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that the detend.

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mage, one de.

PLEA-TITLE LESS THAN FREEHOLD-(Giving Colour (°), 133

ift. Not Guilty as to the whole : 2d, as to the said breaking, Plea ist, &c. in the said first Count mentioned above supposed to have been Nur guilty; 2d, committed by said H. A. &c. they the faid H. A. &c. by leave of, of the close, and &c. say that (aztio non); because they say, that W. B. and demised came to R. M. long before the said time when, &c. in the said first Count one of the de. of the said declaration mentioned, to wit, on, &c. at, &c. were fendants, by feiled in their demesne as of fee (amongst other things) of and in means where of the said close in the said first Count of the faid declaration men- ing colour to che tioned, and in which, &c. with the appurtenances, and being so pl.intiff under a thereof feised, afterwards, and long before the faid time when, pretendedde mife &c. in the said first Count of the said declaration mentioned, to fron A. B. to wit, on, &c. at, &c. by a certain indenture then and there made the pl.int ff, and between the said W. B. and R. M. of the one part, and the said ant and his ferH of the other part, one part of which said indenture, sealed vant», with the feal of the said W. B. and R. M. they the said H. A. the thed &c. now bring here into court, the date whereof is the day and Wrongfuilyerect

ed and doing da. year last aforesaid, they the said W. R. and R. M. for the confiderations therein mentioned, did demise, lease, and to farm let fendant in his unto the said H. amongst other things, the said close in which, own right, ard &c. with the appurtenances, to have and to hold to the said H. his the rest as luis executors, adininistrators, and aligns, from the fcaft day of the servants, and by Annunciation of the Blessed Virgin Mary then last part, for, and pulled down the

command, during, and unto the full end and term of sixty-five years from thed, and rethence next ensuing and fully to be complete and ended; by virtue moved the ma. of which faid deinile he the said H. afterwards, and long before terials to a prothe said tiine when, &c. to wit, on, &c. at, &c. entered into per place for the

use of plaintiff, upon the, said clole in which, &c, with the appurtenances, and that they and became and was poffelled thereof for the said terin so to him crected thereof demised, and being so thereof poffeiled, the faid plaintiff house, as it was claiming the said clofe in which, &c. with the appurtenances, under colour of a certain charter of demife pretended to be thereof made by the said W. and R. M. to him the said plaintiff for the term of his natural life before the said demise to as aforesaid made by the said W. B. and R. M. to the faid H. whereas nothing of the said close in which, &c. with the appurtenances, ever patied into the poffeffion of the said plaintiff by virtue of that charier of demise afterwards, and before the faic ime when, &c. in the frid first Count of the faid declaration mentioned, and during the continuance of the said term so demise to the laid H. as aforesaid entered into the said close in which, &c. with the appurtenances, and was thereof poflefled, upon whose poffeffion the taid H. in his own right, and to the said W. A. &c. as the servants of the said H. and by his command, at the said time when, &c. in the faid firit Count of the said declaration mentioned, entered into and upon the said close in which, &c. with the appurtenances, as being the close of the said H. and trod down and trampled upon, cruhed, damaged, and spoiled the grass there growing and being; as being the grass of the said H. growing and being in his faid close, and because the said erection or building in the said firit Count of the declaration mentioned before the said tiine when, (c) And licence in law (to abate nuisance.)

and

the

lawful for ther)

iu do

&c. in that Count mentioned, had been erected, and was then wrongfully standing and being in and upon the said close, taking up room there, and incumbering the same, and doing damage there to the said H. he the said H. in his own right, and the said W. A. &c. as the servants of the said H. and by his command, at the said time when, &c. in the said first Count of the said declaration mentioned, pulled down, threw down, proftrated, and destroyed the said erection or building and the materials thereof coming in the said first Count also mentioned, and took and carried away from and out of the said close to a proper and convenient place near the same, and there deposited and left the faid materials to and for the use of the said plaintiff, and dug up, subverted, raised, and spoiled the grass and earth, together with other the grass there respectively growing and being in the said first Count mentioned as being the soil, earth, and grass of the said H. growing and being in the said close, and erected and þuilt, and caused and procured to be erected and built part of the faid messuage or dwelling house in the said first Count mentioned in and upon the faid close, and expelled, put out, and amoved the said plaintiff from and out of the posseslion, use, and occupation of part of his faid clore, and kept and continued him so expelled, put out, and amoved, and the faid part of the mesfuage or dwelling-house so erected and built on the faid close as aforesaid for the said space of time in the said first Count of the faid declaration mentioned, as it was lawful for him to do for the cause aforesaid, which are the same breaking and entering the said close in the said first Count of the faid declaration mentioned, and treading down, &c. for the said space of time in the said first Count mentioned, whereof the said plaintiff hath above complained against the said H. W. A. &c.; and this they the faid defendants are ready to verify; wherefore they pray judgment if the said plaintiff ought to have his aforesaid action thereof maintained against them, &c.

WM. BALDWIN.

