In waste. Without impeachment of waste. Release. Accord and satisfaction. it (a): or he may plead, that it was so ruinous at the commencement of his lease, quod reparari non potuit (b); and so he may say, that the trees cut down, were aridæ, mortuæ, nec fructum nec folia portantes; but it is not sufficient to say, that they were aridæ, in columnis putridæ, cavæ, anglice pollards, non habentes sufficiens mahremium pro aliquibus ædificiis. (c) The tenant may plead, that his lease is without impeachment of waste (d); or that the plaintiff's ancestor made a bargain and sale of the trees to him (e); or, that the lessor covenanted in the deed of demise, that the defendant might cut down trees. (f) The defendant may plead a release from the plaintiff; where the action is in the tenuit, and brought by two, a release by one is a bar to both; but otherwise, where it is brought in the tenet, for there it only bars the plaintiff, who releases. (g) Accord and satisfaction, is a good plea in an action of waste in the tenuit, where damages only are to be recovered; or in an action of waste against tenant for years in the tenet, for there a chattel only is recovered. (h) In quod permit tat. It has already been said, that when a quod permittat is brought in the debet, or in the nature of a writ of right, the mise may be joined on the mere right (i); but where it is brought in the nature of a writ of entry, the defendant must plead specially, according to the nature of his case. Thus in a quod permittat, in the nature of entry sur disseisin of a common, the defendant may plead, that the land is in severalty, and traverse the disseisin (); and so if it be brought in the nature of a writ of entry for disturbance of a right of common or way, the defendant may traverse the prescription, &c. (1) (c) Com. Dig. Pleader, (3 O. 18). Alden v. Blague, Cro. Jac. 100. SacheMauwood's case, Moor, 101. (d) 2 Rol. Ab. 835, l. 10, 15. Ante, p. 120. (e) Win. Ent. 1043, (1157). (f) Cage v. Paxlin, 1 Leon. 117. verell v. Bagnol, Cro. Eliz. 356. Ent. 707, b. (i) Ante, p. 41. Co. (k) Rast. Ent. 539, a. Booth, 239. (1) Rast. Ent. 538, b. A quod ei deforceat, being an action brought by tenant for life, &c., to recover lands which he has lost by default in a real action (a), the defendant may plead such former recovery in bar, maintaining his title at the close of his plea; as if the recovery was by formedon, he must say, "and he is ready to maintain his right and title aforesaid, by the gift aforesaid, &c., wherefore he prays judgment, &c." and the demandant may either traverse the title or plead in bar of it. (b) If the former recovery is pleaded, the defendant in the quod ei deforceat becomes an actor, and the demandant may then vouch. (c) The defendant, however, is not obliged to plead the former recovery, and may plead any other matter sufficient to bar the demandant. (d) In quod ei de forceat. In a nuper obiit, the demandant may plead in bar a feoffment In nuper obiit. from the common ancestor, and traverse that he died seised. (e) The usual plea in bar in partition is non tenent insimul et pro indiviso (f); and to a declaration stating a demise to the defendants, non dimisit is not a good plea, for it amounts to non tenent insimul. (g) Nor can the defendant plead another writ of partition depending, brought by him against the plaintiff. (h) In partition. The defendant may plead the general issue, not guilty, al- In deceit for imthough matter of record is mixed with matter of fact. (i) If issue be joined, whether the manor is ancient demesne or not, it shall be tried by doomsday book. (k) The book of doomsday ought to prove the very manor to be ancient demesne, as it is alleged; for if issue be upon the manor of B., in the county of N., if doomsday has it the manor of B., in the county of L., it is not sufficient. (1) If it be not under the title de terrâ regis there, pleading lands in ancient de mesne in the king's court. it is not ancient demesne. (a) If the question be, whether the land be parcel of a manor in ancient demesne, the trial shall be by jury. (b) And in an assise, ancient demesne is tried by the recognitors of assise. (c) In warrantia charte. There are some pleas in this action, which, admitting the obligation of the defendant to warrant the lands to the plaintiff, go only in excuse of damages and execution; such is the plea, that the plaintiff has not yet been impleaded, in which case, the plaintiff is entitled immediately to judgment to recover his warranty; but not to damages. (d) So also if the defendant pleads riens per descent, it is a confession of the warranty, and the plaintiff may have judgment, pro loco et tempore, immediately. (e) Any plea which shews that the plaintiff is not entitled to take advantage of the warranty, is a good plea in bar in this action, as that he was not tenant of the land on the day of the writ purchased (f); but it is sufficient if he be tenant by admittance, as a vouchee. (g) So the defendant may plead, that nothing passed by the deed upon which the plaintiff has declared; for if nothing passed by the deed, the warranty does not bind (h); and this plea of non dedit non concessit, &c., is the general issue in the action. (2) Upon the same principle, the defendant may plead, that the plaintiff is in of another estate than that to which the warranty is annexed; in which case the privity upon which this action is founded, is wanting. Thus if a person who has an elder title enters upon him who has the warranty, and the latter then enters upon the former and disseises him, and brings a warrantia chartæ, these facts may be pleaded to bar the plaintiff in that action. (k) (a) Hunt v. Burn, 1 Salk. 57. (c) 2 Inst. 397. See form of decla- (d) F. N. B. 134 K. Roll v. Osborn, Hob. 23. 