&c. until the faid inclosure thereof, were parcel, and that the faid waste or common called W. Common, otherwife H. W. Common, whereof, &c. at the faid time when, &c. was, and from time whereof, &c. hath been parcel of the manor of H. otherwise S. in the faid county of Middlefex, within faid manor there now are, and at the faid time 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, and containing together with the faid wafte or common called W. Common, otherwife H. W. Common, whereof, &c. divers, to wit, one thoufand four hundred and ten acres on which faid open waftes and commons he the faid R. before and at the faid time when, &c. had fuch and the said 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, that true it is that the faid meffuage and land, with the appurtenances, in the faid plea mentioned, were and have been and are within and parcel of the faid manor and customary tenements of the faid manor, as the faid R. hath in that plea alledged; and that the faid fir J. R. was feifed of the faid manor, and did grant the faid meffuages and lands to the faid R. and that the faid R. did enter and become feifed thereof as the faid R. hath in that plea above alledged; and that within the faid manor whereof, &c. there now is, and from time whereof, &c. there hath been a certain ancient and laudable custom there ufed and approved of, that is to fay, that every customary tenant of the faid cuftomary tenements, with the appurtenances, parcel, &c. for the time being, from time whereof, &c. until the time of the inclosure hereinafter next mentioned, have had, and have used and been accustomed to have and ufe, and of right during all the time aforefaid hitherto of right 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 faid laft-mentioned tenements, with the appurtenances, parcel, &c. common of pafture in, upon, and throughout the faid waste or common called W. Common, otherwife H. W. Common, for all his and their commonable cattle levant and couchant in and upon the faid meffuages and lands lastmentioned, with the appurtenances, parcel, &c. in each and every year, at all times of the year, at his and their free will and pleafure as to the faid meffuages and lands laft-mentioned, with the appurtenances, parcel, &c. belonging and appertaining; but the faid James further faith, that the faid fir J. R. [Same as in replication to fecond plea from + to the end]: And the faid James, as to the faid plea of the faid Richard by him fourthly above pleaded in bar as to the breaking and entering, &c. &c. above alledged to have been done by the faid Richard, faith, that he by reason of protefting the any thing by the faid Richard in that plea alledged (precludi non); defendant was because protesting that the faid Richard was nor is feifed of divers not feifed of the meffuages and one thousand acres of land, with the appurtenances, meffuages and within the faid manor, as the faid R. hath in that plea alledged; for

To 4th plea,

land.

repli

&c.

replication in this behalf the faid James fays, that he the faid R. at Says that defenthe faid time when, &c. of his own wrong, broke and entered the dant de inju ia, faid clofe of the faid James in the faid declaration mentioned, and pulled down, threw down, proftrated, broke to pieces, and deftroved the faid part of the faid mounds, fences, and pales of the faid R. in the said declaration mentioned, 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, spoiled, and confumed other the grafs of the faid James there then growing in the faid declaration' mentioned, and with the wheels of the faid carts, waggons, and other carriages, fubverted, turned up, and spoiled the foil of the faid James there in manner and form as the faid James hath above complained againft hic; without this, that he the faid Richard, Traverfe of the and those whofe eftate he the faid R. now hath, and at the faid time cuftom to dig when, &c. had of and in the faid laft-mentioned meffuages and fand. land, with the appurtenances, from time whereof, &c. until the time of the inclofure in that plea mentioned, have dug and taken,.. and have used and been accuftomed to dig and take, and during all the time aforefaid hitherto of right ought to have dug and taken, 2nd fill of right ought to dig and take for himfelf and themselves, his and their farmers and tenants, occupiers of the faid laft-mentioned meffuage 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 be longing to the faid laft-mentioned mefluages, with the appurte nances, and for the neceffary repairing and amending the ways in, upon, and belonging and appertaining to the faid laft-mentioned lands, with the appurtenances, every year at all times of the year as often asneed or occafion hath required as to the faid meffuages and lands laft-mentioned, with the appurtenances, belonging and appertaining, in manner and form as the faid R. hath above in that plea alledged; and this, &c.; wherefore, &c. And the faid James, as to To gth Plea. the faid plea of the faid R. by him fifthly above pleaded in bar, as to the breaking and entering, &c. above alledged to have been done by the faid Richard, faith that he by reafon of any thing by

the faid R above in pleading alledged (precludi non); because pro- Protefting fir J. tefting that the faid fir John Rufhout did not grant the meffuages R. did not grant, and lands in that plea mentioned unto the faid R. as the faid R. hath &c.

wrong

in that plea alledged; for replication in this behalf the faid James Says de injuria, fays, that the faid R. at the faid time when, &c. of his own broke and entered the faid clofe in the faid declaration mentioned, and pulled down, &c. &c. &c.; without this, that within the faid Traverse of the manor whereof, &c. there now is, and from time whereof, &c. custom within there hath been a certain ancient and laudable cuftom there used the manor to dig fand, &c. and approved of, that is to say, that every cuftomary tenant of the faid cuftomary tenements last-mentioned, with the appurtenances, parcel, &c. for the time being, from time whereof, &c. until the time of the inclofure in that plea mentioned, have dug and taken, VOL. IX.

