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R. as to the said plea of the said James by him above pleaded by way of reply to the faid plea of the faid R. by him fifthly above pleaded in bar as to the breaking and entering, &c. &c. above supposed to have been done by the said Richard, says, that the said James, by reason, &c. &c. (actio non); because the said Richard (as before) says, Illucon traverse. that within the said manor whereof, &c. there now is, and from time whereof, &c. there hath been a certain ancient and laudable custom there used and approved of, that is to say, that every customary tenant of his said customary tenements last-mentioned, with the appurtenances, parcel, &c. for the time being, from time whereof, &c. until the time of the inclosure in that plea mentioned, have dug and taken, and have used and been accustomed to dig and take, &c. &c. for himself and themselves, his and their farmers and tenants, occupiers of the said last-mentioned messuages and lands, with the appurtenances, parcel, &c. fand and gravel in, upon, and throughout the said waste or common, parcel, &c. whereof, &c. for the necessary repairing and amending of the paths, ways, and walks of and in the gardens, orchards, and yards of and belonging, &c. &c. &c. as to the said last-mentioned messuages and lands, with the appurtenances, belonging and appertaining, as the said Richard hath in that plea alledged ; and of this he the said Richard puts himself upon the country, &c. [The like rejoinders by Dancer to plaintiff's replication to second, third, fourth, and fifth pleas.]

And the said Richard, as to the said plea of the said James Demurrer to reby him above pleaded by way of reply to the said plea of the said plication to roth Richard by him fixthly above pleaded in bar, as to the breaking, plea. &c. above supposed to have been done by the said Richard, says, that the said James (aétio non); because protesting there is, and from time whereof, &c. there hath been such custom within the faid manor used and approved of touching the improvement or inclosure of the wastes of the said manor of H. otherwise S. whereof, &c. as the said Richard hath in that plea alledged; yet the faid R. for rejoinder in this behalf says, that the fame replication, and the matters therein contained, are insufficient in law for the said James to bave or maintain his aforesaid action thereof against him the said Richard, to which said plea, in manner and form as the same is above pleaded in reply, and the matters therein contained, the said R. is under no necessity, nor is he any way bound by the law of the land to answer; and this, &c.; wherefore for want of a Yufficient replication in this behalf the said Richard prays judgment, and that the said James may be barred from having and maintaining his aforesaid action thereof against him, &c.: And the said To replication Richard, as to the faid plea of the said James by him feventhly to 17th plea. above pleaded in bar, as to the breaking and entering, &c. &c. &c. above supposed to have been done by the said Richard, says, that the said James (actio non); becaule protesting that there now is, and from time whereof, &c. there hath been such custom with. in the said manor used and approved of touching the improvement

or inclosure of wastes of the said manor of H. otherwise S. whereof, &c. as the said R. hath in that plea ailedged, the said Richard (as before) says [Prescription fame as rejoinder to fifth plea by Page] in manner, &c.; and of this the laid R. puts himself upon the country, &c. [The like rejoinder to the plaintiff's replication to Dancer's sixth and last pleas.] THO. WALKER,

Surrejoinder, And the said James, as to the said plea of the said Richard by him

above pleaded by way of rejoinder to the said plea of the said James by him above pleaded in reply to the said plea of the said Richard by him secondly above pleaded in bar as to the breaking

and entering, &c. &c. above alledged to have been done by the faid !Mue on traverse Richard (as before) faith, that at the time of mounding, fencing, in replication to 3d pleae inclosing, and shutting up the faid clofe in which, &c. parcel, &c,

as aforesaid, and at all times afterwards there was left by the faid fir J. Rufhout, and there was remaining in the said waste or common called W. Common, otherwise H. W. Common, and in the said other wastes or commons within the said manor not inclosed sufficient common of pasture for all commonable cattle of the said R. levant and couchant upon the said land of the said R. with the appurtenances, and for all the commonable cattle of all other persons whatsoever of right having and using common of pasture in the said waste or common called W. Common, otherwise H. W. Common, and the said other wastes or commons within the said manor, with free ingress, egress, way, and passage for them and their commonable cattle, to have and use their common of pasturę aforesaid, in all the residue of the said waste or common called W. Common, otherwise H. W. Common, and in the said other waites or commons within the said manor, in manner and form, &c. &c. and this he prays may be enquired of by the country, &c. : And the said Richard doth (o likewise. [The like surrejoinder to Pages rejoindes to plaintiff's replication to Page's third plea) : And the faid Jaines, as to the faid plea of the said Richard by him above pleaded by way of rejoinder to the said plea of him the said James by him above pleaded by way of reply to the said plea of the said Richard by him fourthly above pleaded in bar, and whereof the faid Richard hạth put binself upon the country, &c. he the said James doth folikewile. [The like furrejoinder to Page’s rejoinders to plaintiff's replication to Page's fifth plea. The like furrejoinder

