Replication.

&c.

Traverfe highway.

of the faid Jacob; and the faid Jacob being fo feifed of the laid clofes, with the appurtenances,, and fo entitled to use the faid way as aforesaid, he the faid Jacob in his own right, and the faid John and James, as the fervants of the faid Jacob, and by his command as the faid feveral times when, &c. paffed and repaffed on foot and on horseback, and with the faid cattle from Modbury aforefaid into, throughout, and over the faid close in which, &c. in the fame laft-mentioned way unto the faid clofes of the faid Jacob, and back again from the faid clofes of the faid Jacob to Modbury aforefaid, for the convenient and neceffary ufe, occupation, and enjoyment of the faid clofes ufing the faid laft-mentioned way as it was lawful for them to do, and in fo doing they neceffarily and unavoidably, &c. &c. (as before) which are the fame, &c. whereof, &c.; and this, &c.; wherefore, &c.

GEO. WOOD.

And the faid plaintiff, as to the faid plea of the faid defendants by them fecondly above pleaded in bar as to the breaking, &c. committed by the faid defendants, fays, that he by reason, &c. (precludi non); becaufe he fays, that the faid defendants, at the faid De injuria fua, feveral times when, &c. of their own wrong broke and entered the faid clofe in which, &c. and with feet in walking trod down, fpoiled, and confumed the grafs there lately growing, and tore up, fubverted, and spoiled the foil there in the faid declaration mentioned, as the faid plaintiff hath above thereof complained against them; of without this, that in, through, and over the faid clofe in which, &c. there now is, and at the said several times when, &c. was, and from time whereof, &c. there hath been a common highway for all the liege fubjects of this realm to go, return, pafs, and repafs on foot, and on horfeback, and with cattle at all times of the year at their free will and pleasure from another common highway in the faid parish of S. aforefaid, leading from Kingfbridge to Dartmouth, in the faid county, to Modbury in the faid county, and back again from Modbury aforefaid to the faid laft-mentioned highway, as the faid defendants have in that plea alledged; and this, &c.; wherefore, &c.: [Traverse to third plea fame as foregoing]: And the faid plaintiff, as to the faid plea of the faid defendants by them laftly above pleaded in bar as to the breaking, &c. &c. committed by the faid defendants, fays, that he by reafon, &c. (precludi non); because he fays, that the faid defendants, at the said several times when, &c. of their own wrong broke and entered, &c. &c. Traverse ofright as the faid plaintiff hath above complained against them; without this, that the faid Jacob, and all thofe whofe eftate he now hath, and at the faid feveral times when, &c. had of and in the faid closes in plea mentioned, with the appurtenances, from time whereof, &c. have had, and have been used and been accustomed to have, and of right ought to have for himself and themfelves, his and their fervants, a way from Modbury, in the faid county, unto, into, through, and over the faid clofes in which, &c. to the faid clofes of the faid Jacob in that plea mentioned, and fo back again

To 4th Plea.

De injuria, &c.

of way.

from

from the faid clofes of the faid Jacob in that plea mentioned to Mod-
bury aforefaid, to go, return, pafs, and repafs on foot and on horse-
back, and with cattle every year at all times of the year at his and
their free will and pleafure, for the convenient ufe, occupation,
and enjoyment of the faid closes of the said Jacob in that plea men-
tioned, as the faid defendants have in their faid plea by them lastly
above pleaded in bar alledged; and this, &c. ; wherefore, &c.: And New
the faid plaintiff fays, that he the faid plaintiff brought his action ment.
aforefaid against the faid defendants as well for the faid trefpaffes by
the faid defendants above acknowledged to have been committed, as
for that the faid defendants at other times, on other occafions, and
for other purposes than in the pleas mentioned, and also out of the
faid fuppofed ways in the faid plea mentioned, broke and entered
the faid clofe of the plaintiff in the faid declaration mentioned, and
with their feet in walking trod down, fpoiled, and confumed the
grafs of the faid plaintiff there then lately growing to the value of
five pounds, and with cattle, to wit, horfes, &c. fpoiled and con-
fumed other the grafs of the faid plaintiff there then growing, to
the value of other five pounds, and tore, fubverted, and spoiled
the foil, to wit, two hundred perches of the foil of the faid plain-
tiff there, in manner and form as the said plaintiff hath above
complained against them, which are other and different trespasses
from the faid trefpaffes by the faid defendants fecondly, thirdly, and
laftly above pleaded in bar acknowledged to have been committed;
and this, &c.; wherefore fince the faid defendants have not answer-
ed the faid trefpaffes herein above newly affigned, the faid plaintiff
prays judgment and his damages, by reafon of the committing
thereof, to be adjudged to him, &c.

