erected

upon locus.

fences

upon, or throughout the fame wafte or common called Weeled Common, otherwife Harrow Weeled Common, whereof the faid clofe in which, &c. at the faid time when, &c. was, and from time whereof, &c. hath been, and is part and parcel for all his and their commonable cattle levant and couchant in and upon the faid land of the faid R. with the appurtenances, in each and every year at all times of the year at his and their free will and pleasure, as to the fame land, with the appurtenances, belonging and appertaining; and the faid R. being fo feifed of the faid land, with the apBecause plaintiff purtenances,becaufe the faid James, before the faid time when, &c. had wrongfully had wrongfully and injuriously made and erected, and caused and procured to be made and erected the faid mounds, fences, and pales in the faid declaration mentioned in and upon the faid clofe in which, &c. fo being part and parcel of the faid waste or common as aforefaid, and had thereby furrounded, fenced, inclosed, and fhut up the faid clofe in which, &c. parcel, &c. from the faid common or waste whereof, &c. and which faid mounds, fences, and pales at the faid time when, &c. wrongfully and injuriously were, and continued fo there erected, ftanding, and being in and upon the faid clofe in which, &c. parcel, &c. and fo mounding fencing, inclofing, and fhutting up the faid clofe in which, &c. parcel, &c. from the faid waste or common whereof, &c. infomuch that the faid Richard, without pulling down, throwing down, proftrating, breaking to pieces, and deftroying the faid mounds, fences, and pales, and opening the faid inclosure, could not at the faid time when, &c. put his commonable cattle levant and couchant in and upon the faid lands of him the faid R. with the appurtenances, into the faid clofe in which, &c. fo being parcel of the faid waste or common aforefaid, to feed and depasture on the grafs there then growing, and ufe his faid common of pafture there, nor could use or enjoy his faid common of pafture therein in fo ample and beneficial a manner as he then and there Defendant en- of right ought to have had, used, and enjoyed the fame, he the tered and re- faid R. in his own right, at the faid time when, &c. entered the moved nuifance. faid clofe in which, &c. parcel, &c. to pull down, throw down,

proftrate, break to pieces, and deftroy the faid mounds, fences, and pales in the faid declaration mentioned, then erected, ftanding, and being in and upon the faid clofe in which, &c. in the faid declaration mentioned, in order to open the faid inclosure, as it was neceffary for him fo to do for that purpose, and as he lawfully might for the caufe aforefaid, and did then and there, upon the occafion, pull down, throw down, proftrate, break to pieces, and deftroy the faid mounds, fences, and pales, and did then and there open the faid inclosure for the purpose aforefaid, and did then and there drive and put the faid cattle in the faid declaration mentioned, the fame being the commonable cattle of him the faid R. and levant and couchant in and upon the faid lands of the said R. with the appurtenances, into the clofe in which, &c. parcel, &c. to feed and depailure upon the faid grafs there then growing, and to ufe his faid common of pasture there, as he lawfully might for

the

locus

part of

waite called H.

within

manor of

200 acres of

the cause aforefaid, and in fo doing he the faid R. neceffarily and unavoidably pulled down, threw down, proftrated, and broke to pieces and deftroyed the faid mounds, fences, and pales in the faid declaration mentioned, and with his feet in walking trod down, fpoiled, and confumed the grafs there then growing in the faid clofe in which, &c. parcel, &c. which is the fame trefpafs in the introduction to this plea mentioned, whereof the faid James hath above complained against the faid R.; and this, &c.; wherefore, &c. And for further plea in this behalf as to the breaking and 3d Plea, entering, &c. [As before in the 2d plea] above fuppofed to have been done by the faid R. he the faid R. by like leave, &c. fays W. Common, that the faid James (actio non); because he fays, that the faid fituate clofe in which, &c. in the faid declaration mentioned is, and at the the faid time when, &c. was, and from time whereof, &c. hath Harrow. been part and parcel of a certain waste or common called Weeled Common, otherwife Harrow Weeled Common, being the fame wafte in the faid declaration mentioned, fituate and being within the faid manor of Harrow, otherwife Sudbury, in the faid county of Middlesex, and that as well the faid wafte or common whereof, &c. as divers, to wit, five meffuages and two hundred acres of And that as well land, with the appurtenances, now are, and at the faid time when, faid waste as g &c. fo were, and from time whereof, &c. have been fituate and meffuages and lying within, and part and parcel of the faid manor of Harrow, land are fituate otherwife Sudbury, in the faid county, and that the faid meffuages within, &c. parand lands laft-mentioned now are, ane during all the time afore- cel of the manor. faid have been customary tenements of the faid manor, and demif- Said messuages ed and demiseable by copy of the court roll of the faid manor, by and land are cufthe lord of the faid manor or by his fteward of the court of the faid tomary manor for the time being, by the rod to any perfons or perfon mifeable, &c. willing to take the fame in fee fimple at the will of the lord, according to the cuftom of the faid manor, and that long before the faid Sir J. Rufhout, time when, &c. to wit, on the third day of May 1772, and long bart. feised of before, one fir John Rufhout, baronet, was feifed of the faid the manor in his manor of H. other wife S. with the appurtenances, whereof, &c. fee. in his demefne as of fee; and being fo feised thereof he the said fir J. R. afterwards. and long before the faid time when, &c. to wit, at a court baron of him the faid fir J. R. then holden in and for Grant from the the faid manor, on the faid third day of May 1772, before Elifha lord to the deBifcoe, efquire, then his fteward of the courts of the faid manor, fendant of said by copy of the court rolls of the faid manor, and by the rod meffuages and did grant the faid meffuages and lands last-mentioned, with the appurtenances, parcel, &c. unto the faid Richard, to hold the fame unto the faid Richard, his heirs and affigns, at the will of the lord, according to the cuftom of the faid manor; by Defendant envirtue of which faid grant he the faid R. afterwards, and long tered. before the faid time when, &c. to wit, on the fame day and year laft aforesaid, entered into the faid meffuages and land laft-mentioned, with the appurtenances, parcel, &c. and because, &c. and was, and continually from thenceforth hitherto hath been, and ftill is feifed thereof in his demefne as of fee at the will of the lord, according

