R. as to the faid plea of the faid 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 faid Richard, fays, that the faid James, by reafon, &c. &c. (actio non); becaufe the faid Richard (as before) fays, Iffucon traverse. 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 used and approved of, that is to say, that every cuftomary tenant of his faid cuftomary tenements laft-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 themfelves, his and their farmers and tenants, occupiers of the faid laft-mentioned meffuages and lands, 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 paths, ways, and walks of and in the gardens, orchards, and yards of and belonging, &c. &c. &c. as to the faid laft-mentioned meffuages and lands, with the appurtenances, belonging and appertaining, as the faid Richard hath in that plea alledged; and of this he the faid Richard puts himself upon the country, &c. [The like rejoinders by Dancer to plaintiff's replication to fecond, third, fourth, and fifth pleas.] And the faid Richard, as to the faid plea of the faid James Demurrer to reby him above pleaded by way of reply to the faid plea of the faid plication to 10th Richard by him fixthly above pleaded in bar, as to the breaking, plea. &c. above fuppofed to have been done by the faid Richard, fays, that the faid James (actio non); because protesting there is, and from time whereof, &c. there hath been fuch cuftom within the faid manor ufed and approved of touching the improvement or inclosure of the waftes of the faid manor of H. otherwife S. whereof, &c. as the faid Richard hath in that plea alledged; yet the faid R. for rejoinder in this behalf fays, that the fame replication, and the matters therein contained, are infufficient in law for the faid James to have or maintain his aforefaid action thereof against him the faid Richard, to which faid plea, in manner and form as the fame is above pleaded in reply, and the matters therein contained, the faid R. is under no neceffity, nor is he any way bound by the law of the land to answer; and this, &c.; wherefore for want of a Tufficient replication in this behalf the faid Richard prays judgment, and that the faid James may be barred from having and maintain ing his aforefaid action thereof against him, &c. And the faid To replication Richard, as to the faid plea of the faid James by him feventhly to 11th plea. above pleaded in bar, as to the breaking and entering, &c. &c. &c. above fuppofed to have been done by the faid Richard, fays, that the faid James (actio non); becaufe protefting that there now is, and from time whereof, &c. there hath been fuch custom with. in the faid manor ufed and approved of touching the improvement Surrejoinder, Iffue on traverse in replication to ad pleas or inclosure of waftes of the faid manor of H. otherwife S. where- And the faid James, as to the faid plea of the faid Richard by him above pleaded by way of rejoinder to the faid plea of the faid James by him above pleaded in 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 alledged to have been done by the faid Richard (as before) faith, that at the time of mounding, fencing, inclofing, and shutting up the faid clofe in which, &c. parcel, &c. as aforefaid, and at all times afterwards there was left by the faid fir J. Rufhout, and there was remaining in the faid waste or common called W. Common, otherwise H. W. Common, and in the faid other waftes or commons within the faid manor not inclofed fufficient common of pasture for all commonable cattle of the faid R. levant and couchant upon the faid land of the faid R. with the appurtenances, and for all the commonable cattle of all other perfons whatfoever of right having and ufing common of pasture in the faid waste or common called W. Common, otherwife H. W. Common, and the faid other waftes or commons within the faid manor, with free ingrefs, egrefs, way, and paflage for them and their commonable cattle, to have and ufe their common of pasture aforefaid, in all the refidue of the said waste or common called W. Common, otherwife H. W. Common, and in the faid other waftes or commons within the faid manor, in manner and form, &c. &c. and this he prays may be enquired of by the country, &c.: And the faid Richard doth fo likewife. [The like furrejoinder to Page's rejoinder to plaintiff's replication to Page's third plea]: And the faid James, as to the faid plea of the faid Richard by him above pleaded by way of rejoinder to the faid plea of him 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, and whereof the faid Richard hath put himself upon the country, &c. he the faid James doth fo likewife. [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 Jainder in de- fecond, third, fourth, and fifth pleas]: And the faid James fays, that the faid plea of him the faid James in manner and form pleaded by way of reply to the faid plea of the faid Richard by him fixthly above pleaded in bar, and the matters therein contained, are fufficient in law for him the faid James to have or maintain his faid action thereof against him the faid Richard; which said plea, and the matters therein contained, he the faid James is ready to verify and prove as the court fhall award, and becaufe the faid Richard hath not answered the faid plea, nor hath in any manner denied the same, the faid James (as before) prays judgment and his damages, muirer. damages, by reafon of the premises, to be adjudged to him, &c.: And the faid James, as to the faid plea of the faid Richard by him above pleaded by way of rejoinder 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 feventhly above pleaded in bar, and wherein the said Richard hath put himself upon the country, he faid James doth fo likewife. [The like furrejoinders 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. vult. give in the premises wherein the parties have put themselves upon the judgment of the court here, before they give judgment thereon, a day therefore is given to the parties aforefaid 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 feveral iflues aforefaid above joined to be tried by the county, as to enquire what damages the faid James Duberley hath sustained on occafion of the premises, whereof the faid parties had above put themselves upon the judgment of the court, in cafe judgment should be thereon given for the faid James Duberley, let a jury come, &c. &c. GEO. WOOD. Afterwards, that is to fay, on the day and at the place within- Poftea. mentioned, before the honourable Francis Buller, efquire, one of the juftices of our lord the now king, affigned to hold pleas in the court of our faid lord the king, before the king himself there, being affociated unto him John Way, gentleman, according to the form of the ftatute 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, fome of them, that is to