convenient way the faid clofe fo aliened and conveyed to the faid John as aforefaid, to go, return, pafs, and repafs in manner aforefaid on foot, and with carts, waggons, and other carriages, and the cattle drawing the fame every year at all times of the year at his and their free will and pleasure, for the neceflary use and occupation of the faid clofe called the New Tyning, and thereof accordingly had and ufed the faid way until and at the time of the alienation and conveyance by the faid William M. of the faid laftmentioned close to the faid James as hereinafter fet forth: And the faid James further fays, that the faid William M. continuing fo feifed of the faid laft-mentioned clofe afterwards, and before any of the faid times when, &c. to wit, on the thirty-first of December A. D. 1788, at the parish aforefaid, by a certain indenture of bargain and fale then and there made between the faid William M. of the one part, the faid James and one Simon Gordon of the other part, which faid indenture, fealed with the feal of the faid William M. and bearing date the day and year laft aforefaid, the faid James now brings here into court, he the faid William M. for the confiderations therein mentioned, bargained and fold to the faid James (amongst other things) the faid clofe called the New Tyning, together with all ways, paths, paffages, and appurtenances whatfoever thereto belonging, or in anywife appertaining, to hold the fame to the faid James and Simon Gordon from the day next before the day of the date of the fame indenture for the term of one whole year from thence next enfuing, and fully to be complete and ended; by virtue of which faid indenture, and by force of the ftatute for transferring uses into poffeffion, the faid James and Simon G. became and were poffeffed of the fame clofe, with the appurtenances, for the said term of one year to them thereof granted as aforefaid, the reverfion thereof, after the expiration of the faid year, belonging to the faid William M. his heirs and affigns; and the faid James and Simon G. being fo poffeffed of the faid laft-mentioned close, with the appurtenances, fo bargained and fold to them as aforefaid, and the reverfion thereof belonging as aforefaid afterwards, to wit, on the first of January A. D. 1789, at the parifh aforefaid, by a certain indenture of relcafe then and there made between the faid William M. of the first part, the faid James of the fecond part, and the faid Simon G. of the third part (which faid laft-mentioned indenture, fealed with the feal of the faid William M. and bearing date the day and year laft aforefaid, the faid James now brings here into court), he the faid William M. for the confiderations therein mentioned, granted, aliened, and releafed to the faid James and Simon G. amongst other things, the faid reverfion of and in the faid clofe called the New Tyning, together with fuch ways, paths, paffages, and appurtenances thereto as aforefaid, to hold the fame unto and to the ufe of the faid James and S. G. and the heirs and affigns of the faid James in truft as to the eftate and intereft of the faid Simon G. for the faid James, his heirs and affigns; by virtue of which faid laft-mentioned indenture, and by

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force

force of the ftatute for transferring uses into poffeffion, the faid James and Simon G. became and were, and from thence hitherto have been, and still are lawfully feifed of the fame close, with the appurtenances, in their demefne as of fee in manner aforefaid: And the faid James further fays, that he at the faid feveral times when, &c. was in the actual poffeffion and occupation of the faid clofe called the New Tyning, wherefore he the faid James and his fervants by his command having occafion to use the faid way through and over the faid clofe in which, &c. at the faid feveral times when, &c. went, paffed, and repaffed on foot, and with the carts, waggons, and other carriages of the faid James, and the faid cattle drawing the fame in, by, and along the faid way there from the faid highway unto and into the faid clofe called New Tyning, and fo back again in the faid way there, ufing the fame as they lawfully might for the caufe aforefaid, and in fo doing the faid James and his faid fervants with their feet in walking, and with the aforefaid cattle, neceffarily and unavoidably trod down, trampled upon, confumed, and fpoiled a little of the grafs and corn of the faid John then ftanding, growing, and being in the faid close in which, &c. in the faid way there, and the faid cattle in fo paffing and repaffing along and through the faid way at the said feveral times when, &c. by ftealth, and against the will of the faid James eat up and depaftured a little of the faid grafs and corn of the faid John then standing, growing, and being in the faid close in which, &c. in the faid way there, and on the fides thereof, and the faid James and the faid fervants, with the faid wheels of the faid carts, waggons, and other carriages in paffing and repaffing with the fame in and along the faid way there, neceffarily and unavoidably tore up, turned up, and fubverted a little of the foil of the faid John of his faid clofe in which, &c. doing as little damage there to the faid John as they poffibly could, and because the faid way at one of the faid times when, &c. was wrongfully blocked up and obftructed by the faid gates, hedges, fences, rails, ftacks, and ricks of hay in the faid declaration mentioned, fo that the faid James could not then and there have, ufe, and enjoy the faid way as he then of right ought to have done, without fome breaking down, throwing down, pulling down, proftrating, breaking open, breaking to pieces, damaging, fpoiling, and destroying the faid gates, and breaking to pieces, forcing open, breaking open, wrenching open, demolishing, and fpoiling the faid locks, ftaples, and hinges, and without fome breaking down, throwing down, proftrating, pulling up, pulling to pieces, demolifhing, and deftroying the faid hedges, fences, pofts, and rails, and without pulling down, throwing down, overfetting, and overturning the faid ftacks and ricks of hay, and the removal of the faid obftructions, he the faid James, at the faid laft-mentioned times when, &c. in order to open the faid way, and to enable him to use the fame as he lawfully might, did neceffarily break down, throw down, pull down, proftrate, break open, and a little break to pieces, fpoil, and deftroy the faid gates, and did force