WILLIAM KEMPE.

affign

And the faid defendants, as to the faid plea of the faid plain- Rejoinder, iffa tiff by way of reply pleaded to the faid plea of the faid defendants on traverfe. by them fecondly above pleaded in bar (as before) fay, that through and over the faid clofe in which, &c. there now is, and at the faid feveral times when, &c. was, and from time whereof, &c. there hath been a common highway for all the liege fubjects of this kingdom to go, return, pafs, and repafs on foot and en horfeback, and with cattle at all times of the year at their free will and pleafure from another common highway in the parish of Shetford aforefaid, leading from Kingsbridge to Dartmouth, in the faid county, to Modbury, in the faid county, and back again from Modbury aforefaid to the faid laft-mentioned common highway, as the faid defendants have in their faid plea fecondly above pleaded in bar alledged; and of this they put themfelves upon the country, &c. [Like iffue on two laft traverfes]: And the faid defendants, as to the faid trefpafs above new affigned, fay, that they are not guilty thercof, in manner and form as the faid plaintiff hath above thereof complained against them; and of this, &c.

GEO. WOOD.

Non cul to new affignment.

SURRY,

Declaration for WILLIS

breaking and en

SURRY, to wit, Marmaduke Willis complains against of James Liptrot, clerk, being, &c.; for that the tering clofe, and LIPTROT. faid James, on the first day of January 1787, and deftroying fences, throwing on divers other days and times between that day and the day of down gates, and exhibiting this bill, with force and arms broke and entered the breaking ftaples, close of the faid Marmaduke called the Farm Yard, at Egham, in locks, chains, the faid county of Surry, and with his feet in walking trod down and hinges.

Plea; ft, general iffue.

and confumed the grafs of the faid Marmaduke to the value of forty fhillings, there lately growing, and with certain cattle, to wit, horfes, mares, and geldings, eat up, trod down, and confumed other grafs of the faid Marmaduke there lately growing to the value of other forty fhillings, and then and there proftrated and threw down forty perches of the fences of the faid Marmaduke there lately standing and being, and then and there filled up and deftroyed forty perches of the ditches of the faid Marmaduke there lately being in the faid clofe, and then and there broke open, broke to pieces, and deftroyed a certain gate of the faid Marmaduke there lately erected, and standing in the faid close, and then and there broke to pieces and deftroyed the chain, lock, ftaples, and hinges, to wit, one chain, one lock, two ftaples, and two hinges of the faid Marmaduke, then and there being affixed to the faid gate: And for that the faid James, on the faid first of January 1787, and on divers other days and times between that day and the day of exhibiting this bill, with force and arms broke and entered one other clofe called the Scrub Nursery, at Egham, in the faid county of Surry, and with his feet in walking trod down and confumed the grafs of the faid M. to the value of forty fhillings, there lately growing, and with certain cattle, to wit, horfes, mares, and geldings eat up, trod down, and confumed other grafs of the faid M. there lately growing, to the value of other forty fhillings, and then and there proftrated and threw down forty perches of the fences of the said M. there lately standing and growing in the faid faid laft-mentioned close, and then and there filled up and deftroyed forty perches of the ditches of the faid M. there lately being in the faid last-mentioned close, and then and there broke open, broke to pieces, and destroyed a certain gate of the faid M. there lately erected and standing in the faid laft-mentioned clofe, and then and there broke to pieces and deftroyed the chain, lock, ftaples, and hinges, to wit, one chain, one lock, two ftaples, and two hinges of the faid M. then and there being affixed to the faid gate, and other wrongs to the faid M. against the peace of our faid lord the king, and to the damage of the faid M. of twenty pounds; and therefore he brings fuit, &c. Pledges, &c.

And the faid James, by Thomas Graham his attorney, comes and defends the force and injury, when, &c. and fays that he is not guilty of the premifes above laid to his charge, in manner and form as the faid M. hath above thereof complained against him; and of this he puts himself upon the country, &c.:

