as before.

above thereof complained against him; and this, &c. ; wherefore, &c. And for further plea in this behalf as to the breaking and en 5th plea, Locus, tering [as above in 4th plea], above fuppofed to have been done by the faid R. the faid R. by like leave, &c. fays, that the faid James (actio non); because he fays 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 W. Common, otherwife H. W. Common, being the fame wafte in the faid declaration mentioned, fituate and being within the fame manor of H. otherwife S. in the

grant thereof to

to

faid county of Middlefex, and that as well as the faid common or And as well the wafte whereof, &c. as divers, to wit, five other meffuages and two common as faid hundred acres of land, with the appurtenances, now are, and at the parcel of the manor, and faid time when, &c. were, and from time whereof, &c. have been fituate, lying, and being within and part and parcel of the faid defendant. manor of H. otherwife S. in the faid county [Same as in third plea from this mark | to this*]: And the faid R. further fays, that Custom, within within the faid manor whereof, &c. there now is, and from time the manor whereof, &c. there hath been a certain ancient and laudable custom dig fand and there used and approved of, that is to fay, that every cuftomary gravel, &c. tenant of the faid cuftomary tenements iaft mentioned, with the appurtenances, parcel, &c. for the time being, from time whereof, &c. until the time of the inclosure hereinafter mentioned, have dug, and taken, and used, and been accustomed to dig and take, and during all the time aforefaid thereto of right ought to have dug and taken, and ftill of right ought to dig and take for himself and themfelves, his and their farmers and tenants, occupiers of the said laftmentioned meffuages and land, with the appurtenances, parcel, &c. fand and gravel in, upon, and throughout the faid waste or common, parcel, &c. whereof, &c. for the neceflary 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, parcel, &c. and for the neceffary repairing and amending in and upon, and belonging and appertaining to the faid laft-mentioned lands with the appurtenances, parcel, &c. every year, at all times of the year, or as occafion hath required, as to the faid meffuages and land laft mentioned with the appurtenances belonging and appertaining, [Same as in fourth plea from 6 to the end]: And for further, &c. by Daniel Dancer, who Like pleasby the juftifies in right of ten acres of land of which he is feifed in fee for other defendant common of pasture, [The fame as fecond plea by defendant Page]: And for further, &c. by defendant Dancer, who juftifies in right of copyhold eftate for common of pasture, [Same as third plea of defendant Page]: And for further, &c. by defendant Dancer, who juftifies in right of ten acres of land whereof he is feifed in fee for a right to dig and take fand and gravel, [Same as fourth plea by defendant Page]: And for further, &c. by defendant Dancer, who juftines in right of copyhold land for a right to dig and take fand and gravel, [As in fifth plea by defendant Page]: And for further 10th Piea, hy plea in this behalf, as to the breaking and entering, [Same as in right of common Page, Rating a third as in ad plea.

Daniel Dancer.

homage of the

court baron;

and hath defired (first obtaining

tenant,

Custom within third plea from § to t]: And the faid Richard further fays, that the manor that within the faid manor whereof, &c. there now is, and from time if any perfon whereof, &c. there hath been a certain ancient and laudable cufhas been defirto inclofe tom there ufed and approved of, that is to fay, if any person or any part of the perfons during all the time aforefaid have or hath been defirous to waftes of the improve or inclofe any part of the waste of the faid manor of H. manor, he hath otherwife S. with the appurtenances, whereof such person or perrepaired to the fons fo defirous to improve and inclofe as aforefaid, during all the time aforefaid, have or hath repaired to the homage of the court baron of the faid manor, at a general court of the fame court baron, holden in and for the faid manor according to the custom of the faid manor from time immemorial used and approved of within the faid manor, and fuch perfon or perfons have or hath, during all the time aforefaid, at fuch general court defired that fuch his, her, or their defire to improve or inclofe any part of the waftes of the faid manor, firft obtaining the confent and licer.ce of the lord's li. the lord of the faid manor whereof, &c. for the time being, so to cence) that his improve or inclofe, might be prefented by the homage of the defire might be faid court baron of the faid manor at fuch general court holden in prefented; and and for the faid manor, and that if the faid homage of the court if the homage baron of the faid manor, at fuch general court fo holden as aforethought it no prejudice to any faid, have during all the time aforefaid thought in their confcience that the faid intended inclosure was of no prejudiee to any tenant or tenants of the faid manor, and that the fame in right be granted, that then the said homage of the faid court baron of the faid manor, at fuch general court fo holden as aforefaid, have during all the time aforefaid prefented, and have ufed and been accuftomufed to prefent, ed to prefent, and of right, during all the time aforefaid, ought that fuch perfon to have prefented, and ftill of right ought to prefent at the faid might inclofe, general court fo holden as aforefaid, that fuch perfon or perfons fo defiring the faid inclosure (firft obtaining the leave and licence of the lord of the faid manor for the time being), might and may inclose the fame; and after making fuch prefentment as aforesaid, the faid prefentment fo made hath been publicly read at fuch general court fo holden as aforefaid, and if no tenant or tenants then and there prefent at fuch general court fo holden as aforesaid have or hath, upon the reading of the faid prefentment, forbid the inclofing of the faid part of the faid wafte fo intended to be inclosed as aforefaid, that then the steward for the time being of the said court baron of the faid manor, at fuch general court fo holden as aforefaid, hath fet a fine and rent, and hath been used and been accustomed to fet a fine and rent upon fuch perfon or perfons fo defiring to inclose the faid part of the faid waste as aforefaid, for and in refpect of the faid part of the faid waste fo intended to be inclofed as aforefaid, and hath, during the time aforefaid, granted and hath ufed, and been accustomed to grant the fame part of the walte fo intended to be inclofed as aforefaid to fuch person or perfons fo defiring the fame to be inclofed as aforefaid, to no other perfon by a coppice, according to the cuftom of the faid manor; and it hath not been lawful, for and during all the time aforesaid,