Replication to And as to the said plea of the said defendants by them laftly the latt plea, ad. above pleaded in bar as to the breaking and entering, &c. above B. was feifed, committed by the faid defendants, he the said plaintiff fays, that and deinised the notwithstanding any thing in that plea alledged, he ought not to premises to de- be barred from having or maintaining his aforesaid action thereof fendant, who against them; because he says, that the said W. B. and R. M. in afterwards de mired fame to

the said plea mentioned were feiled in their demesne as of fee of plaintiff, by

and in the said clole in the said first Count of the said declaration means of which mentioned in which, &c. with the appurtenances, and that they he entered ; and demised the fame, with the appurtenances, unto the said H. in

manner and form as the said H. W, &c. have above in that plea pulling down the alledged; yet the said plaintiff in fact further says, that after the med, carrying making of the said demise to the said H. and before the said time aw:y the mate- when, &c. in 'the said first Count of the faid declaration men. zials,

erecting tioned, to wit, on, &c. at, &c. by a certain indenture then and the house, that there made between the said H. of the one part, and the said defendants injuria, &c.

plaintiff

that as

to the

&c.

de

plaintiff of the other part (one part of which faid indenture, sealed with the seal of the said H. and bearing date the day and year laft aforesaid, the said plaintiff now brings into court here), he the said H. for the confideration therein mentioned, did demise, lease, fet, and to farm let unto the faid plaintiff (amongst other things) the said close in the first Count of the said declaration mentioned in which, &c. with the appurtenances, to have and to hold the fame, with the appurtenances, unto the said plaintiff, his executors, administrators, and afligns, from the feast day of St. M. which was A. D. 1781, for and during, and unto the full end and term of eighty-three years and one half wanting three days from thence next ensuing and fully to be complete and ended; by virtue of which said demise he the said plaintiff afterwards, and before the said time when, &c, in the said first Count mentioned, to wit, on, &c. at, &c. entered into and upon the faid close so to him demised as aforesaid, and in which, &c. with the appurtenances, and became and was thereof possessed for the laid term so thereof demised to him as aforesaid, and so remained and continued from thence until and at the said time when, &c, in the said first Count of the said declaration mentioned, when they the faid defendants, of their own wrong, broke and entered the said close in the said first Count of the said declaration inentioned, and trod down, trampled upon, consumed, damaged, and spoiled the grass there growing and being, and pulled down, threw down, prostrated, and destroyed the said erection or building in that Count mentioned, and the materials thereof took and carried away, and dug up and subverted, raised, and spoiled the soil and earth, together with other the grass there respectively growing and being, and erected and built, and caused and procured to be erected and built part of the said messuage or dwelling-house in the said firit Count mentioned in and upon the said close, and expelled, put out, and amoved the faid plaintiff from and out of the poffeffion, use, and occupation of part of his faid close, and kept and continued him so expelled, put out, and amoved, and the faid part of the faid mesluage or dwelling-house fo erected and built on the said clore as aforesaid for the said space of time in the said first Count mentioned in manner and form as the said plaintiff hath above thereof complained against them; and this he is ready to verify; wherefore inasmuch as the said defendants have above acknowledged the faid trespass, he the said plaintiff prays judgment and his damages, by him sustained on occasion of the committing thereof, to be adjudged to him, &c.

SAM. SHEPPERD. And the said defendants, as to the said plea of the said plaintiff Rejoinder, that by him above pleaded by way of reply to the said plea of the said defendant defendants by them laftiy above pleaded in bar as to the breaking, not demise &c. above supposed to have been committed by the faid defendants, say, that the faid plaintiff, by reason of any thing in his said plea. lo by him pleaded by way of reply as aforesaid alledged, ought not to have his aforesaid action thereof maintained against thein;

K4

because

did

because they say, that he the said H. did not demise, lease, fet, of to farm-let unto the said plaintiff the said close in the said first Count in the said declaration mentioned in which, &c. with the appurtenans ces, in manner and form as the said plaintiff hath above in that behalf alledged, and of this they put themselves upon the country, &c. and the said plaintiff doth the like, &c. therefore as well to try this issue as the said other issue above joined between the said para ties, let a jury come before our lord the king at Westminster on Monday, &c. by whom, &c. who neither, &c. to recognize, &c. because as well, &c. the same day is given to the parties there, &c,

of

as the taid Tliomas here

on,

(9) Declaration, DOOLER 2 CHESHIRE, to wit. Thomas Simeock, late

against of, &c. was attached to answer William Dooler in a lands which he SIMCOCK. J ples of trespass on the case; and thereupon the said let to defendant William, by A. B. his attorney, complains, (1) that whereas, as tenant at will; before and at the time of the committing the grievance hereafter defendant

cut next mentioned, be the said William was and from thence hitherto, cown the trees hath been, and still is feifed in his demesne as of fee of and in that were grow divers lands, with the appurtenances, situate, &c. in the parish of, troyed the &c. in the said county of Cheshire, which said lands before and at hedges