open,

ΠΟ

open, break open, wrench open, and a little break to pieces, demolish, and fpoil the faid locks, ftaples, and hinges, and did break down, throw down, proftrate, pull up, pull to pieces, demolish, and deftroy the faid hedges, fences, pofts, and rails, and did alfo pull down, throw down, overfet, and overturn the faid ftacks and ricks of hay, and thereby and in the removal of the faid hay to a little and convenient diftance in the said close in which, &c. (where the faid James left the fame for the ufe of the faid John) he the faid James unavoidably scattered fome small part thereof in and about the faid clofe, and left fome other fmall part thereof lying in the faid way there, and in going and paffing along the faid way with his carts, waggons, and other carriages, and the cattle drawing the fame at the faid laft-mentioned time when, &c. did with his faid cattle, and with the wheels of his aforefaid carts, waggons, and other carriages, neceffarily tread down, trample upon, crufh, confume, and fpoil a little of the faid hay fo then lying in the faid way as aforefaid, doing as little damage to the faid John on that occafion as he poffibly could, which are the fame trefpaffes in the introductory part of this plea mentioned, and whereof the faid John hath above complained against him; and this the faid James is ready to verify; wherefore he prays judgment if the faid John ought to have his aforefaid action thereof maintained against him, &c.: And for a further plea 3d Plea, that as to the breaking and entering, &c. (the fame trefpaffes aver- there was red by the preceding juftification) (atio non); because he fays, that other way. the faid clofe in the faid declaration mentioned, and in which, &c. is contiguous and adjoining towards the fouth-fide thereof to a certain ancient and public highway in the faid parish, and towards the north-fide thereof to a certain other clofe in the faid parifh called the New Tyning, and that before and at the faid feveral times when, &c. the faid James and one Simon Gordon were and ftill are lawfully feifed in their demefne as of fee of and in the said laft-mentioned clofe, with the appurtenances, and the faid James at those several times was and ftill is in the actual poffeffion and occupation thereof: And the faid James further fays, that during the time aforefaid there was not nor hath been any other way belonging or appertaining to the faid laft-mentioned close, to go, return, pafs, and repafs on foot, and with carts, waggons, and other carriages, and the cattle drawing the fame to the faid laftmentioned close, fave and except from and out of the aforefaid highway, through, over, and along the faid clofe in which, &c. unto and into the faid clofe called the New Tyning, for which reafon the faid James hath had and ufed, and of neceffity ought to have and use a convenient way for himself and his fervants to go, return, pafs, and repafs on foot, and with carts, waggons, and other carriages, and the cattle drawing the fame from and out of the aforefaid highway, through, over, and along the faid clofe called the New Tyning, and from thence back again through, over, and along the faid clofe in which, &c. unto and into the faid highway every year at all times of the year at his and their

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free

time of the alie

nation there was

free will and pleasure, for the neceffary ufe and occupation of the
faid close called the New Tyning; wherefore the faid James and
his fervants by his command at the faid feveral times when, &c.
being fo entitled to and having occafion to use fuch way as afore-
faid through and over the faid clofe in which, &c. at the faid feve-
ral times when, &c. went, paffed, and repaffed on foot, and with
the carts, waggons, and other carriages of the faid James, and the
faid cattle dawing the fame in, by, and along the faid way there-
from the faid highway unto and into the faid clofe called the New
Tyning, and fo back again in the faid way there, being the near-
eft and moft convenient way through the faid ciofe in which, &c.
ufing the fame as they lawfully might for the caufe aforefaid, and
in fo doing, &c. &c. [Verbatim as in the former juftification to
the end.]
S. MARRYAT.