they have been

&c.

Fine fet.

for

No prefentment

has ever been

for any tenant or tenants of the faid manor for any time after to forbid or otherwife hinder the faid inclofure fo intended to be made, and made in purfuance of the cuftom as aforefaid, or otherwife to difturb the faid perfon or perfons, or his or their heirs or affigns, or his or their tenant or tenants thereof, in the quiet enjoying of the faid waste ground fo inclofed as aforefaid in pursuance of fuch custom as aforefaid: And the faid R. further fays, that the faid Locus part of the clofe in which, &c. now is, and from time whereof, &c. hath waste. been part and parcel of the waftes of the faid manor, and the homage of the faid court baron of the faid manor, at such general court so holden as aforefaid according to the custom of the said manor, have not as yet presented at fuch general court fo holden as aforefaid, or any other court heretofore holden in and for the faid manor, that any perfon or perfons whomfoever defiring to made, &c. inclose the said clofe in which, &c. being part and parcel of the faid waste of the said manor, might inclofe the fame: And the faid R. further fays, that he the said R. being so seised of the said mesfuages and land laft-mentioned, with the appurtenances, parcel, &c.; because, [Same as in fecond plea from to the end]: And for further, &c. by defendant Page, who juftifies as a copyholder for a right to dig fand and gravel for the repairs of ways, &c. [As before in fifth plea to ] and then ftating the custom, that no tenant or other person should inclofe without the consent of the lord the homage of the court haron of the manor, [As in tenth plea from to ; and then the conclufion as in fourth plea from § to the end]: And for further, &c. by Dancer, who juf tifies as a copyholder for common of pafture, and ftating the cuf tom that no tenant or person should inclofe, &c. [As in tenth plea by Page]: And for further, &c. [Same by Dancer as eleventh plea by Page]. THOMAS WALKER.

And the faid James, as to the faid plea of the faid R. and D. Replication to by them first above pleaded, and whereof they have above put ad plea. themselves upon the country, &c. doth fo likewife: And the faid James as to the faid plea of the faid Richard, by him fecondly above pleaded in bar, as to the breaking and entering the faid clofe of the faid James in the faid declaration mentioned, in which, &c. pulling down, throwing down, proftrating, breaking to pieces, and deftroying the mounds, fences, and pales of the faid J. in the faid declaration mentioned, and with feet in walking treading down, fpoiling, and confuming the faid grafs of the faid James there then growing, and with the faid cattle in the faid declaration mentioned, eating up, treading down, fpoiling, and confuming other the grafs of the faid J. there then growing in the faid declaration mentioned, above alledged to have been done by the faid Richard, faith, that he by reafon of any thing by the faid R. above in that plea alledged (precludi non); because he faith, that That locus was the faid close in which, &c. at the faid time when, &c. was four- 14 acres of land, teen acres of land, inclosed in manner and form hereinafter mentioned from the faid waste or common called Weeled Common, ed.

otherwife

inclofed as hereinafter mention

other.

common over them as over the

other.

Admits

ture.

the

otherwife H. W. Common, lying and being within the manor of Other waftes H. otherwife S. in the faid county of Middlefex, within which within the ma- faid manor of H. otherwife S. there now are, and at the said time nor contiguous the one to the when, &c. were, and from time whereof, &c. have been divers other waftes or commons lying contiguous the one to the other and parcel of the fame manor, with the appurtenances, containDefendant has ing together with the faid W. Common, otherwife H. W. Comfame right of mon whereof, &c. divers, to wit, fourteen hundred and ten acres on which faid open waftes and commons the faid R. before and at the faid time when, &c. had fuch and the fame right of common as in and upon the faid waste or common called W. Common, otherwife H. W: Common; and the faid James further fays, "common of paf- that true it is that the faid Richard and all thofe whofe eftates he the faid Richard now hath, and at the faid time when, &c. had of and in the faid land, with the appurtenances, from time whereof, &c. until the time of the inclofure hereinafter next mentioned, have had and have been used, and been accuftomed to have and ute, and of right during all the time aforefaid ought to have had and ufed for himself and themfelves, his and their farmers and tenants, occupiers of the fame land, with the appurtenances, common of paflure in, upon, and throughout the faid wafte or common called W. Common, otherwife H. W. Common, whereof the faid clofe in which, &c. until the time of the inclosure, hereinafter mentioned, was, and from time whereof, &c. hath been 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 and at all times of the year at his and their free will and pleafure as to the faid land, with the appurSir J. R. feifed tenances, belonging and appertaining: But the faid James furof the manor, ther faith, that one fir J. R. bart. + long before and at the faid whereof, &c. in time when, &c. was feifed of and in the faid manor of S. otherbis demelne as wife H. with the appurtenances, whereof the faid waste or com

