case freeston against crouch Hilary term Elizabeth roll if to the common bar  in trespass the replication make a new assignment and descrihes the place  where otherwise than in the bar the rejoinder can aver it to he the same place  post Poph yely Brownl cro James Lutw more dyer Mod Carth salk onslow n p I  term Rep error of a judgement in the common plea for that trespass be there  bring and the defendant plead at large that the place where be two acre c and  abuttals it and justify as in his freehold the plaintiff by his replication  make a new assignment that the place where be two acre and abuttals they  otherwise than in the bar the defendant rejoin that the two acre mention in  the bar and in the replication be all one c and thereupon the plaintiff  demurrer and adjudge there that the rejoinder be ill and adjudge for the  plaintiff and thereupon error bring and assign in the very point and matter of  law because it may he true that what the plaintiff show in his replication and  abuttals and what the defendant have plead in bar may he all one for the one  may abut it upon the one side and the other croak Elizabeth upon the other  part and both he true and then there be not any reason but he may plead it and  so be Henry pl Henry pl and so it be adjudge Henry roll tylney v Spelman  sergeant wherefore c Popham Clench and Fenner justice hold the contrary for  when the plaintiff reply and make a new assignment and say that it be alias  how in bar then he waive that whereto the defendant have plead so as if in  truth it he the same thing he can never take advantage thereof but be estopped  to give evidence in that which the defendant have plead and therefore to that  place new assign the defendant shall have plead in bar thereto or ought to  have plead not guilty and so be Henry pl and Henry pl Wawdy contra and he hold  the law to he with Henry pl for it be not reason if they he all one place but  that he ought to plead it and not to stand upon a estoppel and put it upon  evidence to a jury but notwithstanding a term Rep croak Elizabeth er p  forasmuch as the other justice be of the contrary opinion he assent with they  that the judgement shall he affirm