Replication to
And the faid John, as to the faid plea of the faid James by him
2d plea, traverf- fecondly above pleaded in bar as to the feveral trefpalles in the in-
ing that at the troductory part of that plca mentioned, and thereby attempted to
be juftified, fays, that he by reafon of any thing in that plea alledg-
no other way as ed ought not to be barred from having and maintaining his afore
in that plea is faid action the: cof against the faid James; because he fays, that
mentioned, and true it is that the faid William M. for divers years before the
to the 3d plea, making of the alienation and conveyance to the faid John of the
de injuria fua pro-
pria; alfo tra- faid close in which, &c. was feifed in his demefne as of fee as well
verfing that of the faid clofe in which, as of the faid other clofe called the
there was no New Tyning in that plea mentioned, with their respective appur-

other way.

tenances, and being fo feifed of the faid refpective clofes, he granted, aliened, and conveyed the faid clofe in which, &c. with the appurtenances, to the faid John, his heirs, and affigns, as in that plea is mentioned; but the faid John further fays, that the faid James, at the faid feveral times when, &c. of his own wrong broke and entered the faid close in whicn, &c. and committed the refidue of the faid trefpaffes therein in the introductory part of that plea mentioned, in manner and form as the faid John hath above thereof complained against him; without this, that at the time of fuch alienation and conveyance of the faid clofe in which, &c. to the faid John, the faid William M. his farmers and tenants, occupiers of the faid clofe called the New Tyning, had no other way for themfelves and their fervants to go, return, pafs, and repafs on foot, and with carts, waggons, and other carriages, and the cattle drawing the fame to and from the faid laft-mentioned clofe, fave and except a certain way from and out of the aforefaid highway in the parish aforefaid through, over, and along the faid clofes in which, &c. unto and into the faid clofe called the New Tyning, and from thence back again through, over, and along the faid clofe in which, &c. unto and into the laid highway, and that the faid William M. for himfelf, his farmers and tenants, occupiers of the faid clofe called the New Tyning, after fuch alienation and conveyance of the faid clofe in which, &c. to the faid John, neceffarily ought to have had for themfelves and their fervants fuch way as

aforetaid,

aforefaid, to go, return, pass, and repafs in manner aforefaid on foot, and with carts, waggons, and other carriages, and the cattle drawing the fame every year at all times of the year at his and their free will and pleasure, for the neceffary use and occupation of the faid close called the New Tyning, in manner and form as the faid James hath in his faid fecond plea in that behalf above alledged; and this the faid John is ready to verify; wherefore fince the faid James hath above acknowledged the committing the feveral trefpafies in the introductory part of his faid fecond plea mentioned, he the faid John prays judgment and his damages by reafon of the committing thereof to be adjudged to him, &c.: And the faid John, as to the faid plea by the faid James by him To 3d Plea, de laftly above pleaded in bar as to the faid feveral trefpafles in the injuria, &c. introductory part of that plea mentioned, and thereby attempted to be juftified, fays that he, by reafon of any thing by the faid James in that plea alledged, ought not to be barred from having and maintaining his aforefaid action thereof against him; because he fays, that the faid James, at the faid feveral times when, &c. of his own wrong broke and entered the faid clofe in which, &c. and committed the refidue of the faid trefpaffes therein in the introductory part of that plea mentioned, in manner and form as the faid John ha-h above thereof complained against him, &c. ; without this, that during the faid time in that laft plea in that behalf mentioned, there was not nor hath been any other way belonging or appertaining to the faid clofe called the New Tyning, to go, return, pafs, and repafs on foot, and with carts, waggons, and other carriages, and the cattle drawing the fame to the faid last-mentioned clofe, fave and except from and out of the aforefaid highway in the parish aforefaid, through, over, and along the faid clofe in which, &c. unto and into the faid clofe called the New Tyning, and that the faid James hath had and ufed, and of neceffity ought to have and use a convenient way for himself and his fervants to go, return, pafs, and repafs on foot, and with carts, waggons, and other carriages, and the cattle drawing the fame from and out of the aforefaid highway through, over, and along the faid clofe in which, &c. unto and into the faid clofe called the New Tyning, and from thence back again through, over, and along the faid clofe in which, &c. unto and into the said highway every year at all times of the year at his and their free will and pleature, for the neceffary use and occupation of the faid clofe called the New Tyning, in manner and form as the faid James hath in his faid laft-mentioned plea in that behalf above alledged; and this the faid John is ready to verify; wherefore inasmuch as the faid James hath above acknowledged the committing the faid feveral trefpaffes aforefaid in the introductory part of his faid laft plea mentioned, he the faid John prays judgment and his damages by reafon of the committing thofe trefpaffes to be adjudged to him, &c.

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V. GIBBS.

And