barker versus Dixon b r a custom for one commoner to enclose against another  be good special action upon the case that whereas the plaintiff be seize of  the rectory impropriate of a and have a right of common in a certain field  contain acre and that the defendant enclose part of that field whereby the  plaintiff can not enjoy his common in so ample and beneficial a manner as he  before have enjoy the same to the plaintiff damage Wilson king bench the  defendant plead two plead first the general issue not guilty second a special  justification in bar that he be possess of certain land in the say common  field and that it have be a custom time out of mind for all those who have any  land in the say field to enclose as much thereof ad it pleases as they please  and that the defendant by virtue of his possession and of the custom enclose  the plaintiff reply and traverse the custom to enclose and thereupon issue be  join this cause be try at Hertford summer assize before baron Reynolds who  report that the defendant upon the not guilty put the plaintiff upon prove his  declaration which he do very satisfactory and then the defendant prove his  plea in bar as full and thereupon the jury find a verdict for the defendant  general and now it be move for a new trial be it because the plaintiff ought  to have have a verdict upon the issue of not guilty and dly that this be a  have custom but it be resolve per totan curian if there be several plead plead  each of which go to the whole declaration and any one of they be prove which  absolute destroy the plaintiff action a general verdict for the defendant as  in the present case be very right and dly per totan curian this be a very good  custom and be in the nature of shack and the freeholder under such a custom as  this may well enclose one against another and this be exact like sir mile  corbet case Rep it be also say by lee c j and Dennison I and not deny by the  other two judge that in a action upon the case as this be this custom may have  be give in evidence upon the general issue for it prove the defendant not  guilty of the gravamen lie in the plaintiff declaration and a defendant in a  action on the case may give in evidence any matter that destroy the plaintiff  action but that in a action of trespass way arms the special matter must be  plead and there the Wilson king bench er p defendant must confess and avoid  but in a action upon the case it be otherwise cite pro def I ld raym ken  wright Mod cro car pro quer mu Rep aldred case I roll Abr roll Abr p new trial  refuse and judgement pro def