mas by the faid hedges and fences in the faid declaration mentioned, and with his feet in walking trod down, confumed, and spoiled the faid grafs of the faid John then growing there, and with the faid cattle trod down, trampled upon, depattured, spoiled, and confumed the faid other grafs of the faid John then growing there, and cut down, pulled down, broke down, proftrated, and destroyed the faid hedges and fences of the faid John therein erected, standing, and being in his faid closes herein above newly affigned, and the faid wood, ftones, and other materials thereof coming took and carried away, and converted and difpofed of the fame to his own ufe, in manner and form as the faid John hath above thereof complained against him; and this, &c.; wherefore inasmuch as the faid Thomas hath not made any answer to the faid trespasses herein above newly affigned, the faid John prays judgment and his damages by reafon of the committing of thofe trespasses to be adjudged to him, &c. Replication to laft plea in bar, de injuria fua, &c.; and traverse of the prescription of the liberty of watering cattle, &c. New affignment to laft plea, that defendant committed the trefpaffes on other occafions, and for other purposes than thofe mentioned in the laft plea, &c. &c. A. CHAMBRE. To new affignments not guilty; and iffue on the traverse in the replication to laft plea. RIGHT OF COMMON. SANDERSON against · DECLARATION for feizing, taking, and carrying Plea, that A. B. common, REAY AND ANOTHER. Jaway flacks, flags, and turfs. First, General iffue: And for further plea in this behalf as to is feifed of a the feizing, taking, and carrying away the faid flacks, flags, and and turfs in the faid declaration first mentioned, and bruifing, conbecaufe the turfs fuming, and deftroying other the flacks, flags, and turfs in the faid had been wrong- declaration laft-mentioned above fuppofed to have been done by fully dug, defendant, as fer the faid defendants, by leave, &c. (actio non); because they fay, vant of A. B. that W. F. efquire, was and still is feifed in his demefne as of fee feized them. of and in a certain large common in the parish of H. in the faid county, and being fo thereof feifed, becaufe the faid flacks, flags, and turfs in the faid declaration mentioned, at the faid feveral times when, &c. were upon the faid common or wafte, and had been wrongfully and injuriously dug and greaved by the faid plaintiff in and from the faid common or waste a little before the faid times when, &c. the faid defendants, as fervants of the faid W. F. and by his command at the faid feveral times when, &c. did seize, take, and carry away part of the faid flacks, Rags, and turfs, as it was lawful for them to do for the cause aforefaid, which are the fame, &c.; and this, &c.; wherefore, &c. GEORGE WOOD. down the grafs, that the locus in tain their demefne as First Plea, General iffue: And for a further plea in this behalf Plea (to declaraas to the breaking and entering the faid clofe of the faid George tion in trefpafs called the New Inclofure, in which, &c. and treading down, con- for breaking fuming, and spoiling the grafs there growing with their feet in clofe, treading walking, and eating up, depafturing, treading down, confuming, with horfes eatand spoiling other the grafs and corn there alfo growing with the ing up, &c. and faid cattle in the faid declaration mentioned, and breaking down, breaking down pulling down, throwing down, proftrating, and deftroying the the gates, &c.) faid gates, ftiles, walls, hedges, fences, pales, pofts, and rails in quo, before the the faid declaration mentioned, ftanding, growing, and being in wrongful inclothe faid close in which, &c. by the faid defendants above fuppof- fure thereof, was ed to have been done, they the faid defendants, by leave of, &c. parcel of a cer(actio non); because they fay, that the faid clofe in which, &c. common, parcel of the mafrom time whereof the memory of man is not to the contrary, un- nor of A. of til the wrongful inclosure thereof hereinafter mentioned, was part which faidmanor and parcel of a certain waste or common called, &c. lying and be- F. W. and J. B. ing within, and parcel of the manor of L. in the faid county of were feifed in York §, of which faid manor, with the appurtenances, one of fee, and beF. W. and the reverend J. B. long before the faid firft time when, caufe certainper&c. and also at the said several times when, &c. were and ftill fons to defendare seised in their demefne as of fee; and the faid F. W. and ants unknown J. B. being fo feised thereof, because certain perfons to the faid defendants unknown had before the faid firft time when, &c. in quo, and there wrongfully and injurioufly erected and caufed to be erected the faid feparated gates, ftiles, walls, hedges, fences, pales, pofts, and rails in and hut up locus in upon the faid clofe (1) in which, &c. fo being part or parcel of quo from the rethe faid waste or common as aforefaid, and thereby feparated and divided, inclosed, and fhut up the faid clofe (2) in which, &c. caufe the plainfrom the refidue of the faid wafte or common; and the faid tiffs kept up George, at the faid feveral times when, &c. wrongfully and in- fame,the defendjuriously kept and continued the faid gates, ftiles, walls, hedges, fervants of F.W. fences, pales, pofts, and rails fo there erected, standing, and be- and