the breaking the

the faid first Count of the faid declaration mentioned, as it was lawful for them to do for the cause aforefaid, which is the fame erecting and fetting up, and caufing, &c. &c. and keeping and continuing, and caufing, &c. &c. whereof, &c. &c.; and this, &c.; wherefore, &c. And for further plea in this behalf as to 4th Plea, as to breaking and entering the faid clofes in the faid laft Count of the clofes, digging, faid declaration mentioned, and with fpades, pickaxes, and other &c. they fay, that iron inftruments, digging up, fubverting, turning up, and the clofe is the fpoiling the foil in the faid clofes, and putting up, placing, and freehold of A B. erecting in and upon the faid clofes the faid pofts, pales, and rails in that Count mentioned, and keeping and continuing the fame fo there put up, placed, and erected for the faid fpace of time in the faid laft Count of the faid declaration mentioned, and putting, laying, cafting, and placing on the faid clofes the faid quantities of earth,. dirt, foil, filth, and rubbish in that Count mentioned, and keeping and continuing the fame fo there put, laid, and placed on the faid clofes in the faid laft Count of the faid declaration mentioned, and expelling the faid plaintiff, putting out, and amoving him from the poffeffion and occupation of a great part of the faid closes, and keeping and continuing the faid plaintiff fo expelled, put out, and amoved from the poffeffion and occupation thereof for the said space of time in the faid laft Count of the faid declaration mentioned by the faid defendants above fuppofed to be done, they the faid defendants, by like leave, &c. (actio non); because they fay, that the faid clofes in the faid last Count of the faid declaration mentioned are, and at the faid time when, &c. were the clofes, foil, and freehold of the faid B. C. wherefore the faid B. C. in his own right, and the faid B. T. and E. as fervants of the faid B. C. and by his command at the faid time when, &c. in the faid last Count of the faid declaration mentioned, broke and entered the faid clofes in the faid laft Count of the faid declaration mentioned, and with fpades, &c. dug, &c. the foil in the faid clofes, as being the foil of the faid B. C. and put up, &c. in and upon the faid clofes the faid pofts, &c. in that Count mentioned, and kept and continued the fame fo there erected, &c. for the faid fpace of time in the faid laft Count of the faid declaration mentioned, as being upon the clofes, foil, and freehold of the faid B. C. and put up, &c. in and upon the faid clofes the faid quantities of earth, &c. in the faid laft Count mentioned, and kept and continued the fame fo put, &c. there for the said space of time in the faid laft Count of the faid declaration mentioned, as being the clofes, foil, and freehold of the faid B. C. and expelled, &c. the faid plaintiff from the poffeffion, &c. of the faid clofes, and kept and continued the faid plaintiff fo expelled, &c. from the poffeffion and occupation thereof for the faid fpace of time in the faid laft Count of the faid declaration mentioned, as being the clofes, foil, and freehold of the faid B. C. as it was lawful for them to do for the caufe aforefaid, which is the fame breaking, &c. whereof, &c.; and this, &c.; wherefore, &c. if, &c. F. BULLER.

in his fad ciofe

to the brook, and

removed them.

TITLE LESS THAN FREEHOLD.

DECLARATION in trefpafs for entering clofe, and pulling down hedges, &c.

First, general iffue: And for further plea in this behalf as to Plea, that de. fendant, as te the breaking and entering the faid clofe in the faid first Count of nant from year the faid declaration mentioned, and with feet in walking treading to year as tenant down, confuming, and fpoiling the grafs there then growing, and in fee of a clofe with the faid cattle in the faid firft Count of the faid declaration adjoining focus has a prefcrip- mentioned, treading down, trampling upon, depafturing, spoiling, tive privilege of and confuming the faid other grafs there growing, and cutting watering horfes. down, pulling down, breaking down, proftrating, and deftroying &c. de truring the faid hedges and fences in the faid firft Count of the faid declaration mentioned, and the faid wood, ftones, and other materials Turs through . thereof coming in the faid first Count of the faid declaration mencus and of paf tioned, taking and carrying away: And alfo as to the breaking fing with them and entering the faid clofe or parcel of ground in the said laft from his faid Count of the faid declaration mentioned, and with his feet in clofe over locus walking treading down, confuming, and fpoiling the faid grafs fo back; and there growing, and with the faid cattle in the faid last Count of because the way the faid declaration mentioned, treading down, trampling upon, was obtructed depafturing, fpoiling, and confuming the faid other grafs there by the hedges, growing, and cutting down, pulling down, breaking down, proitrating, and deftroying the faid hedges and fences in the faid last Count of the faid declaration mentioned, and the wood, ftones, and other materials thereof coming in the faid laft Count of the faid declaration mentioned taking and carrying away, above fuppofed to have been committed by the faid Thomas, he the faid Thomas, by leave, &c. (alio non); becaufe that the faid clofe in the faid firft Count of the faid declaration mentioned, and the faid close or parcel of ground in the faid lait Count of the faid declaration mentioned, are one and the fame clofe, and not divers other or different, and that the faid hedges and fences, and the wood, ftones, and materials in the faid firft Count of the faid declaration mentioned, and the faid hedges and fences, and the faid wood, ftone, and other materials in the faid laft Count of the faid declaration mentioned, are the fame hedges and fences, wood, ftones, and materials, and that the faid clote in which, &c. now is, and before and at the time of making the indenture of demife hereinafter mentioned, was part and parcel of the faid clofe called Lodge Meadow: And the faid Thomas further fays, that long before any of the faid times when, &c. to wit, on the fecond of February 1771, fir Walter Compton, baronet, deceased, was feifed of C. in the faid clofe called Lodge Meadow, whereof, &c. with the appurtenances, in his demeine as of fee; and being fo feifed thereof, he the faid Walter Compton, long before any of the faid times when, &c. to wit, by a certain indenture made the fame day and year