04

tene

ments, and de

demefne as of

land.

Custom within according to the custom of the said manor: * And the said R. furthe manor for all ther fays, that within the faid manor whereof, &c. there now is, and from time whereof, &c. there hath been a certain ancient and

tenants of faid

ments to have

customary tene- laudable custom there ufed and approved of, that is to say, that common of paf- every customary tenant of the faid cuftomary tenements, with the ture over faid appurtenances, parcel, &c. for the time being, from time wherewafte whereof, of, &c. until the time of the inclofure hereinafter mentioned, have

&C.

And

&c.

4th Plea.

had and ufed, and been accustomed to have and ufe, and of right during all the time aforefaid hitherto ought to have had and used, and ftill of right ought to have and use for himself and themselves, his and their farmers and tenants, occupiers of the fame customary tenements, with the appurtenances, parcel, &c. common of pas ture in, upon, and throughout the faid waste or common called Weeled Common, otherwife Harrow Weeled Common, whereof, &c. for all his and their commonable cattle levant and couchant in and upon the faid meffuages laft-mentioned, with the appurtenances, parcel, &c. in each and every year at all times of the year at his and their free will and pleasure, as to the said mesfuages and lands laft-mentioned, with the appurtenances, parcel, becaufe, &c. belonging and appertaining; and the faid R. being fo feifed of the faid m fluages and lands laft-mentioned with the appurtenances, parcel, &c. because [Same as in the fecond plea to the end, omitting the words in Italic, and inferting in their stead the words "meffuages and lands laft-mentioned, with the appurtenances, parcel, &c."]: And for further plea in this behalf as to the breaking and entering the faid clofe of the faid James in the faid declaration mentioned, and pulling down, throwing down, proftrating, breaking to pieces, and deftroying the faid mounds, fences, and pales, to wit, four yards of the faid mounds, four yards of the faid fences, and four yards of the faid pales, part of the faid mounds, fences, and pales of the faid James in the faid declaration mentioned, and with his feet in walking [As before in fecond plea], above fuppofed to have been done by the faid R. he the faid R. by like leave, &c. fays, that the said James (actio non) ; Locus as before, because he says, that the faid clofe in which, &c. in the faid declaration mentioned is, and at the faid time when, &c. was, and from time whereof, &c. hath been part and parcel of a certain waste or common called Weeled Common, otherwife Harrow Weeled Common, being the said waste in the faid declaration mentioned, fituate and being in the fame manor of Harrow, otherwise SudDefendant feifed bury, in the faid county of Middlefex, and that the faid R. long of to meffuages before and at the faid time when, &c. and continually from thenceand 1000 acres forth hitherto hath been and ftill is feifed in his demefne as of fee of

of land.

and in divers, to wit, ten meffuages and one thousand acres of land, with the appurtenances, fituate and being within the faid manor of Harrow, otherwife Sudbury, in the faid county of MidPrefeription to dlefex; and that the faid R. and all those whofe eftates he the faid R. dig fand and gravel in said waste whereof, &c. for repairing the walks in the gardens, &c. of faid meffaages, and repairing the ways upon said last-mentioned land.