, &c. &c the time of commiting the grievance hereafter next mentioned, were (1) and where, and froin thence hitherto have been, and fill are in the pollefion of

the said Thomas as tenant thereof, to wit, as tenant from year ta, toivre, to wit, year thereof to the said William at and under a certain yearly rent

was of twenty pounds, puyable by the said Thomas to the said William for and from thence the fame; yet the said Thomas contriving, &c. the faid William hitherto

in bis said (2) ftite and interest of and in his faid lands, with the been, and itilles the occupier and appurienances, whilst he the said Thomas was fo possessed of poil for of cer the said (3) lands, with the appurtenances, and whilst be the said tain other lants, Williain was fo feised thereof as aforesaid, to wit, on, &c. and with the appur- between the time and the commencement of this fuit at, &c. wrong. tenances, of the fully and unjustly cut down, pulled down, dug up, rooted up, situate in the prostrate!, and deitroyed, and wrongfully and unjustiy caused and par fh.ndcounty suffered to be cut down, &c. divers large quantities of withies afy craid, as and willows, to wit, five hundred withies and five hundred willows Anant tl.ercofio there then growing and being on a certain part of the said (4) him the faid William,

lands, and separating, dividing, and defending the same from a during all the certain large pit on the other side thereof, and thereby then and there

aforesaid left the fame open to the aid pit, and then and there wrongfully was and till is and unjustly dug up, tore up, rooted up, subverted, damaged, and Tevention there destroyed, and wrongfully and unjustly caused and procured to be of next and im. dug up, &c. a large quantity of the hedges and fences there then media:ely after respectively growing and being, and of and belonging to the faid the determina (5) lands and to the freehold thereof, to wit, fifty perches (6) tic.n of the lad of ' a certain hedge there then growing and being on a certain part tenancy theref

faid oj the said lands, and separating and dividing the same from certain Thomas ;"

large common or waste lands thereto contiguous and adjoining, and (2) " reverfionary interest.”' (3) " laft-mentioned' (4) “ last-mentioned" (5) " latt-mention. id" (0) “ of the hedges"

(2) This is a declaration in Tort to Corporeal Rigóts in nature of wafe, and out merely Trespass, therefore misplaced. (See Index to Tort, Vol. VIII.

divers,

who

of

thc

divers, to wit, fifty perches of other the hedges, and fifty perches of other the fencing of and belonging to the faid (7) lands, with the appurtenances, and thereby then and there left and laid cpen the same respectively, and then and there took and carried away

tioned' the said withies and willows, and the materials of the said hedges and fencing, to wit, ten cart loads of wood, ten cart loads of bushes, and ten cart loads of underwood of the said Williain of a large value, to wit, of the value of one hundred pounds of lawful money of Great Britain, and converted and disposed thereof to, his own use, to wit, at, &c. ; whereby and by reason of which faid several (8) premises, the said William was and still is greatly injured and damnified in his faid estate and interest of and in his (8)“ laft-mene faid (9) lands, with the appurtenances, to wit, at, &c. &c.: And (9) “reverfion

t.oned'' whereas, &c. &c. [Go on with the second Count same as the

ary interest in first, onitting the parts in Italic, and inserting what is in the the said laftmargin:] And whereas also the said Williain heretofore, to wit, mentioned" on, &c. was lawfully possessed of divers other goods and chattels,

3d Count, to wit, one hundred timber trees, one hundred other withies, one hundred other willow trees, one hundred other trees, ten other cart loads of bulhes, ten other cart loads of underwood, and ten other cart loads of wood of a large value, to wit, of the value of one hundred pounds of like lawful money of Great Britain as of his own proper goods and chattels; and being so poflefled thereof, he the said William afterwards, to wit, on, &c. casually lost the said goods and chartels out of his hands and poflession, and they afterwards, to wit, on, &c. at, &c. came into the pofleffion of the said Thoinas by finding ; yet the said Thomas well knowing the said goods and chattels to be the goods and chattels of the faid William, and to him of right to belong and appertain, but contriving, &c. the said William hath not as yet delivered the faid goods and chattels or any part thereof to him the said William, although often requested fo to do; but on the contrary, the faid William faith, that the said Thomas afterwards, to wit, on, &c. at, &c, converted and disposed of the said goods and chattels to his own use, to the damage of the said William of two hundred pounds; and therefore he brings his fuit.

V. LAWES.

CASE. Defendant, being tenant from year to year 10 plaintiff, committed watte (or trespass) in cutting down several wi. thies or willows, and also a hedge, thereby laying the freehold open to the waste land, though that front of the estate to which the freehold is now laid open has been lately inclosed. Note. The withies or willows grew along the side of a pit, and were a defence against the fame, and the hedge only to the waste. Plaintiff unadvisedly since the damage was done, and a little time before the writ was sued out, received half a year's reat due the twenty-fifth of March,

Is the damage above Nated sufficient to maintain an action, and if fo, is the plaintiff's acceptance of the rent a bar to the fame or not, and if not, how would you advise the plaintiff to declare, whether in action of trespass on the case or walte, defendant being little more than tenant at will, viz. from year to ycar under no particular agreement, but a ceitan rent, or novo otherwise would you advise the pla ntiff to proceed?

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