laft

laft aforesaid, at the parish aforefaid, in the county aforesaid, between the faid fir Walter of the one part, and the faid Thomas of the other part (profert in curia) for the confiderations therein mentioned demifed the faid clofe called Lodge Meadow, whereof, &c. (amongst other things) to the faid Thomas, to have and to hold to the faid Thomas for the term of twenty-eight years from thence next enfuing, and fully to be complete and ended; by virtue of which said demife the laid Thomas, long before any of the faid times when, &c. to wit, on the fame day and year laft aforefaid, entered into the faid clofe called Lodge Meadow, whereof, &c. with the appurtenances, and became and was poffeffed thereof, and remained and continued fo poffeffed until the said John, a little before the faid first time when, &c. claiming title to the faid clofe in which, &c. under colour of a certain charter of demife made by the faid fir Walter to the said John for the term of his natural life, before the making of the faid demife to the faid Thomas, whereas in truth nothing paffed into the poffeffion of the faid John by the faid charter entered into the faid clofe in which, &c. upon whofe poffeffion thereof the faid Thomas, at the said several times when, &c. re-entered, and with his feet in walking trod down, confumed, and spoiled the grafs there then growing, as being the grafs of the faid Thomas growing in his faid clofe fo demifed to him as aforefaid, and with the faid cattle in the faid declaration mentioned trod down, trampled upon, depaftured, fpoiled, and confumed the faid grafs there then growing, as being the grafs of the aforefaid Thomas growing in his aforesaid close; and because the faid John, a little before the faid firt time when, &c. had wrongfully and unlawfully, and without the confent and against the will of the faid Thomas, erected and caufed to be erected the said hedges and fences in the faid declaration mentioned in and upon the faid close in which, &c. and thereby very much incumbered, damaged, and spoiled the fame, he the faid Thomas, at the faid feveral times when, &c. in order to remove the fame, cut down, pulled down, broke down, proftrated, and destroyed the faid hedges and fences there then erected and being, and took and carried the faid wood, ftones, and other materials thereof coming, and removed the fame to a little diftance for the use of the faid John, as it was lawful for him to do for the cause aforefaid, doing as little damage on that occafion as he poffibly could, which are the fame, &c. whereof, &c.; and this, &c.; wherefore, &c. [34Plea, that locus is part of a close called Lodge Meadow, and is the freehold of Robert Berkley, efquire, and defendant juftifies the trefpafs as his fervant, and by his command]: And for further plea in this behalf as to the breaking, &c. by leave, &c. (actio non); because he fays, that the faid clofe in the faid firft Count of the faid declaration mentioned, and the faid close in the said second Count of the faid declaration mentioned, are, and at the said several times when, &c. were one and the fame clofe and not divers or different closes, and the faid hedges and fences, and the faid wood, ftone, and materials in the faid firft Count of the faid declaration

