Declaration for

breaking and entering divers

and with cattle

riages fubvert

I am of opinion that under the circumftances here ftated, the plaintiff may maintain an action upon the cafe in nature of waste for the damage done to his reverfionary intereft by the cutting down of the willows, trees, and other

STACEY
against

fencing. The acceptance of rent fince
the injury is not material; certainly not
as a bar to the action, whatever effect
it may have in mitigation of damages if
it was received without complaining of
the injury.
V. LAWES.

MIDDLESEX, to wit. For that whereas the faid defendants

clofes of plaintiff LUDLOW AND ANOTHER. Son, &c. and on divers other days in the occupa. and times between that day and the day of exhibiting the bill of tion of different the faid plaintiff, with force and arms, broke and entered the people, and with clofes, to wit, &c. of the faid plaintiff, in the parifh of, &c. in, feet in walking &c. and divers other clofes or pieces or parcels of ground of the depafturing, faid plaintiff refpectively lying and being difperfed in a certain fpoilingthegrafs, large common field called, &c. in the parish and county aforefaid, and with the that is to fay, one piece or parcel of ground in the common field wheels of car- adjoining towards the north on certain land there in the occuing the foil, &c, pation of one H. T. and towards the weft on certain land there, in the occupation of one E. T. and one other close or piece or parcel of ground, lying and being in the faid common field, called, &c. adjoining towards the north on certain land there, in the occupation of one J. L. towards the east on certain other land there in the occupation of the faid E. T. towards the weft on certain land there in the occupation of the faid J. L. and towards the fouth on a certain common king's highway leading between H. in the faid county of M. and C. in the fame county, and divers, to wit, twenty-five clofes or pieces or parcels of ground of the faid plaintiff, lying and being difperfed in a certain other large common field, in the parish and county aforefaid called, &c. and with feet in walking then and there trod down, trampled upon, confumed, and spoiled the turnips, grafs, and corn, to wit, wheat, rye, barley, oats, beans, and peafe of the faid plaintiff of the value of one hundred pounds then refpectively growing and being in his faid closes and pieces or parcels of ground, and with certain cattle, to wit, horfes, mares, geldings, bulls, oxen, cows, fwine, and fheep then and there depaftured, eat up, trod down, confumed, and fpoiled other turnips, grafs, and corn, to wit, &c. of the faid plaintiff of the value of one hundred pounds there then alfo refpectively growing and being in the faid clofes and pieces or parcels of ground, and with the wheels of waggons, carts, and carriages dug up, tore up, fubverted, and spoiled the foil, to wit, twenty perches of the foil of the faid plaintiff in his faid clofes or pieces or parcels of ground refpectively, and then and there did other wrongs to the faid plaintiff against the peace of our faid lord the king, and to the damage of the faid plaintiff of two hundred pounds; and therefore, &c. V. LAWES

First plea, the general iffue of non cul.; And for fur- Plea. Right of ther plea in this behalf as to the breaking and entering the faid way private by clofe of the faid plaintiff in the faid declaration mentioned cal- grant. led the Two Acres under the Elms in the Middie Veer, and the said two closes refpectively called, &c. and with feet, &c. and with horses, &c. part of the faid cattle in the faid declaration mentioned depafturing, &c. and with the wheels, &c. digging up in his faid laft-mentioned closes by the faid defendants above fupposed to have been done, they the faid defendants, by leave of the court, &c. fay, that the faid plaintiff ought not to have or maintain his aforefaid action thereof against them; because they say, that long before and at the said several times when, &c. one C.M. was, and from thence hitherto hath been, and still is feifed in his demefne as of fee of and in a certain other piece of land called, &c. with the appurtenances in the parish aforefaid ‡, and that the faid C. M. and all those whofe eftate he now has, and at the said several times when, &c. had of and in the said last-mentioned piece of land called, &c. with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have had, and have been ufed and accustomed to have, and of right ought to have had, and the said C. M. being fo feised as aforesaid, ftill of right ought to have for himself and themfelves, and for his and their farmers and tenants, occupiers of the faid laft-mentioned piece of land called, &c. with the appurtenances, for the time being, a certain way from the common king's highway at the parish aforefaid, leading from, &c. to, &c. into, through, and over the faid clofe in which, &c. called, &c. and the said two closes respectively called, &c. unto the faid piece of land of the said C. M. and from thence fo back again in the fame way to the faid common king's highway at, &c. to go, return, pafs, and repafs with their fervants, and with their carriages drawn by their cattle every year at all times of the year as often as need or occafion required, for the necessary and convenient cultivation, improvement, and enjoyment of the fame piece of land of the faid C. M.: And the faid defendants further fay, that the faid C. M. being fo feifed of and in his faid piece of land, with the appurtenances, as aforefaid, before the said first time when, &c. to wit, on, &c. at, &c. demised the said piece of land, with the appurtenances, amongst other things to the faid defendants, to hold the fame to him the faid defendant from the faid, &c. for the space of one whole year then next following, and so on from year to year for fo long as the faid C. M. and the faid defendants fhould pleafe; by virtue of which faid demife the faid defendants afterwards, and before the faid first time when, &c. to wit, at, &c. entered into the faid laft-mentioned piece of land, with the appurtenances, and became and was, and from thence hitherto hath been and ftill is poffeffed: And the faid defendants further fay, that before the said several times when, &c. the faid plaintiff had caused the way of the faid defendants in the fame clofe called, &c. and the faid two clofes refpectively called, &c. to be ploughed up and fown with corn, and the corn fo fown before and