of fee.

locus, &c.

mon called W. Common, otherwife H. W. Common and the faid fourteen acres of land in which, &c. and the said other waftes and commons were parcel as aforefaid in his demefne as of fee; and the faid fir J. R. being fo feifed of the faid manor, with the Sir J. inclofed appurtenances, whereof, &c. and being lord of faid manor as aforefaid, he the faid fir John, before the faid time when, &c. to wit, on the twenty-fecond of April 1783, did inclofe the faid fourteen acres in which, &c. then being part of the faid waste or common called H. Common, otherwife H. W. Common, from the refidue thereof with certain mounds, fences, and pales, to hold the fame fourteen acres of land in which, &c. to the faid fir John, his heirs and affigns for ever in feveralty to his and their own ufe, and did approve the fame there being then left by him, and remaining in the refidue of the faid waste or common called W. Common, otherwife H. W. Common, and in the faid other wastes and commons within the fame manor not inclofed fufficient common of pafture for all commonable cattle of the faid R. levant and cou(1)" meffuages chant upon the faid (1) lands of the faid C. with the appurtenances,

and lands,"

and

feifed

thereof in feve

ralty.

years,

and for all the commonable cattle of all other persons whatsoever of right having and ufing common of pafture in the faid waste or common called W. Common, otherwife H. W. Common, and the faid other wastes and commons within the faid manor, with free ingrefs, egrefs, way, and paffage for them and their commonable cattle, to have and use their common of pafture aforefaid in all the residue of the faid waste or common called W. Common, otherwise H. W. Common, and in the other waftes and commons with the said manor; by virtue whereof, and by force of the fta- Byvirtue wheretute in fuch cafe made and provided, the faid fir J. before the faid of, and of the time when, &c. became and was feifed of the faid fourteen ftatute, he beacres of land in which, &c. fo inclofed in feveralty by itfelf, and came divided and feparated from the refidue of the faid waste or common called W. Common, otherwife H. W. Common, by the faid mounds, fences, and pales in his demefne as of fee; and being fo and being fo feifed thereof, he the faid fir John afterwards and before the faid feifed,hedemifed time when, &c. to wit, on the eighth day of February 1785, at fame to plaintiff the parish of H. aforefaid, demifed the faid fourteen acres of land for nine hundred in which, &c. to the faid James, to hold the fame unto the faid James from the faid eighth day of February 1785, for, during, and unto the full end and term of nine hundred years from thence next enfuing, and fully to be complete and ended; by virtue of which faid demife the faid John afterwards and before the faid time when, &c. to wit, on the ninth day of February, in the year laft aforefaid, entered into the faid fourteen acres of land in which, whoentered,&c. &c. and was poffeffed thereof, and being fo poffeffed thereof, the faid R. at the faid time when, &c. of his own wrong broke and entered the faid fourteen acres of land in which, &c. being the juria, &c. clofe in the faid declaration mentioned, and pulled down, threw down, broke to pieces, proftrated, and deftroyed the mounds, fences, and pales of the faid James there then erected, standing, and being, and with feet in walking trod down, fpoiled, and confumed the grafs of the faid James there then growing, and with the faid cattle in the faid declaration mentioned eat up, trod down, fpoiled, and confumed other the grafs of the faid James, as the faid James hath above thereof complained against him; and this he is ready to verify; wherefore inafmuch as the faid R. hath above To 3d plea a acknowledged the committing of that trefpafs, the faid James prays like replication judgment and his damages by occafion of the committing of that as to 2d. trespass to be adjudged to him, &c.

Defendant,dein

And the faid James, as to the faid plea of the faid R. by him thirdly above pleaded in bar as to the breaking, &c. &c. above alledged to have been done by the faid R. faith, he by reafon of any thing by the faid R. above in that plea above alledged (precludi non); because he faith, that the faid close in which, &c. at the faid time when, &c. was fourteen acres of land § inclofed in manner and form hereinafter mentioned from the faid waste or common called W. Common, otherwife H. W. Common, lying and being within the manor of H. otherwife S. in the faid county of Middlefex, whereof the faid fourteen acres, from time whereof,

&c.

Rejoinder.