and Robert, and all those whofe eftates they now have, and at the faid feveral times when, &c. had of and in the faid meffuage and land, with the appurtenances, from time whereof, &c. have dug and taken, and have been used and been accustomed to dig and take, and fill of right ought to dig and take turfs in and upon the faid piece or parcel of land in which, &c. for their necessary fuel to be burnt and confumed in the faid meffuage every year at all times of the year, as to the faid meffuage, with the appurtenances, belonging and appertaining: And the faid John Ferguson further faith, that the faid J. Ferguson and the faid Richard and Robert being fo feifed of and in the faid meffuage, &c. with the Defendant put appurtenances, &c. as aforefaid, he the faid J. Fergufon, at the in his cattle to faid feveral times when, &c. put the faid horfes, mares, geldings, ufe his common cows, oxen, and fheep in the faid declaration first mentioned, then of pafture, &c. Defendant's alfo. being the commonable horfes, mares, geldings, cows, oxen, and fheep of the faid J. Fergufon, Richard, and Robert, levant and couchant in their faid meffuage and land called Curigh Dyke, with the appurtenances, into the faid piece or parcel of land in as it was lawful, which, &c. to feed and depasture upon the grafs then there growing, and to use their faid common of pafture there as he lawfully might, and on that occafion the faid horfes, &c. at the faid feveral times when, &c. eat up, depaftured, trod down, confumed, and fpoiled the faid grafs then growing in the faid place in which, &c. ufing the faid common of pafture of the faid J. Ferguson, Richard, and Robert there: And the faid J. F. further faith, that before and houfe out of re- at the said several times when, &c. the faid meffuage was in decay pair, and fences for want of covering, and certain fences of and belonging to the faid land, before and at the said several times when, &c. were ruinous and in great decay for want of repairing thereof, and in Defendant, in order to cover the faid meffuage, and repair and amend the said order to repair and to get turfs fences, and the covering the faid meffuage, and repairing and for fuel, dug, amending the faid fences, and for getting of turfs for neceflary fuel to be burnt and confumed in the faid meffuage, he the faid J. Ferguson, at the faid feveral times when, &c. with fpades and other inftruments dug in the foil in the faid piece or parcel of land in which, &c. and thereout dug and got the said turfs and flacks in the faid declaration firft mentioned, for the refpective purposes aforefaid, and with carts, waggons, and other carriages, did take, lead, and carry away the fame from and out of the faid piece or parcel of land called Curigh Dyke, in which, &c. for the purposes aforefaid, and burnt and confumed the faid turfs in the faid mefluage, and used the said flacks in covering the faid meffuage, and in the reparation of the faid fences fo being ruinous and in decay as aforefaid, as it was lawful for him to do, and the faid J. F. in paffing and repaffing the faid piece or parcel of land in which, &c. with the faid carts, waggons, and other carriages for the taking and leading away the faid turfs and flacks thereout at the faid feveral times when, &c. did neceffarily and unavoidably turn up and fubvert the faid foil there in the faid piece or parcel of land in which, &c. with the wheels &c. of fed of a quantity to of carts, waggons, and other carriages, and did alfo tread down, fpoil, and confume fome little grafs there then growing with his feet in walking, doing as little damage on that occafion as he poffibly could, which are the fame breaking and entering, &c. whereof the faid J. Irwing hath above complained against him; and this, &c. ; wherefore, &c. : [Third plea fame exactly as fecond 3d Plea. plea, only to the fecond Count instead of the firft]: And for 4th Plea, as to further plea as to the affaulting, beating, wounding, and evil affaulting, &c. treating the faid J. Irwing above fuppofed to have been done, he that the defendthe faid J. Ferguson, by like leave, &c. fays, that the faid J. I. ant was poffef(actio non); becaufe he the faid J. Fergufon fays, that he the faid of turfs, which J. F. before and at the faid time when, &c. at Kingfmoor afore- the plaintiff enfaid, was lawfully poffeffed of a certain large quantity of turfs, to deavoured wit, one cart load of turfs; and being fo poffeffed thereof, he the take from him. faid J. I. at the faid time when, &c. with force and arms, at Kingfmoor aforefaid, did attempt and endeavour forcibly, and with a ftrong hand, and against the will of the faid John Ferguson, to take the faid turfs from and out of the poffeffion of the faid John Ferguson; whereupon the faid J. F. in prefervation of his faid turfs, and for the defence of his poffeffion thereof, did then and there gently lay his hands upon the faid J. I. and did then and there refift and oppofe the faid J. I. in his faid attempt and endea vour, as it was lawful for him to do: And the faid J. F. further faith, that if any damage or harm then and there happened to the faid J. I. it was occafioned by the faid attempt and endeavour of the faid J. I. and in defence of the property and poffeffion of the faid John Ferguson of his faid turfs, and to prevent the fame being taken and carried away by the faid J. I.; and this, &c.; wherefore, &c. JAMES WALLACE. And the faid John