J. B. and by ing in and upon the faid clofe (3) in which, &c. parcel of the faid their command waste or common as aforefaid fo feparating, dividing, inclofing, into locus in que, and fhutting up the faid close (4) in which, &c. parcel, &c. from and trod down, the refidue of the faid waste or common, the faid defendants clofe of F. W. Sec. as being the as the fervants of the faid F. W. and J. B. and by their com- and J. B. mand at the said several times when, &c. broke and entered into (1) In 2d Pleato the faid close in which, &c. parcel, &c. as into the clofe and foil new affignment of the faid F. W. and J. B. and trod down, confumed, and fpoiled the grass and corn there then growing, with their feet in walk had erected the gates upon locus and fidue of the faid common,and be ants entered as infert here "a bove newly af- new affignment as above. (3) In 2d Pica to new affignment as above, &c. (4) In 2d plea to new affignment as above, &c. 3d Plea ing, as the grafs and corn of the faid F.W. and J. B. then grow ing in their close and foil, and eat up, depaftured, trod down, con fumed, and spoiled the faid other grafs and corn there then alfo growing, with the faid cattle in the faid declaration mentioned, fo being the grafs and corn of the faid F. W. and J. B. then growing in their faid clofe and foil, and broke down, pulled down, proftrated, and destroyed the faid gates, ftiles, walls, hedges, fences, pales, pofts, and rails in the faid declaration mentioned, standing, growing, and being in the faid clofe in which, &c. parcel, &c. as being wrongfully and injurioufly erected, ftanding, and being in the faid close and foil of the faid F. W. and J. B. as it was lawful for them to do for the caufe aforefaid; and this they are ready to verify; wherefore they pray judgment if the faid George ought to have or maintain his aforefaid action thereof against them: And for further plea in this behalf as to the breaking and entering [Same as in fecond plea from 1 to 1: And the faid defendants further fay, that the reverend fir William Lowther, baronet, long before the faid first time when, &c. and alfo at the feveral times when, &c. was and still is feifed of and in a certain meffuage and (5) In 4th Plea divers (5), to wit, thirty acres of land, with the appurtenances, infert "other" fituate, lying, and being at Leacroft aforefaid, in the parish of Whithirk, in the county aforefaid, in his demefne as of fee, and that the faid fir William, and all those whose eftate he now hath, (6) In 4th Plea and at the faid feveral (6) times when, &c. had of and in the said mefluage and land, with the appurtenances, from time whereof the memcry of man is not to the contrary, have had and have been ufed and accustomed to have, and during all the time aforesaid of right ought to have had, and ftill of right ought to have (7) comtioned'' men of pafture in and upon and throughout the faid (8) waste or (8) laft-mencommon called Leacroft, otherwife Whinmon, in which, &c. for all his and their commonable cattle levant and couchant in and "laft-mention ed" (7) "laft-men ticned" tioned" (11) "laft mentioned" mentioned" (13) (9) "laft men- upon the faid (9) meffuage and (10) land with the appurtenances, (10) In 4th Plea, every year at all times of the year at his and their free will and add "the faid" pleasure, as to the faid meffuage and (11) land, with the appurteand fo in the fe- nances belonging and appertaining; and the faid fir William becond pica to new ing fo feifed thereof afterwards and before the faid first time when, affignment peit. &c. to wit, on the first of January 1782, demifed the faid meffuage and (12) land, with the appurtenances, unto one Elizabeth (12) laft Jordan, widow, to have and to hold the fame (13) land, with the uppurtenances, unto the faid Elizabeth Jordan, from the second laft. day of February then next, and the faid nieffuage, with the appur(14) In 4th Plea, tenances, from the first day of May (14) alfo then next following for the term of one year from thence next enfuing, and fo from fay "A.D. 1782. year to year for fo long time as the faid fir William and Elizabeth Jordan fhould pleafe; by virtue of which faid demife the faid Elizabeth Jordan afterwards, and before the faid firft time when, &c. to wit, on the fecond day of May, in the year of Our Lord 1782, entered into the faid meffuage and (15) land, with the appurte nances, and became and was, and ftill is thereof poffeffed; and the faid Elizabeth Jordan being fo poffefled thereof [Same as in fecond mentioned" inflead of Italic, (15) "laftmentioned" plea from to], infomuch that the faid Elizabeth Jordan, with out breaking down, throwing down, pulling down, proftrating, and deftroying the faid gates, ftiles, walls, hedges, fences, pales, pofts, and rails, and opening the faid inclofure, could not at those feveral times when, &c. put their commonable cattle levant and couchant in and upon the faid mefluage and (16) land, with the (16) "laftappurtenances, into the faid clofe in which, &c. parcel, &c. to mentioned" feed on the grafs there then growing, and to ufe and enjoy her faid common of pasture there in fo ample and beneficial a manner as the then and there ought to have ufed and enjoyed the fame, the faid Francis, J. H. and J. J. as the fervants of the faid Elizabeth Jordan, and by her command at the said several times when, &c. entered into the faid (17) close in which, &c. in order to break (17) " lastdown, throw down, pull down, proftrate, and deftroy, and did mentioned" then and there break down, throw down, pull down, proftrate, and deftroy the faid gates, ftiles, hedges, fences, pales, pofts, and rails then erected, ftanding, and being in the faid clefe in which, &c. parcel, &c. in order to open the faid inclofure, and did thereby then and there open the faid inclofure, and did alfo then and there put into the faid clofe in which, &c. parcel, &c. the faid cattle in the faid declaration mentioned, the fame being the cattle of the faid Elizabeth Jordan levant and couchant in the faid meffuage and land, with the appurtenances, to feed on the grafs there then growing, and to ufe the faid common of pafture there, and in fo doing neceffarily and unavoidably a little trod down, confumed, and fpoiled the grafs and corn there then growing, with their feet in walking, and with the faid cattle eat up, depaftured, trod down, confumed and fpoiled a little other of the grafs and corn there then alfo growing, as it was lawful for them to do for the caufe aforefaid, doing as little damage as they poffibly could on that occafion, which are the fame breaking and entering the clofe called the New Inclofure in which, &c. and treading down, confuming, and fpoiling the grafs and corn there then growing with their feet in walking, and eating up, depafturing, treading down, confuming, and fpoiling the other grafs and corn there allo growing with the faid cattle in the faid declaration mentioned, and breaking down, throwing down, pulling down, proftrating, and deftroying the faid gates, ftiles, walls, hedges, fences, pales, polts, and rails in the faid declaration mentioned, standing, growing, and being in the faid clofe in which, &c. whereof the faid George hath above complained against the faid J. H. Francis, and J. J.; and this, &c.; wherefore, &c.: And for a further plea in this behalf, [Same as third plea, obferving what is in the margin, and omitting what is in Italic.] W. LAMBE. ral iffue. Replication to And as to the faid plea of the faid J. H. Francis, and J. J. Replication, fiby them first above pleaded, and whereof they have put themfelves militer to geneupon the country, the faid George doth fo likewife: And as to the faid plea of the faid J. H. Francis, and J. J. by them fecondly 2d Plea, de injuabove pleaded in bar, as to breaking and entering the clofe of the via, and traverfes faid G. called the New Inclofure in which, &c. and breaking locas in quo, being down, confuming, and fpoiling the grafs and corn there growing parserorizma with nor of L. with their feet in walking, and eating up, depafturing, treading down, confuming, and fpoiling other the grafs and corn there alfo growing with the faid cattle in the faid declaration mentioned, and breaking down, throwing down, pulling down, proftrating, and deftroying the faid gates, ftiles, walls, hedges, fences, posts, pales, and rails in the faid declaration mentioned ftanding, growing, and being in the faid clofe in which, &c. by the faid J. H. Francis, and J. J. above done, the faid George faith, that he by reafon of any thing by the faid J. H. Francis, and J. J. in that plea above alledged (precludi non); because he faith, that the faid J. H. Francis, and J.J. at the faid feveral times when, &c. of their own wrong broke and entered the faid clofe of the said George called the New Inclofure in which, &c. and trod down, confumed, and spoiled the faid grafs and corn there then growing with their feet in walking, and eat up, depaftured, trod down, confumed, and fpoiled the faid other grafs and corn there then alfo growing with the faid cattle in the faid declaration mentioned, and broke down, threw down, pulled down, proftrated, and destroyed the faid gates, ftiles, walls, hedges, fences, pales, pofts, and rails in the faid declaration mentioned, then ftanding, growing, and being in the faid close in which, &c. is, or at the faid time when, &c. was parcel of the manor of Leacroft, in the faid county of York, in manner and form as the faid J. H. Francis, and J. J. have in their faid fecond plea above alledged; and this, &c.; wherefore inafmuch as the faid J. H. Francis, and J. J. have above acknowledged the committing of the faid trefpaffes, the faid George prays judgment and his damages, by him sustained on occafion of the committing thereof, to be adjudged to him, &c. : And as to the faid feveral pleas of the faid J. H. Francis, and J. J. Replication to the third and last by them thirdly and laftly above pleaded in bar as to the faid feveral pleas. New af. meffuages in the introduction to the faid third and laft pleas of the fignment, that faid J. H. Francis, and J. J. refpectively mentioned, faith, that Locus in quo is an- he ought not by reafon of any thing in the fame pleas, or either of other and diffe- them, above alledged (precludi non); because he faith, that the faid the clofe men- clofe and place in which, &c. is, and on the faid feveral times tioned in defen- when, &c. was a certain close called the New Inclosure, situate, dant's plea; and lying, and being in and part of the parish of Barwick, in Elmet not parcel of the aforefaid, then and not being within and parcel of the faid manor of Traverfe. rent clofe from manor. Leacroft, in the faid third and laft pleas mentioned, and is and at the And |