned, were, at the time of making the before-mentioned bargain and sale, by Sir John Zouch, parcel of the coal mines by that indenture bargained and sold: upon which point, viz. whether the coal mines claimed by the plaintiff, and mentioned in his declaration, were parcel of what passed under Zouch's bargain and sale to the persons under whom the wife claimed, an issue was taken, and found for the plaintiff, and against the wife. The question was, whether the defendants, the husband and wife, were estopped by this verdict, and judgment thereupon, from averring in the present action, (contrary to the title so there found against the wife,) that the coal mines now in question were parcel of the coal mines bargained and sold by the before-mentioned indenture. It was holden, that the husband and wife were so estopped, and consequently, that the plaintiff ought to recover. But since the case of Vooght v. Winch, 2 B. and A. 662, recognized in Doe v. Huddart, 2 Cr. M. and R. 323. the judgment will not be conclusive, unless it is pleaded as an estoppel.

5. License.

To an action of trespass, the defendant may plead, that he committed the supposed trespass by leave of the plaintiff. Where a person is licensed to do an act, it is necessarily implied, that he may do every thing without which that act

cannot be done. Hence, where to trespass against A., B., and C., for breaking and entering plaintiff's house, and continuing there ten days, and selling divers goods; the defendants pleaded, that before the time, when, &c. the plaintiff licensed A. to enter the house, and to continue therein for the sale of his goods; by virtue of which license, A. in his own right, and B. and C., as his servants, peaceably entered the house by the door, then open, to sell the said goods, and in and about the sale of goods, necessarily continued in the house for ten days, &c., concluding with a verification. On demurrer, it was objected, that the license was personal to A., and, consequently, it could not justify the entry of any other person, and at least it ought to have appeared on the face of the plea, that the entry of the other defendants was necessary for the purposes mentioned in the license. But the court overruled the objection, Willes, C. J. observing, that unless a man could sell goods to himself, it was absurd to contend that this was a license to A. only to go into the house; besides, it was highly probable, that he might want to take several persons with him, in order to assist in the sale; and this is sufficiently set forth in the plea; for it is alleged, that all three necessarily continued in the house for ten days, to sell the goods; and if their continuance therein were necessary, their entrance must certainly be so too, and was therefore sufficiently alleged (9). Where the plaintiff complains of several trespasses committed on several days, and the defendant pleads a license to which the plaintiff replies de injuria sua propria absque tali causá: it is incumbent on the defendant to shew a license for each act of trespass proved by the plaintiff. In such case it is not necessary for the plaintiff to new assign; for the meaning of the replication is, that the defendant committed the several trespasses without a license for each. Where a defendant justified the stopping the plaintiff's cart, on the ground that he was loading his cart

o Dennett v. Grover and others, Willes, p Barnes v. Hunt, 11 East, 451,

195.

(9) In Hil. 13 Hen. 7. 13. b. the distinction is taken between those licenses that are given for pleasure, and those for profit; that the former are merely personal, but that in the latter case, the person to whom the license is given may take others with him; " Et issint si home me license a avoir un arbre in son bois, mes servants justifieront le sier del arbre et l'entrer." The former branch of this distinction is also supported by a passage in Finch's Law, 16 and 17, and the latter by a case in M. 13 Hen. 7. 10. Durnford's note, Willes, 197.

with turf wrongfully cut from the waste of the manor, and that defendant, as bailiff of the lord, stopped the cart. Plaintiff having replied de injuriâ suâ propriâ; it was holden, that in order to rebut the justification, he could not give in evidence a license from the lord to cut the turf, that not having been pleaded by way of replication. License to enter and occupy land for a certain time amounts to a lease, and ought to be pleaded as such'.

The defendant may also justify an entry into the house or land of another under a license in law. Such is the entry into an inn or tavern at seasonable times, an entry to demand rent due for the enjoyment of the land, or to distrain for the rent in arrear, or to distrain cattle damage feasant. Such also is an entry for the purpose of executing (in a legal manner) the process of the law; the entry of a remainder-man or reversioner to view the state of repair, and see whether any waste has been committed on the estate; the entry of a landlords, in the absence of a tenant, who had omitted to deliver up possession when his term had expired; the entry of a commoner to view his cattle, and the like. Having stated several instances in which the law permits a person to enter the house or land of another, we proceed to inquire in what cases a party shall be deemed a trespasser ab initio; as to which the following distinctions must be observed:

1. Where an entry, authority, or license, is given to any person by law, and he abuses it by the commission of some act, there he shall be considered as a trespasser ab initio ; i. e. from the first entry; for the law determines from the subsequent act, quo animo, or to what intent the original entry was made; as, if a person enters an inn or tavern, and afterwards commits a trespass, by carrying away any thing, the law adjudges that he entered for that purpose; and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio; but, in such case, if the party is guilty of a mere non-feasance, as in the case of an entry into an inn, and refusing to pay for the liquor which he has consumed', there he cannot be considered as a trespasser ab initio, because a mere non-feasance does not amount to a trespass. So where one who has distrained a beast damage feasant, or taken an estray, kills or works it", he shall be deemed a trespasser ab initio ; but a refusal to deliver the beast, on tender of amends, being a mere non-feasance, will not be considered as a trespass with

q Taylor v. Smith, 7 Taunt. 156.

r Adm. per cur. 5 H. 7. 1. a. cited in Plowd. 542. a.

s Turner v. Meymott, 1 Bingh. 158.

t Six Carpenters' case, 8 Rep. 146. a.

u Oxley v. Watts, 1 T. R. 12.