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the surface of the ground as soon as conveniently 1806. might be done after the making thereof, and the other Hodow* to be kept open for examining the sough so long as j^""* was necessary for that purpose, and no longer, and also full and free liberty for the said Jeremy Marshall his heirs and assigns, and his and their agents and workmen to get stones in the said parcel of woody ground belonging to the said Robert Stansfield, for making the said intended sough, and for mending and repairing such part of the fence or walls belonging to the said Robert Stansfield in the said woody ground, as should be broken down or injured, by the said Jeremy Marshall; by virtue whereof the said Jeremy Marshall became and was seised of and entitled to the said < liberties and privileges so given and granted as aforesaid, and to have and enjoy the same for the purpose ia that behalf aforesaid to him his heirs and assigns, as to the said parcel of woody ground, and the said other lands of the said Jeremy Marshall belonging and appertaining, and afterwards, to wit, on the same day and year last aforesaid, at Heatou aforesaid, for the purpose in that behalf aforesaid, the said Jeremy Marshall carried up the said sough in manner aforesaid; and made the said two sough pits, in manner aforesaid, and exercised and enjoyed the said liberties and privileges so granted as aforesaid, for the purpose in that behalf as aforesaid,together with the said parcel ofwoody ground of the sa\dJeremyMarshall and as belonging and appertaining thereto, and the said Jeremy Marshall being so seised and entitled as aforesaid, afterwards, to wit,on the 4th day of May, \7bQ, at Heaton aforesaid, in the county aforesaid, by a certain indenture then and there made between the said Jeremy Marshall, by the name of Jeremiah Marshall of the one part, and one Thomas Fenton of the other part, Cone part of which said indenture sealed with the seal of the said Jeremy the said defendant brings here into court ti.e date

180S. whereof is the day and year last aforesaid) the said Hoooson Jeremy Marshall for the consideration of a certain vmus jum Gf money to him, then and there paid by the said Thomas Fenton, bargained and sold to the said Thomas Fenton amongst other things the said parcel of woody ground, and the said other lands of the said Jeremiah Marshall, together with all ways, paths, passages, waters, watercourses, easements, liberties, privileges, rights, commodities, emoluments, hereditaments, and appurtenances, whatsoever to the said parcel of woody ground, and the said other lands of the said Jeremy Marshall, or any part or parcel thereof belonging or in anywise appertaining or therewith, then or theretofore commonly demised, used, occupied, or enjoyed, or accepted, reputed, had, taken, or known as part, parcel or member thereof, or of any part or parts thereof. The plea then set out divers conveyances of the woody land by which the title thereto, and to the ways and appurtenances thereto belonging, was deduced to the present time, when it was vested in the defendant, and stated that the defendant at the said several times when, &,c. was and still is seised of and in the said parcel of woody ground, and the said other lands heretofore of the said Jeremy Marshall, and of the mines, seams, and veins of coal within, and under the same,with the appurtenances, in his demesne as of fee, and entitled to use and enjoy the said sough, together with the same parcel of ground and the said other lands, for the purpose in that behalf aforesaid, for himself, his heirs, and assigns, as to the same parcel of ground and other lands, with the appurtenances belonging and appertaining. And tiie suid defendant further saith, that all the'said scams and veins of coal, at or before the said several times when, &c. were not won from within and under the same parcel of ground and the siir.ie other lands, nor was all the coal then dug, got, or raised therefrom, find the said sough had been and was from the time of making and iP^carrying up the same as aforesaid, used and enjoyed Hoogsom for the purpose in that behalf as aforesaid, together f"^9 with the same parcel of woody ground, and the same other lands, and as belonging and appertaining there* to; and until and at the said several times when, &.c. continued to be, and was except so far as the same had been or was obstructed for want of repairing, opening, and cleansing the same, useful and beneficial to the said defendant, for the purpose in that behalf aforesaid; and because the said sough at the said several times when, &c. was extremely ruinous and decayed and obstructed, for want of the needful and necessary repairing, opening, and cleansing thereof, he the said defendant did at the said several times when, Sec. enter and cause to be entered into the said close, in which,&c and did then and there dig and make and cause to be dug and made the said pit or hole in the said declaration mentioned, and did open and un. cover the said sough or drain in the said declaration mentioned, in the said close in which, 8cc. being the said sough in.the said indenture first ^ibove set forth mentioned, and keep arid continue the same pit or hole so dug and made as aforesaid, and the said sough or drain so opened and uncovered as aforesaid, for the 6aid time in thesaid dec laration mentioned, as the said plaintiffhath above thereof complained, for the purpose of the needful and necessary repairing, opening, and cleansing the sough, for the uses and purposes in that behalf as aforesaid; as he the said defendant then and there lawfully might, the same then and there being necessary, reasonable, and proper to be done for the purpose of such repairing, opening, and cleansing the said sough.

