difpofed of the fame to his own ufe, and with his feet in walking trod down, confumed, and spoiled the grafs of the faid Charles then growing in his faid clofes called Cooper's Meadow, the Meadow, otherwife Mr. Wefton's Meadow, the Pleasure Ground, and the Corner, otherwife the Watering Place, of the value of forty pounds: And alfo for that the faid Thomas afterwards, to wit, 2d Count, free on the faid fourth day of May, in the faid year of Our Lord 1787, fithery. and on divers other days and times between that day and the day of exhibiting the bill of the faid Charles, broke and entered a certain other feveral" the free" fifhery of the faid Charles, at the faid parish of Cobham, in the faid county of S. and fifhed therein for fish, and other the fish of the faid laft-mentioned fishery of the faid Charles, to wit, one hundred other, &c. &c. &c. &c. of the value of other twenty pounds, then and there found, catched, took, and carried away, and then and there converted and difpofed thereof to his own use. [3d Count exactly like the fecond, omitting the 3d Count, fevewords in Italic, and inferting the words within inverted commas]; ral fishery. and other wrongs, &c.

nant to two an

cient mills of

And the faid Thomas, by John Barber his attorney, comes and Pleas; ift, Not defends the force and injury, when, &c. and fays he is not guilty of guilty. the premises above laid to his charge, in manner and form as the faid Charles hath above thereof complained againft him; and of this he puts himself upon the country, &c.; and the faid Charles doth the like: And for further plea in this behalf, as to the entering the 24, Juftificafaid close covered with water called the River Mole, in the first tion, defendant Count of the faid declaration mentioned, and fishing in the fishery mand of his fished by comof that close for fifh, and the fish there found catching, taking, mafter in right and carrying away, and converting and difpofing of the fame, and of common of throwing down, breaking to pieces, and proftrating the faid pofts fishery appurteand chains in the faid firft Count mentioned, and the materials thereof coming taking and carrying away, and converting and which he was difpofing thereof above fuppofed to have been committed by the feifed in his defaid Thomas, he the faid Thomas, by leave of the court here to meine as of fee, him for that purpofe granted, according to the form of the ftatute and pulled down in fuch cafe made and provided, fays, that he the faid Charles rails in order to ought not to have his aforefaid action thereof maintained against enjoy fishery. him; because he fays, that one James Cooper, long before and at the several times when, &c. was and ftill is feifed in his demefne as of fee of and in two ancient water corn mills under one roof, called Cobham Mills, with the appurtenances, ftanding and being on a certain ancient river called the River Mole, at the parish of C. aforefaid; and that the said James Cooper and all those whofe eftate he now hath, and at the faid feveral times when, &c. had of and in the faid mills, with the appurtenances, from time whereof the memory of man is not to the contrary, have had and have used, and been accuftomed to have, and of right ought to have had, and the faid James Cooper ftill of right ought to have common of fishery in the faid river and fithery in which, &c. every year, at all seasonable times of the year, at their free will and pleature, as to

a little of the

the faid mills, with the appurtenances, belonging and appertain ing; and the faid James C. being fo feifed of the faid mills, with the appurtenances, he the faid Thomas, at the faid feveral times when, &c. being feafonable times of the year for that purpose, as the fervant of the faid James Cooper, and by his command, entered the faid river and fishery in which, &c. and fifhed therein for fifh, and the fish therein found caught, took, carried away, and converted and difpofed of the fame to the use of the faid James Cooper, ufing his faid common of fishery there; and because the faid pofts and chains had been wrongfully erected, fixed, and placed, and at one of the faid times when, &c. were standing and being in the faid clofe covered with water in which, &c. fo that without removing the faid pofts and chains the faid common of fishery could not be then and there ufed and enjoyed in fo ample and beneficial a manner as it otherwife might and ought to have been, he the faid Thomas, at the faid laft-mentioned time when, &c, as the fervant of the faid James Cooper, and by his command, in order to have the full ufe and enjoyment of the faid common of fishery in the faid clofe covered with water in which, &c. did throw down and proftrate the faid pofts and chains, and in fo doing did a little break the fame to pieces, and the materials thereof coming took, and carried away, and left at a little diftance, and in a proper and convenient place for the ufe of the faid Charles, as he lawfully might for the caule aforefaid, doing as little damage on that occafion as he poffibly could, which are the fame trefpafles in the introductory part of this plea mentioned, whereof the said Charles hath above complained against the said Thomas; and this he the faid Thomas is ready to verify; wherefore he prays judgment if he the faid Charles ought to have his action thereof main3d, Rubbish col- tained against him, &c.: And for a further plea in this behalf, as lected about rails to the entering the faid clofe covered with water called the River obftructed wa- Mole, in the faid firft Count of the faid declaration mentioned, through and and throwing down, breaking to pieces, and proftrating the faid posts and chains in that Count mentioned, and the materials thereof coming, taking, and carrying away, and converting and difpofing thereof, above fuppofed to have been committed by the faid Thomas, he the faid Thomas, by like leave, &c. (actio non); because he fays, that one James Cooper, long before and at the said feveral times when, &c. was, and ftill is feifed in his demefne as of fee of and in two ancient water corn mills under one roof called Cobham Mills, with the appurtenances, ftanding and being in the faid river called the River Mole, at the parish of C. aforefaid, and that the faid river, from time whereof the memory of man is not to the contrary, until the obftruction thereof hereinafter mentioned, hath run and flowed, and hath used and been accustomed to run and flow, and ftill of right ought to run and flow through and from the faid mills in its ancient and accustomed course, unto, over, and along the faid clofe covered with water in which, &c. without any obftruction or hinderance whatsoever; and the faid James Cooper, and all thofe whofe eftate he now hath, and at the