at

at the faid feveral times when, &c. was ftanding and growing thereon, fo that the faid defendant could not conveniently have or ufe his fame way there, and the faid plaintiff thereupon a little before the said first time when, &c. to wit, on, &c. in the fai declaration mentioned, affigned a certain other way in and through a certain part of the faid clofe called, &c. and of the faid two clofes refpectively called, &c. to be ufed by the faid defendant for and in lieu of the faid way to which he was entitled as aforefaid || ; and the faid defendant being fo poffeffed of the faid piece of land fo demifed to him as aforefaid, he the faid W. in his own right, and the faid James as his fervant, and by his command at the faid feveral times when, &c. entered into the faid three laft-mentioned clofes in which, &c. § with the faid carts, waggons, and other carriages in the faid declaration mentioned, being the carts, &c. of the faid defendant, and with the faid horfes, &c. part of the faid cattle in the faid declaration mentioned, being the cattle of the said defendant drawing his faid carts, &c. to use their faid way fo affigned as aforefaid for and in lieu of his faid way, to which he was otherwise entitled as aforefaid, and did therewith pafs and repafs from the faid common king's highway at, &c. into, through, and over the faid three laft-mentioned clofes in which, &c. in the faid way fo affigned there to the faid piece of land fo demifed to the faid defendant as aforefaid, and from thence back again in the faid way so affigned as aforefaid to the faid common king's highway at, &c. for the neceflary and convenient cultivation, improvement, and enjoyment of the faid piece of land fo demifed to the defendant as aforefaid, they the faid defendants ufing the faid way fo affigned there as it was lawful for them to do for the cause aforefaid, and in fo doing they the faid defendants did neceffarily and unavoidably at the faid feveral times when, &c. with their feet in walking tread down, trample upon, confume, and fpoil a little of the turnips, grafs, and corn of the faid plaintiff in his faid three last-mentioned clofes in the faid way fo affigned as aforefaid there then growing and being, and with the faid horfes, &c. did neceffarily tread down, &c. a little of the other turnips, &c. of the faid plaintiff in the fame way fo affigned as aforefaid, there then alfo growing and being in the aid clofes, &c. in paffing, &c. along and through the faid way fo alli ined as aforefaid there at the faid feveral times when, &c. by fealth, and againit the will of the faid defendants, fnatched, depaftured, &c. a little of the other turnips, &c. in the fame way there, and on the fides thereof alfo then growing and being, and with the wheels of the faid carts, &c. the faid defendants, at the faid feveral times when, &c. in paffing and repaffing in and along the fame way in the faid three last-mentioned clofes in which, &c, did neceffarily and unavoidably tear up, &c. a little of the foil of the faid plaintiff there, doing as little damage there to the faid plaintiff as on that occation they poffibly could, which are the fame trei a les in the introduction to this plea mentioned, and this the faid defendants are ready to verify, &c. &c.; And for further plea as to, &c. (actio nan); becaufe they fay, that be

fore

com non of paf.

ture.