to Dancer's four rejoinders to plaintiff's replications to Dancer's Joinder in de- fecond, third, fourth, and fifth pleas]: And the said James says,

that the said plea of him the laid James in manner and form pleaded by way of reply to the faid plea of the said Richard by him fixthly above pleaded in bar, and the matters therein contained, are sufficient in law for him the said James to have or maintain his faid action thereof against him the said Richard; which said plea, and the matters therein contained, he the said James is ready to verify and prove as the court shall award, and because the laid Richard hath not answered the said plea, nor hath in any manner denied the fame, the said James (as before) prays judgment and his

damages

muirci.

damages, by reason of the premises, to be adjudged to him, &c.: And the laid James, as to the faid plea of the said Richard by him above pleaded by way of rejoinder to the said plea of the said James by him above pleaded by way of reply to the said plea of the faid Richard by bim seventhly above pleaded in bar, and wherein the said Richard hath put himself upon the country, he faid James doth so likewise. (The like surrejoinders by Dancer] ; but because the court of our lord the king, before the king him- Continuance by felf now here, will advise among themselves what judgment to curia adv. vuls. give in the premises wherein the parties have put themselves upon tbe judgment of the court here, before they give judgment thereon, a day therefore is given to the parties aforelaid to come before our lord the king at Westminster on next after to hear judgment thereon, because that the court of our lord the king now here is not fully advised thereof, and as well to try the several illues aforesaid above joined to be tried by the county, as to enquire what damages the said James Duberley hath sustained on occasion of the premises, whereof the said parties had above put themselves upon the judgment of the court, in case judge ment should be thereon given for the said James Duberley, let a jury come, &c. &c.

Geo. Wood.

Afterwards, that is to say, on the day and at the place within- Polea. mentioned, before the honourable Francis Buller, esquire, one of the justices of our lord the now king, assigned to hold pleas in the court of our said lord the king, before the king himself there, being affociated unto him John Way, gentleman, according to the form of the statute in such case made and provided, came as well the within-named James Duberley as the within-named Richard Page and Daniel Dancer by their attornies within contained, and the jurors of that jury, whereof mention is within made, being fummoned, some of them, that is to say, James Clitherow, esquire, Benjamin Lucas, esquire, Robert Higgerson, esquire, Simon Le Sage, esquire, Edward Barnaby Green, esquire, James Brindly, esquire, and John Richly, esquire, appear and are sworn on that jury; and because the residue of the jurors of the same jury whereof mention is within made do not appear, therefore Tales circumfl aza other persons standing by the court by the sheriff of the county tibus. aforesaid, at the request of the said James Duberley, and by the command of the said justice above named are now newly set down, whose names are affiled in the within written parcel, according to the form of the statute in that case made and provided; which said jurors fo newly let down, that is to say, William Shephard, Edmund King, John Robers, Thomas Hart, and Richard Talbot, being required, came, who together with the said other jurors before impannelled and sworn to declare the truth of the within contents, being elected, tried, and sworn as to the first issue between the parties aforesaid within joined upon their oath say, that the said Richard Page and Daniel Dancer are guilty of

the trespasses within laid to their charge, in manner and form as the said James Duberley hath within thereof complained against them: And as to the fourth issue between the said R. Page and the said J. Duberley within likewise joined, the same jurors, on their oath aforesaid, further say, that the said R. Page, and all those whose estates he said R. Page now hath, and at the faid time when, &c. had of and in the within-mentioned inesluages and lands, with the appurtenances, from time whereof, &c. until the time of the inclosure in the faid plea of the said R. Page by him fourthly within pleaded in bar mentioned, have dug and taken, and have used and been accustomed to dig and take, and during all the time aforesaid hitherto of right ought to have dug and taken, and still of right ought to dig and take for himself and themselves, his and their farmers and tenants, occupiers of the said lattmentioned meffuages and lands, with the appurtenances, fand and gravel in, upon, and throughout the within-mentioned waste or common whereof, &c. for the necessary repairing and amending of the ways, paths, and walks of and in the gardens, orchards, and yards of and belonging to the said lait-mentioned messuages, with the appurtenances, and for the necessary repairįng and amending of the ways in, upon, and belonging and appertaining to the said last-mentioned lands, with the appurtenances, every year at all times of the year as often as need or occasion hath required as to the faid messuages and lands laft-mentioned, with the appurtenances, belonging and appertaining, in manner and form as the said Richard hath in his faid plea by him fourthly within pleaded alledged [All the other issues respecting

the right of digging fand and gravel were found for the defendants]: As to some is. And as to the said other issues respectively joined between the parfues in mercy. ties aforesaid, to be tried by the country for certain causes mov.