ter flowing

from mills.

feveral

feveral times when, &c. had of and in the faid mills, with the appurtenances, from time whereof the memory of man is not to the contrary, have had and have ufed, and been accustomed to have, and of right ought to have, and the faid James C. ftill of right ought to have the ufe and benefit of the water of the faid river running and flowing in manner aforefaid, for the convenient working and enjoyment of the faid mills, with the appurtenances, as to the faid mills, with the appurtenances belonging, and appertaining; and because the faid pofts and chains had been wrongfully erected, fixed, and placed at one of the faid times when, &c. were ftanding and being in the faid clofe covered with water in which, &c. in and across the faid river, and together with divers. large quantities of weeds and rubbish which had collected and lodged upon and against the faid pofts and chains were obftructing and hindering the faid river from running and flowing through and from the faid mills in its ancient and accustomed courfe there, to the great damage of the faid mills, which by reafon of the faid obftruction and hinderance could not be worked and enjoyed in fo ample and beneficial a manner as they otherwife might and ought to have been, he the faid T. at the faid laft-mentioned time when, &c. as the fervant of the faid James Cooper, and by his command entered the faid clofe covered with water in which, &c. in order to remove, and did then and there throw down, and proftrate the faid pofts and chains, and in fo doing did a little break the fame to pieces, and the materials thereof coming took and carried away, and left at a little diftance, and in a proper and convenient place for the use of the faid Charles as he lawfully might, doing as little damage as he poffibly could, which are the fame, &c.; and this, &c.; wherefore, &c.: And for further plea in this behalf as to 4th Plea, went the entering the faid feveral clofes called the Corner, otherwife to fpeak to the Watering Place, Cooper's Meadow, Mr. Wefton's Meadow, plaintiff in and the Pleasure Ground in the faid firft Count of the faid decla- ing to plaintiff's ration mentioned, and with his feet in walking and treading down houf, whereby the grafs then growing in the faid clofes above fuppofed to have he trod down been committed by the faid Thomas, he the faid T. by like leave, little of the grass. &c. (actio non); because he fays, that the faid Charles, before the faid time when, &c. refided in a certain dwelling-houfe at the faid parifh of C. fituate and ftanding in the faid clofe called the Pleafure Ground in which, &c. and that for a long fpace of time now laft paft there hath been a certain common and ufual way to the faid dwelling-house of the faid C. through and over the faid feveral clofes called the Corner, otherwife the Watering Places, Cooper's Meadow, Mr. Wefton's Meadow, and the Pleasure Ground in which, &c. And the faid Thomas fays, that at one of the faid times when, &c. he the faid Thomas had a lawful occafion to speak with the faid C. at his faid dwelling-houfe, wherefore he the faid Thomas, at the faid laft-mentioned time when, &c. entered and paffed through the faid clofes called the Corner, otherwife the Watering Place, Cooper's Meadow, Mr. Wefton's Meadow, and the Pleafure Ground in which, &c. in and along

the

ufual way

lead

the faid common and ufual way to the faid dwelling-houfe of the faid C. in order to fpeak with the faid C. and in fo doing he the faid T. did unavoidably with his feet in walking tread down a little of the grafs then growing in the faid clofes as he lawfully might for the cause aforefaid, which are the fame, &c.; and this, gth plea,licence. &c.; wherefore, &c.: Fifth plea as to the fame trespasses as are juftified by the fourth, (attio non); because he fays, that he the faid T. by the leave, licence, and confent of the faid C. to him in that behalf given at the faid parish of C. entered the faid clofes called the Corner otherwife the Watering Place, Cooper's Meadow, Mr. W's Meadow, and the Pleasure Ground in which, &c. and with his feet in walking trod down a little of the grass then growing in the faid clofes as he lawfully might for the cause aforefaid, which are the fame, &c.; and this, &c.; wherefore, &c.; if, &c. S. MARRYAT.