men

mentioned, and the faid hedges and fences, and the faid wood, flone, and materials in the faid laft Count of the faid declaration mentioned, are the fame hedges and fences, ftone, wood, and materials, and not other or different: And the faid Thomas further fays, that long before any of the faid times when, &c. to wit, on the first of January 1786, one Robert Berkley, efquire, was and ftill is feifed in his demefne as of fee of and in a certain close called Lodge Meadow, adjoining to the faid clofe in which, &c. and that he the faid Robert, and all those whofe eftate he the faid Robert now hath, and at the faid feveral times when, &c. had of and in his faid clofe called Lodge Meadow, with the appurtenances, for the time being, 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 still of right ought to have for himself and themselves, his and their farmers and tenants, and occupiers of the faid clofe called Lodge Meadow, with the appurtenances, for the time being, the privilege, benefit, and advantage of watering his and their horfes, mares, geldings, bulls, cows, and fheep kept and depaftured in the faid clofe called Lodge Meadow, at and in a certain brook or rivulet running and flowing into, through, and over the faid clofe in which, &c. and of paffing from the faid clofe called Lodge Meadow with his and their iaid cattle, into, through, and over the faid close in which, &c. to the faid brook or rivulet, and back again from the faid brook or rivulet to the faid clofe called Lodge Meadow, as to the faid close called Lodge Meadow belonging and appertaining: And the faid Thomas further fays, that the faid Robert being fo feifed of the faid clofe, with the appurtenances, as aforefaid, he the faid Robert, long before the faid feveral times when, &c. to wit, on the faid firft of January 1786, at the parifh aforefaid, in the county aforefaid, demifed the fame clofe, with the appurtenances, to the faid Thomas, to have and to hold the fame unto the faid Thomas for and during and unto the full end and term of one year then next enfuing, and fully to be complete and ended, and fo on from year to year for fo long as both parties fhould pleafe; by virtue of which faid demife, the faid Thomas afterwards, to wit, on the fame day and year laft aforefaid, entered into and upon the faid clofe called Lodge Meadow, and became and was, and ftill is poffeffed thereof, and being fo poffeffed thereof; and because the said John, a little before the faid feveral times when, &c. had wrongfully and injuriously erected and placed, and caufed to be erected and placed the faid hedges and fences in the faid declaration mentioned in and upon the faid clofe in which, &c. and thereby blocked and fhut up the paffage from the faid clofe of the faid Thomas called Lodge Meadow to the faid brook or rivulet, whereby the faid Thomas was then and there deprived of the faid privilege, benefit, and advantage of watering his faid cattle by him kept and depaftured in the faid clofe called Lodge Meadow in the said brook or rivulet, to the great nuisance of the faid Thomas; wherefore the faid Thomas, in order to open a convenient and necessary paf

fage

fage or way from his faid clofe called Lodge Meadow to the faid
brook or rivulet for the purpose of watering of his cattle by him
kept and depaftured in the faid clofe called Lodge Meadow, and
in order to abate the faid nuisance at the faid feveral times when,
&c. entered into the faid close in which, &c. and then and there
cut down, pulled down, broke down, proftrated, and destroyed a
little of the faid hedge and fences there then erected and being for
the purpose aforesaid, and took and carried the wood, stones, and
other materials thereof coming, and removed the fame to a little
distance for the ufe of the faid John, and then and there
led and drove his horfes, mares, geldings, bulls, cows, oxen, and
sheep kept and depaftured in his the faid Thomas's close, into,
through, and over the faid clofe in which, &c. for the purpose of
watering the fame in the aforefaid brook or rivulet, and fo back
again from the faid brook or rivulet unto and into the faid close of
the faid Thomas as it was lawful for him to do for the cause afore-
faid, and in fo doing he the faid Thomas neceffarily and unavoid-
ably with his feet in walking a little trod down, confumed, and
fpoiled the grafs then growing there, and the faid horses, mares,
geldings, bulls, cows, oxen, and fheep in paffing and repafling for
the purposes laft aforefaid, neceffarily and unavoidably a little trod
down and trampled upon the faid grafs then growing there, and
the faid horfes, mares, geldings, bulls, cows, oxen, and sheep, in
paffing for the purposes laft aforefaid, by stealth and by morfels, and
without the licence and against the will of the faid Thomas a little
eat up and depaftured the faid other grafs there growing there, and
the faid Thomas neceffarily and unavoidably for the purposes
laft aforefaid cut down, pulled down, broke down, proftrated, and
destroyed a little of the faid hedges and fences there then erected
and being, doing as little damage on that occafion as he poffibly
could, which are the fame, &c.; whereof, &c.; and this, &c.;
wherefore, &c.
FOSTER BOWER.

en), that plain

against

for

not for entering

And the faid John, as to the faid pleas of the faid Thomas by New affignment him fecondly and thirdly above pleaded as to the feveral trefpafles (to commonbar, in the introductory part of those pleas refpectively mentioned, and colour givfaith, that he by reafon of any thing by the faid Thomas in thofe tiff brought his pleas refpectively above alledged (precludi non); because he fays, action that he exhibited his bill, and brought his faid action against the faid defendant Thomas, for that the faid Thomas, at the faid feveral days and entering a close times in the faid declaration mentioned, with force and arnis broke called A. and and entered the faid clofes of the faid John in the faid declaration clofe B. as fupmentioned, being parcel of a certain meadow called New or Dock pofed in the Meadow at the parish of Garway aforefaid, and not any part or plea. parcel of the faid clofes called Lodge Meadow in the faid two laft-mentioned pleas refpectively mentioned, or either of them, but other and different cloles, and at the faid times when, &c. were divided and feparated from the clofe called Lodge Meadow, at the parish of Garway aforefaid, then in the poffeffion of the faid Tho(a) To abate nuifance.

mas