ing as well the faid justice above-mentioned as the said parties, the jury aforesaid sworn to try the said issues arc entirely discharged from giving any verdict of or upon them; therefore it is conlider. ed that the said James Duberley take nothing by his faid bill, but that he be in mercy of the court for his falle clamour, and that the said Richard Page and the faid Daniel Dancer go thereof with. out day; and it is further considered, that the laid R. Page and D. Dancer recover again't the said James Duberley for their costs and charges laid out by them about their defence on this behalf adjudged to the faid R. Page and D. Dancer by the court of our lord the king now here by their own affent, according to the form of the starute in such case made and provided, and that the said R. Page and the said D. Dancer have execution thereof, &c.

Drawn by Mr. J. GRAHAM.

2d Plea,

Plea ift, Ge AND the said John Ferguson, by his attorney, comes and de. neral Iffue.

fends the force and injury, when, &c. (general iffue]: And for further plea as to the breaking and entering the faid clofes called, &c. in the faid first Count of the laid declaration meationed,

in

in which, &c. and with his feet in walking treading down, spoiling, and consuming the said grass there lately growing, and with - horses, mares, and geldings, cows, oxen, and theep of the said cattle in the said declaration mentioned, eating up, depafturing, treading down, consuming, and spoiling the said other grass there also growing, and with the wheels of carts, waggons, and other carriages turning up and subverting the faid foil there in the faid closes, and with spades and other inftruments digging in the said foil there in che faid closes, and thereout digging and getting the faid turfs and facks in the declaration first above-mentioned, and the faid turfs and Aacks lo thereout got, taking and carrying away, and converting and disposing thereof to his own use above suppoí. ed to have been committed by the faid J. Ferguson, he the said J. Ferguson, by leave, &c. says, that the said J. Irwing (actio non); because he says, that the said clofes called, &c. in the said first Count of the said declaration mentioned are, and at the said feveral times when, &c, and long before were one and the same piece or parcel of land called as well by those several and respective names as by the name of Gill Loaping, the Back of the Little Hen Mors, the Common without the Bernthill Year, and the Sike Side, and lying and being in Kingsmoor aforesaid; and that Defendant and the said John Ferguson, and one Robert Ferguson, and one Rich- two others feifard Ferguson, long before any of the said times when, &c. were ed in fee of a and fill are seifed of and in a certain messuage and divers, to land.

messuage and wit, fifty acres of land called Curigh Dyke, with the appurtenances, in the parish of Stanwick, in the said county of Cumberland, Prescription for in their demesne as of fee; and that they the said J. Ferguson, common of par. Richard, and Robert, and all those whose estates they now have,

ture in locus in

for commonand at the said several times when, &c. had of and in the said messu. able horlea, &c. age and land called Curigh Dyke, with the appurtenances, from time whereof the memory of man is not to the contrary, have had and have used, and been accustomed to have, and of right ought to have a common of pasture in the said piece or parcel of land in which, &c. for all their commonable horses, mares, geldings, cows, oxen, and theep levant and couchant upon the said mefliuage and land called Curigh Dyke, with the appurtenances, every year at all times of the year as to the fame nelluage and lands, with the appurtenances, belonging and appertaining ; and that they Prescription to the said John Ferguson, Richard, and Robert, and all those whose dig facks inlocus eftates they now have, and at the said several times when, &c. for covering had of and in the faid messuage and land called Curigh Dyke, house, and rewith the appurtenances, from time whereof, &c. have dug and pairing fences. taken, and been used and accustomed to dig and take, and itill of right ought to dig and take flacks in and upon the said piece or parcel of land in which, &c. for the necessary covering of the said mesfuage, with the appurtenances, and repairing the fence of the said land of them the said John Fergufon, Richard, and Robert, every year at all times of the year as often as occasion required, as to the faid mesluage and land, with the appurtenances, belonging and appertaining; and also that the said John Ferguson, Richard, Prescription to

and dig turts for ne.

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