Irwing, as to the faid plea of the faid John Fergu Replication. fon by him above fecondly pleaded in bar as to the breaking and entering, &c. committed by the faid John Irwing by reason of any thing in that plea alledged (actio non); because he faith, that true it is that the said clofe called, &c. in the faid first Count of the faid declaration mentioned are, and at the said several times when, &c. and long before were one and the fame piece or parcel of land called as well by those several names as by the name of Gill Loaping, &c. and lying and being in Kingsmoor aforefaid, as the faid John Ferguson hath above in that plea alledged; but the faid J. I. further faith, that the faid John Fergufon at the faid feveral times when, &c. in the faid declaration first above mentioned, of his own wrong broke and entered the faid piece or parcel of land in which, &c, and with his feet in walking trod down, spoiled, and confumed the faid grafs there lately growing, and with horfes, &c. in the faid declaration first mentioned, eat up, depaftured, trod down, fpoiled, and confumed the faid other grafs there alfo growing, and with the wheels of carts, waggons, and other carriages, turned up and fubverted the faid foil there in the faid piece or parcel of land in which, &c. and thereout dug and got the faid turfs De injuria fuas &C. and flacks in the faid declaration firft mentioned, and the faid turfs and flacks thereout dug, took, and carried away, and converted and difpofed of the fame to his own ufe, in manner and form as Traverse ofcom- the faid J. I. hath above thereof complained against him; without mon of pafture. this, that the faid J. F. Richard, and Robert, and all those whose eftates they now have, and at the faid feveral times when, &c. had of and in the faid meffuage and land called Curigh Dyke, with the appurtenances, in that plea mentioned, from time whereof, &c. have had, and have been used and accustomed to have, and ftill of right ought to have common of pafture in the faid piece or parcel of land in which, &c. for all their commonable horses, &c. levant and couchant in and upon the said mefluage and land called Curigh Dyke, with the appurtenances, every year at all times of the year as to the fame meffuage and land, with the appurte nances, belonging and appertaining; and without this, that they the faid J. F. Richard, and Robert, and all thofe whofe eftates they now have, and at the said several times when, &c. had of and in the faid meffuage and land called Curigh Dyke, with the appurtenances, from time whereof, &c. have dug and taken, and have ufed and been 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 neceffary covering of the faid meffuage, with the appurtenances, and repairing the fences of the faid land of the faid J. F. Richard, and Robert, every year at all times of the year as often as occafion required as to the faid meffuage and land called Curigh Dyke, with the appurtenances, belonging and Traverfe of right appertaining; and without this, that they the faid J.F. Richard, and to dig flacks. Robert, and all those whofe eftates they now have, and at the faid feveral times when, &c. had of and in the faid meffuage and land called Curigh Dyke, with the appurtenances, from time whereof, &c. have dug and taken, and have used and been accustomed to dig and take flacks in and upon the faid piece or parcel of land in which, &c. for the neceffary covering of the faid meffuage, with the appurtenances, and repairing the fences of the faid land of the faid J. F. Richard, and Robert, every year at all times of the year as often as occafion required as to the faid meffuage and land called Curigh Dyke, with the appurtenances, belonging and Traverfe of right appertaining; without this, that the faid John Ferguson, Rich to dig turfs. ard, and Robert, and all thofe whofe eftates they now have, and at the said several times when, &c. had of and in the faid meffuage, with the appurtenances, from time whereof, &c. have dug and taken, and have been used and accustomed to dig and take, and still of right ought to dig and take turfs in and upon the faid piece or parcel of land in which, &c. for their necessary fuel to be burnt and confumed in their faid meffuage, every year at all times of the year as occafion required as to the faid meffuage and land called Curigh Dyke, with the appurtenances, belonging and ap pertaining, in manner and form as the faid John Ferguson hath in that plea above mentioned; and this, &c.; wherefore fince, &c. laft plea, de in. [Same replication to 3d Plea]: And the faid John Ferguson, as Replication to juria, 3 to to the faid plea of the faid J. F. by him fourthly above pleaded in bar, as to the affaulting, &c. faith, that the faid J. I. by reafon, &c. (precludi non); because he fays, that the faid J. F. at the faid time when, &c. at Kingfmoor aforefaid, of his own wrong, without the cause by the faid J. F. above in that plea alledged, affaulted, beat, wounded, and evil treated him the faid J. I. as he hath above thereof complained against him; and this he prays may be enquired of by the country, &c. [Similiter]. JAMES HEWITT, And the faid J. F. as to the faid plea of the faid J. I. above in Rejoinder, iffue reply pleaded to the faid plea of the faid J. F. by him fecondly on traverfes. above pleaded in bar, as to the breaking and entering, &c. above fuppofed to be committed (as before) faith, that the faid J. F. Richard, and