now

now hath, and at the faid time when, &c. had of and in the faid laft-mentioned meffuages and lands, with the appurtenances, from time whefeof, &c. until the time of the inclosure hereinafter mentioned, have dug and taken, and have ufed and been accuftomed to dig and take, and during all the time aforesaid hitherto ought to have dug and taken, and ftill of right ought to dig and take, for himself and themselves, his and their tenants, occupiers of the faid laft-mentioned meffuages and land with the appurtenances, fand and gravel in, upon, and throughout the faid waste or common whereof, &c. for the neceffary repairing and amending of the ways, paths, and walks of and in the gardens, orchards, and yards of and belonging to the faid laft-mentioned meffuages, with the appurtenances, and the neceflary repairing and amending of the ways in, upon and belonging, and appertaining to the faid laftmentioned land, with the appurtenances, every year at all times of the year as often as need or occafion hath required, as to the faid meffuages and lands laft-mentioned, with the appurtenances belonging and appertaining: § And the faid R. further fays, that the Walks and ways faid R. being fo leised of and in the faid meffuages and land laft. out of repair. mentioned, with the appurtenances, before and at the faid time when, &c. certain ways, paths, and walks of and in certain gardens, orchards, and yards of and belonging to the faid laft-mentioned meffuages, with the appurtenances, were in decay and out of repair for want of neceffary and needful repairing and amending of the fame, and certain ways in, upon and belonging, and appertaining to the faid laft-mentioned lands were foundrous, impaffable, and out of repair for the want of repairing and amending of the fame: And the faid R, further fays, that the faid James be- And fore the faid time when, &c. had wrongfully and injuriously made plaintiff and erected, and caufed and procured to be made and erected the wrongfully erected fences, &c. faid mounds, fences, and pales in the faid declaration mentioned in and upon the faid clofe in which, &c. fo being part and parcel of the faid waste or common as aforesaid, and had thereby mounded, fenced, inclofed, and fhut up the faid clofe in which, &c. parcel, &c. from the faid common or wafte whereof, &c. and which faid mounds, fences, and pales were and continued fo there erected, ftanding, and being in and upon the faid clofe in which, &c. parcel, &c. and fo mounding, fencing, and inclofing, and fhutting up the faid close in which, &c. parcel, &c. from the faid waste or common, whereof, &c. infomuch that the faid R. without pulling down, throwing down, proftrating, breaking to pieces, and destroying part of the faid mounds, fences, and pales, and opening the faid inclosure, could not at the faid time when, &c. enter into and upon the faid close in which, &c. for the purpose of digging, taking, leading, and carrying away fand and gravel, then being in and upon the faid clofe in which, &c. parcel, &c. for the repairing and amending the faid ways, paths, and walks fo in decay, found drous, impaffable, and out of repair as aforefaid, nor could the faid R. ufe and enjoy his faid liberty and privilege of digging and taking fand and gravel as aforefaid in fo ample and beneficial a

manner

becaufa

had

manner as he then and there of right ought to have had, used, and Defendant juf- enjoyed the fame; wherefore he the faid R. in his own right, at tifies pulling the faid time when, &c. entered into the faid close in which, &c.

them down.

to pull down, throw down, proftrate, break to pieces, and deftroy a part of the faid mounds, fences, and pales in the faid declaration mentioned, then erected, ftanding, and being in and upon the said clofe in which, &c. in the faid declaration mentioned, parcel, &c. in order to open the faid inclofure and there dig for, take, and carry away fand and gravel for the purposes aforefaid; and to admit and have ingrefs, regrefs, and egrefs for carts, waggons, and other carriages in the faid declaration mentioned, and the faid horfes, mares, and geldings in the faid declaration mentioned, then and there harneffed to the faid carts, waggons, and other carriages of him the faid R. in the faid declaration mentioned, and drawing the fame as it was neceffary for him to do for the caufe aforefaid, and did then and there upon that occafion pull down, throw down, proftrate, break to pieces, and destroy two yards of the mounds, four yards of the fences, and four yards of the pales And took fand of the faid inclofure, did then and there open the faid clofe in and gravel, &c. which, &c. parcel, &c. for the purpofes laft aforefaid, and did then and there dig for and take a reafonable quantity of fand and gravel, then being in and upon the faid clofe in which, &c. parcel, &c. for the purposes laft aforefaid, and with the faid carts, waggons, and other carriages, and with the faid horfes, mares, and geldings thereto harneffed, and drawing the fame in the faid declaration mentioned, did then and there take, load, and carry away the fame quantity of fand and gravel from and out of the faid clofe in which &c. unto the faid meffuages and lands laft-mentioned of him the faid R. for the purpose last aforefaid, and then and there ufed and applied the faid fand and gravel fo dug, and taken, and led, and carried away as aforefaid, in and about the neceffary repairing and amending of the faid ways, paths, and walks, being fo in decay, foundrous, impaflable, and out of repair as aforefaid, as it was lawful for him the faitR. to do for the caufe aforefaid; and in fo doing the faid R. neceffarily and unavoidably a little pulled down, threw down, proftrated, broke to pieces, and deftroyed the faid part of the faid mounds, fences, and pales in the faid declaration mentioned, and with his feet in walking, and with the faid cattle in the faid declaration mentioned, a little trod down, spoiled, and confumed a little of the grafs there then growing on the faid clofe in which, &c. parcel, &c. and the faid cattle in the faid declaration mentioned, in paffing and repaffing in and along the faid clofe in which, &c. parcel, &c for the purpofe aforefaid, did snatch and eat up a little of the grafs there then growing by stealth and morfels, and against the will of the faid R. and with the wheels of the faid carts, waggons, and other carriages of the faid R. did then and there fubvert, turn up, and spoil a little of the foil in the faid clofe in which, &c. parcel, &c. doing as little damage on that occafion as he poffibly could, which is the fame trefpafs in the introduction to this plea mentioned, whereof the faid James hath