LEAVE AND LICENCE. 319 



Plea of leave and licence in trespass. — In trespass, a plea of leave and 

 licence means leave and licence in fact, and a licence in law must be 

 specially pleaded, and semble it may be pleaded to part of a count if 

 severable and distinct : per Cockdurn C.J. {Moxon v. Savage.) 



Leave and licence. — To a declaration in trespass, and for breaking 

 open a gate and lock, the defendant pleaded as an equitable defence, 

 that disputes having arisen between the plaintiff and the defendant 

 and other persons about a right of way, an agreement in writing was 

 entered into between the plaintiff and the defendant and the said other 

 persons, that without prejudice on either side to the question of right, 

 a way over the locus in quo should remain open for the passage of the 

 defendant and the said other persons, until the plaintiff's solicitor and 

 the defendant should come to a definite understanding as to the course 

 to be pursued in deciding the question in dispute ; that all things 

 happened necessary, &c., and that the alleged trespasses were com- 

 mitted in the use by the defendant of the said way, because the said 

 gate had been wrongfully and contrary to the said agreement placed 

 across it. It was held by the Court of Exchequer — 1st, that the plea 

 did not amount to a plea of leave and licence at common law, as the 

 locking of the gate was a revocation of the licence to use the way ; and 

 2ndly, that it was not good as an equitable plea, the circumstances 

 disclosed not being such as would in equity entitle the defendant . 

 to have the plaintiff restrained by an unconditional injunction from 

 prosecuting the action {Hyde v. Graham). 



Reasonableness of a horse-^-acing custom. — To an action of trespass 

 qi(are clausi/m f regit, the defendant pleaded that from time immemorial, 

 on Ascension Day, horse races had been held, and of right ought to be 

 held on land in a certain extra-parochial place, and that there was a 

 custom for the freemen of the town of C to enter on the close for the 

 purpose of horse-racing ; and it was held on a demurrer to the plea and 

 the authority of Fitch v. RaivUngs and others (2 H. Bl. C. B. 393) and 

 Abbott V. Weeldy (1 Levinz, 176) that the custom was good and reason- 

 able. The Court of Exchequer distinguished this case ft'om Milli- 

 clmmp V. Johnson and Bell v. Wardell (Willis, 202), because the right to 

 go on the land in question was limited to a few days about the time of 

 Ascension Day or Holy Thursday, whereas in these cases the custom to 

 enter on land for the purpose of playing any rural sports or games was 

 held bad, as being too general and uncertain {Mounsey v. Ismay). 



A trespasser may have a right of action for an injury sustained whilst 

 in the act of trespassing {Burnes Adx. v. Ward). And per 3faule J. : 

 " With respect to the case of Blyfh v. Topham, and Alderson B.'s 

 dictum in Jordin v. Crump, it must be observed that in those instances 