fore and at the faid feveral times when, &c. the faid clofe called the Two Acres under the Elms in the Middle Veers, and the faid clofes refpectively called the Two Acres in the Middle Veer, and the faid clofe called the Four Acres in the Hitching, were and now are fituate and being difperfed in and were and are part and parcel of the faid large common field called Weftfield, and that long before and at the faid feveral times when, &c. the faid C. M. was, and from thenceforth hitherto hath been and still is feifed in his demefne as of fee of and in a certain other piece of land called the Two Long Acres, with the appurtenances, at, &c. and part and parcel of the fame common field, and that the faid C. M. and all those whose estate, &c. &c. [as in page 139 from this mark to page 140 to this mark, then proceed as follows]: And alfo a certain part of the faid ciofe called the Four Acres in the Hitching, to be used by the faid William for and in lieu of the faid last-mentioned way to which he was entitled as aforefaid; and the faid William being fo poffeffed of the faid piece of land fo demised to him as laft aforefaid, he the faid William in his own right, and the said James as his fervant, and by his command at the faid feveral times when, &c. entered into the four last-mentioned clofes in which. &c. with the faid carts, waggons, &c. &c. [as in page 140 from this mark § to the end of the plea, only instead of faying three laft-mentioned clofes fay four laft-mentioned clofes]: 5th Plea,right of And for further plea in this behalf as to, &c. [Fourth plea was a plea of licence, &c.]: And for a further plea in this behalf as to, &c. (actio non); because they fay, that as well the faid laftmentioned clofe in the faid declaration mentioned called the Two Acres in the Middle Veer, and the faid other clofes in which, &c. refpectively called the Acre in the Upper Veer, the Half Acre in the Upper Veer, the Hill in the Upper Veer, the Yard in Purlock, and the Acre in Purlock, as the faid clofes or pieces or parcels of land of the faid Richard in the faid declaration mentioned to be refpectively lving and being difperfed in the faid common field called the Weftfield are, and at the faid feveral times when, &c. were, and from time whereof the memory of man is not to the contrary hitherto have been part and parcel of the faid common field called Weftfield, in the liberty of Eye and Dunfdon, in the faid parish of, &c. and fituated and being not in, but in other parts thereof than a certain part of that common field called, &c. and from that time whereof, &c. hitherto the faid common field called Westfield, whereof, &c. except the faid part whereof called the Hitching, hath been tilled, manured, and hufbanded, and hath been used and accustomed to be tilled, &c. and yet of right ought to be tilled, &c. in fuch manner that the fame in three years fucceffively of every four years of the faid time hath and ought to have been fown with corn or grain, and hath and ought to have lain fallow every fourth or fucceeding year, that is to fay, from the tenth of October until and upon the tenth of October then next following, and that long before and at

the said several times when, &c. the faid C. M. was, and from thenceforth hitherto hath been and ftill is feifed in his demesne as of fee of and in divers, to wit, one hundred acres of land, with the appurtenances, lying and being in the faid liberty of Eye and Dunfdon, in the faid parish of, &c.: And the faid William and James further fay, that the faid C. M. and all those whofe eftate he now has, and at the said several times when, &c. and of and in his faid laft-mentioned land, with the appurtenances, for the time being, from time whereof, &c. have had and have used, and been accustomed to have, and of right ought to have had, and the faid C. M. being fo feifed as laft aforefaid, ftill of right ought to have for himfelfand themfelves,his and their tenants and farmers, occupiers of the said last-mentioned land, with the appurtenances, for the time being, common of pasture in, upon, and throughout the faid common field called Weftfield, whereof, &c. the fame part of the faid field called the Hitching, and his and their own land in the refidue of the fame field only excepted, for all his and their cattle levant and couchant in and upon the faid laft-mentioned land, with the appurtenances, whereof the faid C. M. was fo feifed as laft aforefaid every year when the faid common field called Weft Field, whereof, &c. or fome part thereof, except the faid part thereof called the Hitching, hath been refown with grainor corn, and in every year when the faid common field called Weftfield, whereof, &c. except the faid part thereof called the Hitching, hath not been, nor ought to have been fown with corn or grain, but hath or ought to have lain fallow according to the usage and courfe of husbandry aforefaid at all times of fuch year as to the faid laft-mentioned land of the faid C. M. with the appurtenances, belonging and appertaining: And the faid William and James further fay, that the faid C. M. being fo feifed of and in the faid laft-mentioned land, with the appurtenances, as aforefaid, and before the faid first time when, &c. to wit, on, &c. at, &c. demifed the fame, with the appurtenances, to the faid William, to hold the fame to him the faid William from, &c. in the year laft aforefaid for the space of one whole year then next following, and fo on from year to year for fo long a time as the faid C. M. and the faid William fhould please; by virtue of which faid laft-mentioned demise the faid William afterwards and before the faid first time when, &c. to wit, on, &c. entered into the faid laft-mentioned land, with the appurtenances, and became and was, and from thence hitherto hath been and ftill is poffeffed thereof: And the faid William and James further fay, that the faid common field called Weftfield, whereof, &c. except the faid part thereof called the Hitching, according to the ufage and courfe of husbandry in that behalf aforefaid, ought not to have been fo fown with corn or grain, but ought to have lain fallow from the tenth of October 1785 until and upon the tenth of October in the said year 1786, the fame time being the fourth year in that behalf aforefaid; and the faid William being fo poffeffed of the faid last-mentioned land, with