Replication. That the said indenture in that .plea mentioned was an indenture in these words, that is to

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1806. say, " this indenture made, &c. A D. 1747, between I»mso!» Robert Stansfield, Esq. of the one part, and Jeremy mnut Marshall of the other part, witnesseth, that the saidt Iblb. Robert Stansfield for and in consideration of the suur of 42s. of lawful British money to him in hand paid by the said Jeremy Marsfiall at or before the execution thereof, the receipt whereof he doth hereby acknowledge, and of the covenant or covenants hereinafter contained, and by the said Jeremy Marshall his heirs and assigns, to be done and performed, hath given and granted, and by these presents doth give and grant unto the said Jeremy Marshall his heirs and assigns, full and free liberty for him the said Jeremy Marshall his heirs and assigns, and his and their agents and workmen to carry up a sough from the bottom or edge of the hill near a brook in a parcel of woody ground in Heaton, in the said county, being the estate of the said Robert Stansfield, and now in the possession of one Peter Atkinson, into a parcel of woody ground of the said Jeremy Marshall in Heaton aforesaid, in the possession of Jasper Pickard, which said two several parcels of woody ground adjoin upon or lie contiguous to one another; and also full and free liberty for him the said Jeremy Marshall his heirs and assigns, and his and their agents and workmen to make two little sough pits in the said piece of woody ground of him the said Robert Stansfield, near the edge of the hiil or brook there, for the more easy and safe carrying up the tail of the said sough, one of the said sough pits to be covered from the top of the said intended sough to the surface of the ground as soon as conveniently may be done after the making thereof, and the other to be kept open for examining the sough as long as is necessary for that purpose, and no longer: and also full and free liberty for him the said Jeremy Mar&hall his heirs and assigns, and

his and their agents and Workmen to bring the rub-* bish which may rise in another sough pit made or intended to be made in the said parcel of woody ground of the said Jeremy Marshall from snch lastmentioned sough pit, and cast and throw the same" into a certain hollow place, in the said pardel of wood/ ground belonging to the said Robert Stansfield; arid near the said brook there, for the rendering more safe and commodious the cartway which'"ifc intended to be made by the said Jeremy Marshall for the in-* habitants of Shipley, and others through his owri ground there, to and from the intended colliery, and also full and free liberty for the said Jeremy Marshall his heirs and assigns, and his and their agents and workmen to get stones in the said pareel'df woody ground belonging to the said Robei't Statitfield formating the said intended sough, and for mending arid repairing such part of the fence or walls belonging to the said Robert Stamficld'm the said wVJttdy'ground as shall be broken down or"injured by the said Jeremij Marshall his heirs or assign;?, or his dr their agents or workmen ; and the said Jeremy Marshall- for himself, his heir3, executors, and adiifinistra'tbrs doth covenant and agree to and with the said ■ Robert Stans-i Jield, his heirs and assigns, that he 'the1 said Jeremi/ Marshall his heirs or assigns, or his or their agents or workmen shall not do anv damage, to the treses *ro\vin'» in the sa>d parcel of woody ground "flf hitn the said' Jtobert Stamjield. nor get any of«he; said Robert Siartsfleld's von\$ but what shall arise-in the drift of the said intended sough, and that it shall and maybe lawful to and for the said Robert Stamjield, his heirs and assigns and his and their agents'from tfine to time and at all tim*s alter to descend or go down into any pit or ;iits of the said Jeremy Marshall his heirs or' assigns, for the better discovering whether any coals of the-said Robert Stanstield, hid heirs or assigns, so. xxxvi. x. s. 4 A

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