Robert, and all thofe whofe eftates they now have, &c. &c. [Here infert the right to have common of pafture in manner and form as the faid J. F. hath above alledged]: And alfo they the faid J. F.. Richard, and Robert, and all thofe, &c. [Here infert the right to dig facks] in manner and form as the faid' J. F. hath above alledged: And alfo, &c. [The right to dig turfs] in manner and form as the faid J. F. hath above alledged;, and of this he puts himself upon the country, &c. [Similiter, fame rejoinder to replication to 3d Plea]; therefore, &c. As the plaintiff hath never exercifed any acts of ownership upon the locus in qe it will be necessary for him to go into the fact before the defendant need enter upon his defence. It is admitted upon the pleadings, that the defendants and his brothers are feifed in fee, and therefore not neceffary to be proved. The defendant must be prepared to prove that the occupiers of the estate which now belongs to him and his brothers, have always had common of pafture for their horfes, cows, oxen, and sheep, and have dug flacks for the purposes in the plea JAMES WALLACE. mentioned, and alfo turfs in the locus in The defendant ought to be prepared It may not be amifs to ferve the mayor of C. with afubfena duces tecum of the char ter, if he has the cuftody thereof; but I have a notion that the records are kept under three locks, the keys of which are kept by different perfons; if fo, the jubpœna should be directed to those persons, JAMES WALLACE, RIGHT OF WARREN, &c. AND the faid fir Theophilus further faith, that before the faid Defendart flifed first time when, &c. and alfo at the faid feveral times when, &c. of the manor. he the id fir Theophilus was and fill is feifed of and in the faid manor of Frankton, with the appurtenances, in his demeine as of fee, and that he the faid fir Theophilus, and all thofe whofe eftate he hath, and at the faid feveral times when, &c. had of and in the, Prefcription for faid over a free, war ren quo. faid manor, with the appurtenances, from time whereof the me mory of man is not to the contrary, have had and have used, and been accustomed to have and use, and the faid fir Theophilus ftill of right ought to have and use the free warren in and over the faid manor of Frankton, and in and over the faid clofes in which, &c. parcel, &c. to wit, at Frankton aforefaid, in the faid county; wherefore he the faid fir Theophilus, at the faid first time when, &c. and alfo at the said several times when, &c. with the faid dogs in the faid declaration mentioned, entered on the faid horfe, part of the faid cattle in the faid declaration mentioned, into the faid close in which, &c. parcel, &c. to ufe his free warrant there, and with his faid dogs hunted the faid game in the faid clofes in which, &c. to use his free warrant in and upon the faid close in which, &c. parcel, &c. as he lawfully might for the caufe aforefaid, and in fo doing he the faid fir Theophilus did neceffarily and unavoidably with his feet in walking tread down, trample upon, spoil, and confume a little of the grafs there then growing, and with the faid horfe trod down, trampled upon, fpoiled, and confumed a little other of the grafs then and there alfo growing in purfuit of the faid game in the faid clofes, parcel, &c. and with the feet of the faid dogs by fuch hunting tore up, damaged, and fpoiled a little other grafs there then alfo growing, he the faid for Theophilus doing as little damage on that occafion as he poffibly could, which are the faid feveral trefpaffes in the introduction to this plea mentioned, whereof, &c.; and this, &c.; wherefore, &c. And for a further plea in this behalf as to the breaking and entering, &c. by like In 41. Hen. 3. leave, &c. (actio non); because he fays, that long before the faid the prior of, &c. times when, &c. to wit, on the thirtieth of July, in the fortyfeifed of 1000 first year of the reign of Henry the Third, late king of England, 4th Plea. acres in F. the prior of the late difcovered priory or monaftery of the Bleffed Virgin Mary, in the city of Coventry, was feifed of divers, to wit, one thoufand acres of land, with the appurtenances, fituate and being at Frankton aforefaid, in the county aforesaid, in his demefne as of fee in right of faid priory or monaftery, whereof the faid clofes in which, &c. then were and ftill are parcel, and the faid prior being fo feifed thereof afterwards, and long before the faid times when, &c. the faid Henry the Third, late king of Hen. 3. by let- England, by his letters-patent fealed with his great feal of Enggranted to the land, bearing date at Litchfield, in the county of Stafford, on faid prior that he the thirtieth of July, in the forty-first year of his reign, fhould have free (which faid letters patent the faid fir Theophius now brings here ters. patent, warren. into court, the date whereof is the fame day and year above in that behalf mentioned) granted and confirmed to the said prior and convent of Coventry (amongst other things) that they and their fucceffors for ever thould have free warren in the faid demefne lands of Frankton aforefaid, among other lands belonging to the faid prior and convent, provided the faid lands were not within the bounds of any foreft belonging to the faid king, so that none should enter those lands, or chafe, or take any thing in them which belonged to the warren without the licence or confent of the faid priory or |