fay, James Clitherow, efquire, Benjamin Lucas, efquire, Robert Higgerfon, efquire, Simon Le Sage, efquire, Edward Barnaby Green, efquire, James Brindly, efquire, and John Richly, efquire, appear and are sworn on that jury; and because the refidue of the jurors of the fame jury whereof mention is within made do not appear, therefore Tales circumftanother perfons ftanding by the court by the fheriff of the county tibus. aforesaid, at the request of the faid James Duberley, and by the command of the faid juftice above named are now newly fet down, whofe names are affiled in the within written parcel, according to the form of the statute in that cafe made and provided; which faid jurors fo newly fet down, that is to fay, William Shephard, Edmund King, John Robers, Thomas Hart, and Richard Talbot, being required, came, who together with the faid other jurors before impannelled and fworn to declare the truth of the within contents, being elected, tried, and fworn as to the first iffue between the parties aforefaid within joined upon their oath ay, that the faid Richard Page and Daniel Dancer are guilty of the trefpaffes within laid to their charge, in manner and form as the faid James Duberley hath within thereof complained against them: And as to the fourth iffue between the faid R. Page and the faid J. Duberley within likewife joined, the fame jurors, on their oath aforefaid, further fay, that the faid 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 meffuages and lands, with the appurtenances, from time whereof, &c. until the time of the inclofure in the faid plea of the faid R. Page by him fourthly within pleaded in bar mentioned, have dug and taken, and have ufed 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 themfelves, his and their farmers and tenants, occupiers of the faid lastmentioned meffuages and lands, with the appurtenances, fand and gravel in, upon, and throughout the within-mentioned wafte 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 last-mentioned meffuages, with the appurtenances, and for the neceffary repairing and amending of 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 as need 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 Richard hath in his faid plea by him fourthly within pleaded alledged [All the other iffues refpecting the right of digging fand and gravel were found for the defendants]: As to fome if And as to the faid other iffues refpectively joined between the parfues in mercy. ties aforefaid, to be tried by the country for certain caufes moving as well the faid juftice above-mentioned as the faid parties, the jury aforefaid fworn to try the faid iffues are entirely difcharged from giving any verdict of or upon them; therefore it is confidered that the faid James Duberley take nothing by his faid bill, but that he be in mercy of the court for his falle clamour, and that the faid Richard Page and the faid Daniel Dancer go thereof without day; and it is further confidered, that the faid R. Page and D. Dancer recover again't the faid James Duberley for their cofts 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 ftatute in fuch case made and provided, and that the faid R. Page and the faid D. Dancer have execution thereof, &c. Drawn by MR. J. GRAHAM. Plea ft, Ge- AND the faid John Ferguson, by his attorney, comes and defends 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 firft Count of the faid declaration mentioned, ed in fee of a land. in which, &c. and with his feet in walking treading down, fpoiling, and confuming the faid grafs there lately growing, and with horles, mares, and geldings, cows, oxen, and fheep of the faid cattle in the faid declaration mentioned, eating up, depafturing, treading down, confuming, and spoiling the faid other grafs there alfo growing, and with the wheels of carts, waggons, and other carriages turning up and fubverting the faid foil there in the faid clofes, and with fpades and other inftruments digging in the faid foil there in the faid clofes, and thereout digging and getting the faid turfs and flacks in the declaration firft above-mentioned, and the faid turfs and flacks fo thereout got, taking and carrying away, and converting and difpofing thereof to his own ufe above fuppofed to have been committed by the faid J. Ferguson, he the faid J. Ferguson, by leave, &c. fays, that the faid J. Irwing (actio non); because he fays, that the faid clofes called, &c. in the faid firft Count of the faid declaration mentioned are, and at the faid feveral times when, &c. and long before were one and the fame piece or parcel of land called as well by thofe feveral and refpective names as by the name of Gill Loaping, the Back of the Little Hen Mofs, the Common without the Bernthill Year, and the Sike Side, and lying and being in Kingfmoor aforefaid; and that Defendant and the faid John Ferguson, and one Robert Ferguson, and one Rich- two others feifard Ferguson, long before any of the faid times when, &c. were and fill are feifed of and in a certain meffuage and divers, to meffuage and wit, fifty acres of land called Curigh Dyke, with the appurtenances, in the parish of Stanwick, in the faid county of Cumberland, Prefcription for in their demefne as of fee; and that they the faid J. Ferguson, common of pafture in locus in Richard, and Robert, and all those whofe eftates they now have, quo for commonand at the faid feveral times when, &c. had of and in the faid meffu able horses, &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 accuftomed to have, and of right ought to have common of pasture in the faid piece or parcel of land in which, &c. for all their commonable horfes, mares, geldings, cows, oxen, and theep levant and couchant upon the faid mefluage and land called Curigh Dyke, with the appurtenances, every year at all times of the year as to the fame neffuage and lands, with the appurtenances, belonging and appertaining; and that they Prefcription to the faid John Fergufon, Kichard, and Robert, and all those whofe dig flacks inlocus eftates they now have, and at the said several times when, &c. for had of and in the faid meffuage and land called Curigh Dyke, houfe, and rewith the appurtenances, from time whereof, &c. have dug and pairing fences. taken, and been used and accustomed to dig and take, and still of right ought to dig and take flacks in and upon the faid piece or parcel of land in which, &c. for the neceflary covering of the faid meffuage, with the appurtenances, and repairing the fence of the faid land of them the faid John Fergufon, Richard, and Robert, every year at all times of the year as often as occafion required, as to the faid mefluage and land, with the appurtenances, belonging and appertaining; and also that the faid John Ferguson, Richard, Prefcription to and dig turfs for ne. covering ceffary f.. |