affignment to

part of fecond

Replication as to And as to the plea of the faid Thomas by him fecondly above fecond plea, pleaded in bar as to the said several trefpaffes in the introductory traverses right of trammen to part of that plea mentioned by the faid Thomas above acknowery; as to third ledged to have been committed, the faid Charles fays, that he by dinjuria fua pro. reafon of any thing in that plea alledged, ought not to be barred pria and iffue; from having and maintaining his aforefaid action thereof against fourth, novel the faid Thomas, because he fays, that the faid Thomas of his own wrong at the faid feveral times when, &c. entered the faid plea; fifth, tra. clofe covered with water called the River Mole, in the firft Count verie and iffue. of the faid declaration mentioned, and fifhed in the fishery of that close for fish, and the fifh there found, catched, took, and carried away, and converted and difpofed of the fame, and threw down, broke to pieces, and proftrated the faid pofts and chains in the faid first Count mentioned, and the materials thereof coming took and carried away, and converted and difpofed thereof in manner and form as the faid Charles hath above complained against him the faid Thomas; without this that the faid James Cooper and all those whofe eftate he now hath, and at the faid feveral times when, &c. had of and in the faid mills, with the appurtenances, in the fecond plea mentioned, from time whereof the memory of man is not to the contrary, have had and have used, and been accustomed to have, and of right ought to have had, and the faid James Cooper ftill of right ought to have common of fishery in the faid river and fishery in which, &c. every year at all seasonable times of the year at their free will and pleasure; and as to the faid mills, with the appurtenances, belonging and appertaining as the faid Thomas hath in his faid plea fecondly above pleaded in bar alledged; and this the faid Charles is ready verify; wherefore inafmuch as the faid Thomas hath above acknowledged the aforefaid trefpaffes, he the faid Charles prays judgment and his damages, by him fuftained by reafon of the committing thereof, to be adjudged to him, &c.: And as to the faid plea of the said Thomas by him thirdly above pleaded in bar as to the faid feveral trespasses in the introductory part of that plea mentioned above acknow

ledged

ledged to have been committed by the faid Thomas, the faid Charles fays, that he, by reafon of any thing in that plea alledged, ought not to be barred from having and maintaining his aforefaid action thereof againft the faid Thomas; becaufe he says, that true it is that the faid James Cooper, long before and at the faid fcveral times when, &c. was and still is felfed in his demefne as of fee of and in the faid two ancient water corn mills under one roof called Cobham Mills, with the appurtenances, ftanding and being on the faid river called the river Mcle, at the parith of C. aforefaid, and that the faid river from time whereof the memory of man is not to the contrary, hath run and flowed, and hath used and been accustomed to run and flow, and ftill of right ought to run and flow through and from the faid mills in its ancient and accustomed courfe, unto, over, and along the faid close covered with water in which, &c. without any obftruction or hinderance whatsoever; and that the faid James C. and all those whofe eftate he now bath, and at the faid feveral times when, &c. had of and in the faid mills, with the appurtenances, from time whereof the memory of man is not to the contrary, have had and have ufed, and been accustomed to have, and of right ought to have had, and the faid James Cooper ftiil of right ought to have the use and benefit of the water of the faid river running and flowing in manner aforefaid, for the convenient working and enjoyment of the faid mills, with the appurtenances, belonging and appertaining in manner and form as the faid Thomas hath in his faid plea thirdly above pleaded in bar alledged; but the said C. further fays, that the faid T. of his own wrong, and without the refidue of the caufe in his faid plea thirdly above pleaded in bar alledged, at the said times when, &c. in the faid declaration mentioned, did enter the faid clofe covered with water called the River Mole in the firft Count of the faid declaration mentioned, and threw down, broke to pieces, and proftrated the faid pofts and chains in that Count mentioned, and the materials there of coming, took, and carried away, and converted and difpofed thereof in manner and form as the faid C. hath above thereof complained against him the faid Thomas; and this he the faid C. prays may be enquired of by the country, and the faid T. doth the like: And as to the faid plea of the faid T. by him fecondly above pleaded in bar as to the faid feveral trefpaffes in the introductory part of that plea mentioned above acknowledged to have been committed by the faid T. the faid C. fays, that he, by reafon of any thing in that plea alledged, ought not to be barred from having and maintaining his aforefaid action thereof againft the faid Thomas; because he fays, that he exhibited his faid bill and brought his faid action against the faid T. for that the faid. T. (amongst other trefpaffes in the faid declaration mentioned, at the faid times when, &c. entered the faid feveral clofes called the Coopeer, other wife the Watering Place, Cooper's Meadow, Mr. W.'s Meadow, and the Pleafure Ground in the faid firft Count of the faid declaration mentioned, and with his feet in walking VOL. IX. trod

N