ment, with the appurtenances, and became, and was, and from thence hitherto hath been, and still is, feifed thereof in his demefne" as of fee, at the will of the lord, according to the custom of the said manor; and the faid E. B. being fo feifed of the faid customary tenements, with the appurtenances, as aforefaid, he the faid E. B. afterwards, and before the faid time when, &c. to wit, on the twenty-eighth of June 1730, at the Parifh aforefaid, by a certain indenture then there made between the faid E. B. and the faid Thomas Cone, part of which faid indenture, fealed with the seal of the faid E. B. the faid defendants now bring here into court, the date whereof is the fame day and year aforefaid, he the faid E. B. by and with the confent of Francis Afchough, efquire, then being lord of the faid manor, demifed the faid cuftomary tenements, with the appurtenances, to the faid Thomas, to hold the fame to the faid Thomas from Michaelmas then laft paft, for the space of twenty-one years thence next enfuing, by virtue of which faid demife the faid Thomas afterwards, and before the faid time when, &c. to wit, on the twenty-third of June 1780, at the parish aforefaid, entered into the aforefaid cuftomary tenement, with the appurtenances, and became, and was, and at the faid time when, &c. continued thereof poffeffed +: And the faid defendants further fay, that there now is, and at the faid time when, &c. there was, and from time immemorial there hath been, a certain ancient and laudable cuftom ufed and approved of within the faid manor, that is to fay, that every tenant and holder of the aforesaid cuftomary tenement, with the appurtenances, paying heath rent, in manner bereafter mentioned, have, had, and have been used, and accustomed to have, and of right ought to have had, and still of right ought to have common of pasture in and upon the faid place in which, &c. in manner following, that is to fay, every tenant and landholder, paying a heath rent of fixpence per annum to the lord of the faid mannor, hata had common of pafture thereon for twenty fheep, or two horfes, or two cows, in lieu thereof, and every fuch tenant, paying a heath rent of threepence per annum to the lord of the faid manor, hath had common of pasture thereon for ten sheep, or one horfe, or one cow, in lieu thereof, as to the faid cuftomary tenement, with the appurtenances, belonging and appertaining: And the faid defendants in fact fay, that the faid Thomas being fo poffeffed of the aforefaid cuftomary tenement, with the appurtenances, and fuch landholders as aforefaid, he the faid Tho. before, and at the faid time when, &c. was a heath renter aforefaid and paid a heath rent of fixpence per annum to the faid Francis Afchough, then and there being lord of the faid manor, for and in refpect of the aforefaid cuftomary tenement, with the appurtenances; and because the faid cattle in the faid declaration mentioned at the said time when, &c. were in the faid place in which. &c. depafturing on the grafs there then growing, and doing damage there to the faid Thomas, fo that he the faid Thomas could not have and enjoy the aforefaid common of pasture there in fo large and ample a manner as he then and there ought to have VOL. VIII. enjoyed

E

the manor for

lating the com

mon, as ftared

in first avowry,

&c.

enjoyed the fame, he the faid Thomas in his own right-well avows, and the faid William and Henry, as his bailiffs, well acknowledge the taking the cattle in the faid place in which, &c. and juftly, &c. as and for a distress for the faid damage fo by them there done, and doing, &c.: And for a further avowry in this behalf, &c. [fame 2d Avowry, a as first avowry to +]: And the faid defendants further fay, that custom within there now is, and at the faid time when, &c. was, and from time the homage of imniemorial there hath been, a certain ancient and laudable cuf the court baron tom used and approved of within the faid manor, that is to fay, to make bye that the homage of the court baron of the faid manor, for the time laws for regu- being, charged and fworn at the faid court baron, from time mon; that ho- whereof the memory of man is, not to the contrary, have made, mage make a and have used, and been accustomed to make, and of right ought bye law, regu- to have made, and ftill of right ought to make bye-laws, or orders, lating the com- for the government and regulation of the commonable places within the faid manor, and for the prefervation of the herbage and becaufe, thereof; and the faid defendants further fay, that at the court baron of Roger Jenyns, efquire, then lord of the faid manor, holden at Heefe, otherwife Hayes aforefaid, within and for the faid manor, on the twenty-fixth of April 1693, before Samuel Corbett, gentleman, then fteward of the fame court, Richard Rice, Thomas Elphie, Matthew Ruffel, Richard Holes, John Turner, Matthew Colbume, John Ply, Thomas Talbot, and Henry Turner, then tenants of the faid manor, and then and there being fworn on the homage in the fame court, did then and there order that every landholder or tenant, who paid fixpence per annum for heath rent, should have liberty to keep and depafture upon all or any of the common heaths and common fields and places thereunto adjoining and belonging, twenty fheep, and no more, and that every fuch landholder and tenant, who paid threepence for heath rent, fhould in like manner keep ten sheep, and no more; and that every fuch landholder or tenant, having or keeping no sheep, fhould have leave to keep and depasture upon the faid lands and premises, two horfes or two cows instead of the faid number of twenty fheep, or one horse or one cow instead of ten fheep, in like manner: And the faid defendants in fact fay, that the faid Thomas being fo poffeffed of the faid laft-mentioned cuftomary tenement, with the appurtenances, he the said Thomas before, and at the faid time when, &c. was a heath renter, and paid a heath rent of fixpence per annum to the faid F. Afchough, efquire, then and there being lord of the faid manor, for and in refpect of his faid laft-mentioned cuftomary tenement, with the appurtenances; and because the faid cattle in the faid declaration mentioned, at the faid time when, &c. were in the faid place in which, &c. depafturing on the grafs there then growing, and doing damage, fo that he the faid Thomas could not have, ufe, or enjoy his faid laft-mentioned common of pafture there in fo large and ample a manner as he then and there ought to have used and enjoyed the fame, he the faid Thomas in his own right well avows, and the faid W. and H. as his bailiffs, acknowledge the taking