1 Rol. Ab. 474, 1. 50; but see Br. Ab. Dam. 183; and see post in "Damages." (e) Thompson v. Jackson, Noy, 149. (ƒ) 2 Roll. Ab. 810, l. 7. Hob. 21. (g) Roll v. Osborn, Hob. 21. 2 Rol. Ab. 810, l. 15. (h) Roll v. Osborn, Hob. 21. Moor, 860. (i) Booth, 242. Co. Ent. 692, b. (k) Rast. Ent. 398, b. Booth, 242. Roll v. Osborn, Hob. 26; and see in "Voucher," post. Of View. In many real actions the tenant may demand a view of the land in question, or, if a rent is to be recovered, a view of the land out of which it issues. In other actions, as in assise of novel disseisin and waste, the view is had by the jury. The reason of this proceeding is, that the tenant or jury may know with certainty what the demandant seeks to recover, and that the defence may be shaped accordingly. This being the ground upon which a view is granted, it is de- When denied. nied by the law in all cases in which the tenant has, without such a dilatory proceeding, a sufficient knowledge of the lands or tenements demanded from him. Therefore it is a good counterplea of view at common law to say that the tenant is in possession of the lands demanded, and of no other lands in the same vill. (a) It is likewise denied in certain actions which arise In actions out of the wrongful act of the tenant himself, who may reason- brought on teably be presumed to be cognizant of the nature and extent of nant's own the injury which he has himself committed. Thus it is denied wrong. in a writ of intrusion and of entry in the quibus, because the tenant is supposed by those writs to be in of his own wrong (b); but, if a feme sole disseises another, and takes baron, and the disseisee brings a writ of entry in the quibus against the baron and feme, in this case the baron shall have a view, because he was a stranger to the tort. (c) But this rule does not extend to writs supposing a tort, where the tenant demands the view of another thing than that in demand, as in the case of a writ of entry sur disseisin of a rent, in which a view may be had of the land out of which the rent issues; though in this case, if it appear to the court that the tenant is tenant of the land out of which the rent issues, a view shall not be granted. (d) In actions in which there is a privity of blood between the de- In actions where mandant and the tenant, and the tenements in dispute have been there is privity of (a) Davis v. Lees, Willes, 347. (b) 2 Rol. Ab. 725, 1. 22, 23. Br. Ab. View, 10, but in cui in vitâ in the per view lies, Br. Ab. View, 104. (c) Keilw. 126, h. (d) 2 Rol. Ab. 726, l. 43, 45, 727, 1. 21. Br. Ab. View, 10, 52. Booth, 39. blood. When denied. the property of their common ancestor, each party is presumed In writ of right of dower. In dower unde to be equally cognisant of the tenements demanded; a view is therefore denied to the tenant in a nuper obiit (a), and in a writ of right de rationabili parte. (b) It appears, that at common law, in a writ of right of dower, if the husband die seised of the land out of which the dower is demanded, the heir or any claiming under him cannot have a view, because he is presumed to be cognisant of the lands which the ancestor had at the time of his death, though, where the husband had aliened, at common law, view was grantable. (c) In the latter case view is taken away by stat. Westm. 2, c. 48. The cases are contradictory with regard to the granting or denihil habet. nying a view in dower unde nihil habet (d), but the weight of authorities appears to be in favour of the denial. Many of the cases, probably, in which view has been granted in dower are cases of writs of right of dower, and not of dower unde nihil habet. (e) In the former case there is not the same objection to this dilatory proceeding, as in the latter, where the widow is wholly without a provision. At the present day the courts would probably be inclined to discountenance a demand of view in a writ of dower unde nihil habet. (f) In other actions. A view is denied in a quod ei deforceat, for the tenant must know by the former record what he then recovered, and what is now in demand (g); so in a writ of right of advowson, where there is only one church in the vill, and so where there are two, provided, they be of different names. (h) In a cessavit on the cesser of the tenant, where the lord has had seisin by the hands of the tenant himself, no view lies, for, if the tenant has, with his own hands, rendered the services, he must know the object of the cessavit (i), but in a cessavit against the alienee of a tenant (a) Br. Ab. View, 22, 102. F. N. B. 197 Q. 2 Reeves' Hist. 315 (note). (b) F. N. B. 9 N, but in 15 H. 5, view was granted in a rationabili parte, because the ancestor did not die seised. Ibid. (c) Bracton, 377, a. 2 Inst. 481, and see post. (d) That view does not lie, see Br. Rol. Ab. 725, 1. 20. Com. Dig. View, |