And

And for further plea as to the breaking and entering the clofe ad Plea, juftifi called the Farm Yard, in which, &c. in the faid firft Count of the cation for a right faid declaration mentioned, and with his feet in walking treading of way through locus in quo, as down and confuming the grafs there lately growing, and with the vicar of E. from faid horfes, mares, and geldings eating up, treading down, and the highway to confuming other the grafs there lately growing, and proftrating his freehold clofe and throwing down the faid fences there lately standing and being, called, &c. and filling up and deftroying the ditches lately being in the faid clofe in which, &c. in the faid ift Count mentioned, and breaking open and breaking to pieces the faid gate there lately erected and standing in the faid close in which, &c. in the faid first Count of the faid declation mentioned, and breaking to pieces the chain, lock, ftaples, and hinges then affixed to the faid gate in the faid first Count of the faid declaration mentioned, and alfo as to the breaking and entering the faid other clofe called the Scrub Nursery, in the faid laft Count of the faid declaration mentioned, and with his feet in walking treading down and confuming the grafs there lately grow-. ing, and with the fard horfes, mares, and geldings eating up, treading down,and confuming other the grafs there lately growing, and proftrating and throwing down the fences there lately ftanding and being in the faid laft-mentioned clofe, and filling up and deftroying the faid ditches there lately being in the faid laft-mentioned clofe, and breaking open and breaking to pieces the faid gate there lately erected and being in the faid lait-mentioned clofe, and breaking to io non; bepieces the faid chain, locks, ftaples, and hinges there being affix- caufe defendant ed to the faid laft-mentioned gates, above fupposed to have been is vicar of Egcommitted by the faid James, he the faid James by leave of the court, &c. fays, that he the faid M. (actio non); because he says, And defendant that he the faid James long before, and at the said firft time when, as vicar of E. &c. and continually from thenceforth hitherto hath been, and ftill aforefaid feifed is vicar of the parish church of Egham aforefaid, in the faid county in his demefne of Surry, and that he the faid James long before and at the faid as of freehold in feveral times when, &c. was, and continually from thenceforth called Willf hitherto hath been, and still is seised in his demefne as of freehold worth, for and during the term of his natural life, as vicar of the said vicarage, of and in a certain clofe called Little Willworth, fituate and being in the parish of Egham aforefaid, in the faid county: And the faid James further fays, that he the faid James, and all and every his predeceffors, vicars of the faid vicarage for the time being, Prefeription by from time whereof the memory of man is not to the contrary, have vicar aforefaid had and have used, and been used and been accustomed to have for a way on foot and use, and during all the time aforefaid of right ought to have and on horfe had and have used, and the faid James, as vicar of the vicarage back, and with aforefaid, ftill of right ought to have and use for himself and them- hores, &c. at all felves, his and their farmers and tenants, occupiers of the faid king's highway clofe of him the faid James for the time being, a certain way from over locus in quo and out of a certain public king's highway leading from London unto Willsworth, to Bagfhot, in the faid county of Surry, into, through, and and to back a along a certain way or lane there adjoining to the church-yard of the church of Egham, unto, into, through, and over the said VOL. IX. R

clofe

ham.

a certain close

as

times from the

gain.

clofe called the Farm Yard, in which, &c. in the faid firft Count of the faid declaration mentioned, and unto, into, through, and over the said close called the Scrub Nursery, in which, &c. in the faid laft Count mentioned, unto and into the faid clofe of the faid James called Little Willfworth, and fo back again from thence by the fame way to the faid public king's highway, to go, pass, and repafs, on foot and on horfeback, with his and their horses, mares, and geldings, at all times at his and their free will and pleasure, for the ufe, occupation, and enjoyment of the faid close of the faid James called Little Willfworth, and for the perception of the produce thereof, as to the fame clofe of the faid James, with the And defendant appurtenances, belonging and appertaining: And the faid James being fo feifed of further fays, that he the faid James being fo feifed of the last aforefaid close, as fuch vicar of the vicarage as aforefaid, at the faid times when, faid feveral times when, &c in the faid first and laft Counts of &c. went, paf- the faid declaration mentioned, went, returned, paffed, and refed, &c. from paffed with the faid horfes, mares, and geldings in the faid declafaid king's high-ration mentioned, then being the horfes, mares, and geldings of way through locus in quo unto the faid James, from the public king's highway into, through, Willfworth and and along the faid way or lane unto, into, through, and over the fo back again, said clofe called the Farm Yard, in which, &c. in the said first

Willfworth as

vicar of E. at

Count of the faid declaration mentioned, and unto, into, through, and over the faid clofe called the Scrub Nursery, in which, &c. in the faid last Count mentioned, unto and into the faid clofe of the faid James called Little Willfworth, and fo back again from thence by the fame way to the faid public king's highway, the faid James during thofe times ufing his faid way there for the ufe, As it was law- occupation, and enjoyment of his faid clofe, as it was lawful for ful, &c. in fo him to do, and in fo doing he the faid James, at the faid feveral doing, &c. times when, &c. in the faid first and laft Counts mentioned, neceffarily and unavoidably with his feet in walking, and with the feet of the faid horfes, mares, and geldings trod down and confumed a little of the grafs lately growing in the faid feveral clofes in which, &c. in the faid way there, the faid horfes, mares, and geldings in the faid firft and laft Counts of the faid declaration mentioned, at the faid time in the faid feveral times when, &c. in fo paffing and repaffing in, through, and over the faid feveral clofes in which, &c. in the faid first and laft counts mentioned, and in the faid way there by stealth and by morfels, and against the will of the faid James, fnatched, cropped, and eat a little other of the grafs there growing in the faid feveral clofes in which, &c. in the laid firft and laft Counts mentioned, in the faid way there and And because the on the fides thereof; and becaufe the faid way of him the faid way was ob- James in the faid feveral clofes in which, &c. in the faid first and structed by the laft Counts mentioned, at the faid feveral times when, &c. in the gates in declarafaid first and fecond Counts mentioned was stopped up and obftructdefendant pulled ed by the faid fences, ditches, and gates, erected, ftanding, and beshem down, &c. ing in the faid feveral clofes in which, &c. in the faid first and last Counts mentioned, in and acrofs the faid way there, and the faid gates were there then fhut, locked, and faltened with the faid

tion mentioned,

chains,