of

of the faid cattle in the faid place in which, &c. and juftly, &c. as and for a diftrefs for the faid damages fo there done and doing, &c.

W. MANLEY.

&c.

by

And the faid Matthew fays, that by reafon of any thing alledg- Plea in bar aded in the said several avowries and cognizances above made, or mits locus to be, &c. but fays, either of them, neither the faid Thomas ought to avow, nor the that one W. R. faid W. and H. to acknowledge the taking of the faid theep in the feifed of fortyfaid place in which, &c. to be juft; because he says, that true it fix acres of land is that the faid place in which, &c. now is, and at the faid time in the fame when, &c. was, and from time whereof the memory of man is parish near to locas; prefcripnot to the contrary hath been parcel of the manor of Heese, other- tion for com. wife Hayes, in the parish aforefaid, in the county aforefaid, as the mon of pasture faid defendants have above alledged; but that the faid Matthew over locus for further fays, that one William Burton Raynes, long before the theep; a demise faid time when, &c. was, and yet is, feifed in his demefne as of from W. R. to fee of and in divers, to wit, forty acres of arable land, with the which plaintiff plaintiff, appurtenances, fituate, lying, and being in the parish aforefaid, put in his sheep, in the faid county, near unto the said place in which, &c. and the until defendant faid W. B. R. and all those whofe eftates he so had, and now hath de injuria fua, of and in the said land, with the appurtenances, from time whereof, &c. have had and have used, and been accustomed to have, and of right ought to have had, and still of right ought to have, for himself and themselves, his and their tenants and farmers of the faid land, with the appurtenances, for the time being, common of pasture in the faid place in which, &c. for all his and their commonable sheep levant and couchant in and upon the faid land, with the appurtenances, every year and at all times of the year, at his and their free will and pleasure, as to the said land with the appurtenances, belonging and appertaining; and being so seised thereof, he the faid W. B. R. before the faid time when, &c. to wit, on the twenty-fifth of March 1785, at, &c. demifed the faid land, with the appurtenances, to the faid Matthew, to have and to hold the fame to him the faid Matthew for the term of one whole year from thence next enfuing, and fully to be complete and ended, and fo from year to year, for fo long time as it should please the faid W. B. R. and the faid Matthew; by virtue of which faid demife the faid Matthew afterwards, and before the faid time when, &c. to wit, on, &c. entered into the faid demifed premises, with the appurtenances, and became, and at the faid time when, &c. was, and ftill is, poffeffed thereof; and the faid Matthew being fo poffeffed thereof, long before the said time when, &c. to wit, on the faid first of April 1786, put the said sheep in the faid declaration mentioned, being his own commonable sheep levant and couchant, in and upon the faid land, with the appur tenances, fo demised as aforefaid, into and upon the said place in which, &c. to depafture the grafs there then growing, and to use his faid common of pafture there as it was lawful for him to do, and the said sheep were in the faid place in which, &c. depaftur

E. 2.

ing

verfe of plaintiff's right of

common.

ing upon the grafs there then growing, ufing the faid common of pasture there until the faid defendants of their own wrong, at the faid time when, &c. took the said fheep of him the faid Matthew, and unjustly detained the fame against fureties and pledges until and in manner and form as the faid Matthew hath above complained against them; and this, &c.; wherefore, &c.: [2d Plea in bar fame as firft, except claiming common of pasture for three dry fheep for every two acres, and one lamb for every one acre of the faid land, inftead of for commonable fheep. 3d Plea in bar fame as firft, claiming under Amey Ann Cafy and Mary Cafy in right of twenty-eight acres of land. 4th Plea in bar fame as fecond, claiming under Amey Ann Cafy and Mary Cafy, in right of the faid twenty-eight acres of land. 5th and 6th Pleas fame as first and fecond, claiming under Michael Granger in right of twenty two acres of land.]

