of land, with the appurtenances, during all the time aforesaid, Vot repairof right ought(b) to have repaired and amended, and still of ing fences. right ought to repair and amend a certain hedge or fence, between the said close of the said A B, and the said close of the said CD, as often as occasion hath required, to prevent cattle lawfully feeding and depasturing, or being in those respective closes from erring or escaping from and out of the one into the other of the said closes, through the defects and insufficiencies of the said hedge or fence, and doing damage in those respective closes. Yet the said CD, well knowing the premises, but contriving and wrongfully and unjustly intending to injure and aggrieve the said A B in that behalf, whilst the said A B and C D were so respectively possessed of their said respective closes, pieces or parcels of land, with the appurtenances as aforesaid, to wit, on, &c. aforesaid, and on divers other days and times between that day and the day of exhibiting this bill, to wit, at, &c. aforesaid, wrongfully and unjustly suffered and permitted the said hedge or fence between the said close, piece, or parcel of land of the said A B, and the said close, piece, or parcel of land of the said C D, to be and continue, and the same then was ruinous, prostrate, fallen down, out of repair, and in great decay, for want of *needful and necessary repairing and amending of the same, whereby divers cattle, to wit, horses, &c. &c. of the said A B, lawfully feeding and depasturing in the said close, piece or parcel of land of the said A B on the several days and times aforesaid, went, erred, and escaped from and out of the same, through the said defects and insufficiencies of the said hedge or fence, into the said close of the said CD, and were then and there driven about and hunted in the said close of him the said CD. And thereby one of the said cattle, to wit, a certain * 350 (b) This is now determined to be a sufficient allegation of the defendant's liability to repair, 1 Salk. 335. 1 Vent. 264. 2 Ld. Raym. 804. 3 T. R. 766. It is not necessary to introdace the word "tenants," unless the defendant be owner as well as occu pier of the soil, as it is only in the latter capacity that a mere lessee can Not repair ing fences. For not carry. * 351 cow of him the said A B, then and there prematurely calved, and became, and was greatly injured and damaged. And he the said A B was forced and obliged to lay out and expend a large sum of money, to wit, the sum of 57. in and about the endeavouring to cure his said cow, and also by reason of the said defects and insufficiencies of the said hedge or fence, on the several days and times aforesaid, divers other cattle, as well of the said CD as of divers other persons, feeding and depasturing in the said close of the said C D, on the several days and times aforesaid, through the said defects and insufficiencies of the said hedge or fence, erred and escaped out of the said close of the said CD, into the said close of the said A B, and eat up, trod down, trampled upon, consumed, and spoiled, other the grass and herbage of the said close then and there grow ing and being of great value, to wit, of the value of 201. [Conclude as ante, 238.] [Commencement as ante, 238. The venue is local.] For ing away great that whereas the said C D, heretofore, to wit, on, &c. was and tithes.(d) from thence hitherto hath been, and still is, rector of the rectory of the parish church of in the county of and as such rector of the said rectory, he the said CD hath been for and during all the time aforesaid, and still is, entitled to have, take, and receive, all and singular the tithes of wheat yearly growing, arising, renewing, and happening upon and from a certain close, or piece or parcel of land, called situate, lying, and being in the parish aforesaid, and within the bounds, limits, and titheable places of the said parish and rectory. And whereas the tenants and occupiers of the said close or piece or parcel of land for the time being, from time 1 (4) See the precedents, 8 Wentw. Index, 72. 1 Ld. Raym. 187. If the proprietor of the tithe leave it on the and more than a reasonable time after it is set out, and after he has notice thereof, the owner of the land cannot justify in trespass turning in his eattle upon the land to depasture it in the usual course of husbandry, whereby the cattle consumed the tithes; but his remedy is either by distress, damage-feasant, or by action on the case, 8 T. R. 72. And trespass vi et armis cannot be supported for such non-feasance, Ld. Raym. 187, Burr. 1891. 1 Roll. 109. whereof the memory of man is not to the contrary,(e) have been Not carrying used and accustomed, and ought yearly and every year, when away tithes. the said close or piece or parcel of land hath been sown with corn, to divide, separate, and set out, the tenth part or tithe, of all corn growing and arising, renewing and happening in every such year, upon and from the said close or piece or parcel of land, and every part thereof, after the reaping and cutting down of the said corn from the nine parts residue thereof upon the said close or piece or parcel of land where the same hath so grown, and there to leave such tenth part or tithe, for the use of the rector of the said rectory, or his farmer of the tithes thereof for the time being, which said tenth part or tithe so as aforesaid, divided, separated, set out, and left the rector of the said rectory, or his farmer of the tithes thereof for the time being, at his own proper costs and charges, in a convenient time next after the dividing, separating and setting out, and leaving thereof, and after notice(f) thereof given to the said rector or farmer for the time being, hath been, during all the time aforesaid, used and accustomed, and ought to carry away from the said close or piece or parcel of land whereon the said tenth part or tithe hath so grown and been so divided, separated and set out, and left as aforesaid.