Opinion
(1793.)
Noy for the plaintiff. It has been objected that the traverse de injurie is not good, where the justification is by reason of a free tenement or lease for years. But yet the plaintiff ought to have judgment:
1. Because the justification here is not in the realty alone, but mixed with the personalty: And where it is mixed with the personalty, de injuria sua propria is a good traverse; and it is necessary to traverse the title, as the defendant pretends. 8 H., 6, 34. Also, the justification is not on the lease, but on the assault, by putting his hands molliter on him to put him out. So the realty is only an inducement to the justication.
2. Their title is not certain, nor traversable by reason of their lease pro termino diversorum annorum; and this uncertainty we cannot traverse, as they have shown no certain term.
3. By this demurrer our plea is confessed; that it was de injuria sua propria, and then, although the issue be not well tendered, yet the demurrer having confessed the tort, judgment ought to be according to the justice of the case, by 27 El., 5, p. 332.
The defendant not being ready, a day was given him.
Book of Entries, titles Assault, Placito, 17, p. 554. Afterwards judgment was given for the plaintiff. Antea, pp. 645, 720, 792.