P

and

and have used and been accustomed to dig and take, and during all the time aforefaid hitherto of right ought to have dug and taken, and ftill of right ought to dig and take for himself and themselves, his and their farmers and tenants, occupiers of the faid laft-mentioned meffuages and land laft-mentioned, with the appurtenances, parcel, &c. fand and gravel in, upon, and throughout the faid waste or common, parcel, &c. whereof, &c. for the neceffary repairing and amending of the ways, paths, and walks of and in the gardens, orchards, and wards of and belonging to the faid laft-mentioned meffuages, with the appurtenances, parcel, &c. and for the neceffary repairing and amending of the ways in, upon, and belonging and appertaining to the faid last-mentioned lands, with the appurtenances, parcel, &c. 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 belonging and appertaining, as the faid R. hath in that plea alledged; and this, &c.; wherefore, &c. Like replication [Replication to fixth mentioned plea by Dancer fimilar to first. to defendant Replication to feventh plea fimilar to third. Replication to eighth To 10th plea. plea. Similar. Similar to fourth replication:] And the faid James, as to the faid plea of the faid Richard by him tenthly above pleaded in bar, as to the breaking and entering, &c. &c. above alledged to have been done by the faid Richard, faith that he by reaprotesting infuf- fon of any thing in that plea alledged (precludi non); because protefting that the faid plea, and the matters therein contained, are not fufficient in law to bar the faid James from having and maintaining his aforefaid action thereof againft him the faid Richard; protesting a- because protesting alfo that there is not, nor from time whereof, gainst the cuf- &c. there hath not been any fuch cuftom within the faid manor tom to approve. used and approved of touching the improvement or inclosure of the

Dancer's pleas.

ficiency f

faid waftes of the faid manor of H. otherwife S. whereof, &c. as Same replication the faid R. hath in that plea alledged; for replication nevertheless as to 3d pica. in this behalf he the faid James faith, that the said close in which, &c. at the faid time when, &c. was fourteen acres of land To 11th plea, [Same as in replication to third plea by Page]: And the faid protefting, and James, as to the faid plea of the faid R. by him eleventhly for replication de above pleaded in bar as to the breaking, &c. &c. &c. protesting injuria; and tra. verfe of the cuf- that there is no fuch cuftom of approvement and inclofure [Same tom to dig gra- as in replication to tenth plea for replication de injuria fua propria, and traverse of the cuftom of digging fand and gravel, fame as in replication to fifth plea. Replication to twelfth plea by Dancer, Like replication fame as replication to tenth plea by Page. Replication to thirto 12th and 13th teenth plea by Dancer, fame as replication to eleventh plea by Page.] pleas. GEO. WOOD.

vel.

Rejoinder to re

plea.

And the faid Richard, as to the faid plea of the faid James by plication to 2d him above pleaded by way of reply to the faid plea of the faid Richard by him fecondly above pleaded in bar, as to the breaking and entering, &c. &c. above fuppofed to have been done by the faid Richard, he the faid Richard R. fays, that the faid James by reafon of any thing in his faid plea by him above pleaded by way of 4