(g) And whereas the said A B, before and on the said day of in the year aforesaid, was and from thence hitherto hath been and still is, the tenant(h) and occupier of the said close or piece or parcel of land, and which said close or piece or parcel of land, was in that year sown with wheat, and the said A B, so being tenant and occupier of the said close or piece or parcel of land, and the said CD, so being rector of the said rectory, and so entitled to the said tithes as aforesaid, he the said A B, after - '" * 352 (e) This allegation is not necessary, and in some cases might be improper, 5 T. R. 264. (f) It is necessary to state notice of having set out the tithe, 1 Roll, Abr. 648. 2 Vent. 48. 3 Barr. 1892. 1 Stra. 245. But not of being about VOL. II. to set out the tithe, 3 Burr. 1891. 2 (g) As to this inducement and (h). As to the statement of the plaintiff's possession, &c. of the close, see 3 Bulst. 337. [40] away day of Not carrying wards, to wit, on the said — in the year aforetithes. said, at. &c. aforesaid, reaped and cut down certain wheat then growing upon the said close or piece or parcel of land, and then and there in due manner divided, separated, and set out thereon, the tenth part or tithe of the said wheat, from the nine parts residue thereof, and there left the same for the use of the said CD, so being rector of the said rectory as aforesaid, and afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, he the said A B gave notice(i) thereof to the said C D. Yet the said CD, so being rector of the said rectory, and so entitled to the said tithes as aforesaid, well knowing the premises, but contriving, and wrongfully and maliciously intending to injure, prejudice, and aggrieve the said in this be * 353 half, and to deprive him of a great part of the profit, benefit, and advantage of the said close or piece or parcel of land, did not, nor would, in a convenient() time after the dividing, *separating, setting out and leaving the said tenth part or tithe, of the said wheat from the nine parts residue thereof, and after the said notice thereof so given as aforesaid, take or carry away from the said close or piece, or parcel of land, the tenth part or tithe of the said wheat, or any part thereof, but on the contrary thereof, the said CD wrongfully suffered and permitted the said tenth part or tithe of the said wheat to continue and remain upon the said close or piece or parcel of land, where the same had so grown and been divided and separated, set out and left as aforesaid, for a long space of time, to wit, for the space of six() weeks next after the dividing, separating, setting out and leaving the said tenth part or tithe, of the said wheat from the nine parts residue thereof, and after the notice thereof so given as aforesaid, and after the said nine parts residue thereof had been carried away from the said close Damage. (m) or piece or parcel of land of the said A B. Whereby the said close or piece or parcel of land was for, and during all that time, (i) Vide ante, 351. note 5. (k) This is necessary, as a reasonable time must be allowed to carry the tithe away after notice, and before action brought, 5 Bulst. 336. Ld. Raym. 189. Stra. 245. (1) It is necessary to state how long the corn remained upon the ground, Latch. 8. (m) It is necessary to state some damage, Latch. 8. greatly incumbered with the said tenth part or tithe of the said Not carrying wheat, and the said AB was thereby for and during all the time away tithes." aforesaid, hindered and prevented from feeding and depasturing certain cattle upon the said close or piece or parcel of land, from ploughing or sowing the same with, as he otherwise would have done, and also thereby a certain crop of ——, which was afterwards sown upon the said close or piece or parcel of land, for want of being sown in due and proper time, became and was stinted in its growth, unproductive and of lit tle or no use or value to the said A B, and by means of the said several premises, he the said A B lost, and was deprived of a great part of the profits, benefits and advantages which might and otherwise would have arisen and accrued to him, from the *said close or piece or parcel of land, to wit, at, &c. aforesaid. Conclude as ante, 238.] * 354 IV. FOR TORTS TO REAL PROPERTY INCORPOREAL. [Commencement as ante, 238.] For that whereas the said A B, before and at the time of the committing of the grievances hereinafter mentioned, was, and from thence hitherto hath been, and still is, lawfully possessed(o) of a certain messuage, and divers, to wit, -acres of land, with the appurtenances, situate and being in the parish of - -, in the county of -- ; and by reason thereof,() during all the time aforesaid, of right ought For disturb it's common ance of plain. of pasture, by turning sheep on the common.(n) (n) For the precedents, see 8 Wentw. Index, 50 to 54. 2 East, 154. 3 Wils. 279. Trespass or replevin are in many instances preferable to an action on the case, in order to compel the defendant in his plea, to state his supposed right of common, or other justification. (0) It is not necessary to state in a declaration any title to the common, either by prescription or other wise, and it is sufficient to allege that the plaintiff was possessed of certain land, &c. (as the case may be,) and by reason thereof had a right of com mon in such a place for his commona- |