W. BALDWIN.

Replication, And the faid defendants, as to the faid plea of the faid Matfupporting a- thew by him firft above pleaded in bar to the faid feveral avowries vowry and tra- and cognizances above made, as before, fay, that the said sheep in the faid declaration mentioned at the faid time when, &c. were wrongfully in the said place in which, &c. eating up and depasturing the grafs there growing, and doing damage, as they have in the faid avowries and cognizances above alledged, without this, &c. [traverse of right to common of pasture]; and this, &c.; wherefore, &c. [Replications traverse the rights to common of pafture in all the pleas.]

Rejoinder.

Rejoinder, iffues on all the traverses.

W. MANLEY.

This caufe was tried at the fittings after Trinity term 1738, before lord Kenyon, chief juftice, and verdict for defendants.

Declaration for ROGERS

taking cattle.

Plea in bar, that

SHROPSHIRE to wit. John Gibbons was fumagainst moned to anfwer Edward Rogers, &c. for taking one GIBBONS. yearling heifer, at the parish of St. Martins, in the county of Salop, in a certain place there called Coe Croch.

Avowry, damage feafant.

And the faid Edward, as to the faid avowry of the said John, fecus in quo lies by him above made, fays, that the faid J. by reafon of any thing

contiguous to a

commen; that tenants of the locus in quo ought to repair the fence between the locus and common ; that lord Duncannon was feifed of a meffuage; prescription for common of pasture over locus for all cattle at all times of the year; demife of the meffuage, &c. to plaintiff; that plaintiff put his cattle on the commen, and becaufe fence out of repair cattle escaped, &c.

therein

therein alledged, ought not to avow the taking of the faid cattle in the faid place in which, &c. to be juft; because he fays, that the faid place in which, &c. now is, and from time whereof the memory of man is not to the contrary, hath lain contiguous and next adjoining to a certain common or wafte, fituate, lying, and being in the faid parish of St. Martins, in the faid county of Salop, called Glynn Morlas, otherwife Glynn Morlas Common, and that the faid J. and all others the tenants and occupiers of the faid clofe, in which, &c. for the time being, from time whereof, &c. hitherto of right ought to have maintained and repaired, and until the neglect hereinafter mentioned, have been ufed and accustomed to maintain and repair, and the faid J. ftill of right ought to maintain and repair the fence between the faid clofe in which, &c. and the faid common or wafte called Glynn Morlas, otherwise Glynn Morlas Common, when and as often as occafion hath required, and should require, to prevent the efcape of cattle out of the faid common or walte, called, &c. into the faid clofe in which, &c.: And the faid E. further fays, that Arthur Hill Trevor, efquire, commonly called lord Vifcount Duncannon of the kingdom of Ireland, Íong before the faid time when, &c. and at the time of making the demife hereinafter mentioned, was, and ftill is feifed of and in a certain meffuage and divers lands and tenements, with the appurtenances, fituate and being in the parish of St. Martins, in the faid county of Salop, called the Rhyan, in his demefne as of fee, and that the faid Lord Viscount Duncannon, and all others whose eftate he fo had and hath of and in the faid meffuage, lands, and tenements, with appurtenances, from time whereof, &c. have had and have used, and been accustomed to have, and of right ought to have, and the faid lord vifcount Duncannon ftill of right ought to have, for himself and themselves, his and their tenants and farmers, occupiers of the faid meffuages, lands, and tenements, with the appurtenances, for the time being, common of pasture in and over the faid common or wafte, called, &c. in the parish, &c. for all his and their commonable cattle levant and couchant, in and upon the faid meffuage, lands, and tenements, with the appurtenances, every year at all times of the year, at his or their free will and pleafure, as belonging and appertaining to the faid meffuages, lands, and tenements, with the appurtenances; and being fo feifed thereof, he the faid Arthur Hill Trevor, lord viscount Duncannon, long before the faid time when, &c. to wit, on the first of May 1783, at the parith, &c. demifed the said meffuages, lands, and tenements, with the appurtenances, to the faid E. to have and to hold the fame unto the faid E. from thenceforth for and during, and unto the full end and term of one year from thence next enfuing, and fully to be complete and ended, and fo from year to year for fo long as the faid lord viscount Duncannon and E. fhould please; by virtue of which faid demise he the faid E. afterwards, and before the faid time when, &c. to wit, on the first of May 1784, entered into the faid demifed premifes, with the appurtenances, and became and at the laid time, when, &c. was and still is, poffeffed thereof; and

E 3

being