reply

had wrongfully

ficiency of com

mon being left

reply to the faid plea of the faid R. by him fecondly above in bar afledged (actio non); becaufe he fays, that the faid James had That plaintiff wrongfully and injurioufly before the faid time when, &c. mended, inclofed locusunfenced, inclofed, and fhut up the faid clofe in which, &c. parcel, der pretence of &c. from the faid common or wafte whereof, &c. under pretence holding it in feof holding the faid clofe in which, &c. parcel, &c. in feveralty, and veralty by way of approving, to his own use by way of approving of the faid clofe in which, &c. &c. parcel, &c. as the faid James hath in his faid plea by him above pleaded in bar alledged, and wrongfully and injuriously kept and wrongfully and continued the faid mounds, fences, and pales fo erected, stand- continued the ing, and being in and upon the said close in which, &c. parcel, fences, &c. until and at the faid time when, &c. and thereby wrongfully and injuriously, under the pretence aforefaid, mounded, fenced, and and thereby inclosed, and fhut up the faid clofe in which, &c. parcel, &c. from wrongfully in the refidue of the faid waste or common, whereof, &c. in man- clofed locus. ner and form as the said Richard hath in his said plea by him above pleaded in bar; without this, that at the time of mending, fenc- Traverfe of fufing, inclofing, and fhutting up the faid clofe in which, &c. parcel, &c. as aforefaid, at any time after there was left by the faid fir John Rufhout and the faid James, or either of them, or was there remaining in the refidue of the faid waste or common called W. Common, otherwife H. W. Common, and in the faid other waftes or commons within the faid manor not inclosed, fufficient common of pasture for all commonable cattle levant and couchant of the said R. upon the faid land of the faid Richard, with the appurtenances, and for all commonable cattle of all other perfons whatfoever of right having and ufing common of pafture in the faid waste or com mon called W. Common, otherwife H. W. Common, and the said other waftes or 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 refidue of the faid waste or common called W. Common, otherwife H. W. Common, and in the said other waftes and commons within the said manor, in manner and form as the faid James hath in his faid plea by him above pleaded by way of reply to the faid plea of the faid Richard by him fecondly above pleaded in bar alledged; and this, &c.; wherefore, &c.: And the faid R. as to the faid plea of the to 3d plea a like To replication faid James by him thirdly above pleaded in bar as to the breaking rejoinder. and entering, &c. &c. above fuppofed to have been done by the faid R. he the faid R. fays, that the faid James by reafon of any thing in his faid plea by him above pleaded, by way of reply to the faid Richard by him above pleaded in bar alledged (actio non); because he fays, that the faid James had wrongfully and injuriously before the faid time when, &c. mounded, fenced, inclofed, and fhut up the faid close in which, &c. parcel, &c. in feveralty to his own ufe by way of approving the faid clofe in which, &c. parcek &c. as the faid James was in his faid plea by him above pleaded by way of reply to the faid plea of the faid Richard by him thirdly above pleaded in bar alledged, and wrongfully and injuriously kept and continued the faid mounds, fences, and pales fo erected, ftanding, and being in and upon the faid clofe in which, &c. parcel, &c. un

P 2

til

til and at the said time when, &c. thereby wrongfully and injuriously, under the pretence aforefaid, mounded, fenced, inclosed, and fhut up the faid clofe in which, &c. parcel, &c. from the faid refidue of the faid waste or common whereof, &c. in manner and form as the faid Richard hath in his faid plea by him thirdly above pleaded in bar alledged; without this, that at the time of mounding, fencing, inclofing, and fhutting up the faid clofe in which, &c. parcel, &c. as aforefaid, or at any time after there was left by the faid fir J. R. and the faid James, or either of them, or was there remaining in the refidue of the faid waste or common called W. Common, otherwife H. W. Common, and in the said other wastes or commons within the faid manor not inclosed fufficient common of pafture for all commonable cattle levant and couchant upon the faid meffuages and lands of the faid R. with the appurtenances, and for all the commonable cattle of all other perfons whatsoever of right having and ufing common of pafture in the faid waste or common called W. Common, otherwife H. W. Common within the faid manor, with free ingrefs, egrefs, way, and paffage for them and their commonable cattle levant and couchant, to have and ufe their common of pafture aforefaid in all the refidue of the faid waste or common called Weeled Common, otherwise Harrow Weeled Common, and in the faid waftes and commons within the faid manner, in manner and form as the faid James Cutler in his faid plea by him above pleaded by way of reply to the faid To replication plea of the faid Richard by him thirdly above pleaded in bar alledged; and this, &c.; wherefore, &c. And the faid Richard, as to the faid plea of the faid James by him above pleaded by way of reply to the faid plea of the faid Richard by him fourthly above pleaded in bar, as to the breaking and entering, &c. &c. above fuppofed to have been done by the faid R. be the faid R. fays, that Iffqe ontraverse. the faid James, by reason of any thing (actio non); because he the faid Richard (as before) fays, that the faid R. and all those whofe eftates he the faid R. now hath, and at the faid time when, &c. had aforefaid in the faid laft-mentioned meffuages and lands, with the appurtenances, from time whereof, &c. until the time of the inclolure in that plea mentioned, have dug and taken, and have used and been accustomed to dig and take, and during all the time aforefaid hitherto of right ought to have dug and taken, and ftill of right ought to dig and take for himself and them-. felves, his and their farmers and tenants, occupiers of the said laft-mentioned meffuage 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 meffuages, with the appurtenances, every year at all times of the year as often as need or occafion hath required as to the faid mefluages and lands laft-mentioned, with the appurtenances, belonging and appertaining, in manner and form as the faid Richard hath above in that plea alledged; and of this the To replicationto faid Richard puts himself upon the country, &c.; And the faid 5th plea.

to 4th plea.

R. as