chains, locks, ftaples, and hinges, being affixed to the faid gates, in the faid declaration mentioned, hy means whereof the faid' James could not pafs in and along the faid way with the faid horfes, mares, and geldings of the faid James as they had a right and then had occafion to do, he the faid James at the faid times when, &c. in the faid first and laft Counts mentioned, for the removal of the Laid obftruction, in order to open a neceflary paffage, and to use the fame way with the faid horfes, mares, and geldings in the faid declaration mentioned, did neceflarily a little break open, and break to pieces a little of the faid gates, and fill up and destroy a little of the faid ditches, and proftrate and throw down a little of the faid fences then and there erected, ftanding, and being in the faid clofes in the faid declaration mentioned, and then and there neceffarily a little broke to pieces the faid chains, locks, ftaples, and hinges in the faid declaration mentioned, affixed to the faid gates in the faid declaration mentioned, as it was lawful for him to do in the faid cause aforefaid, and without the doing of which he the faid James could not have, ufe, or enjoy the fame way with the faid horfes, mares, and geldings of him the faid James, which are the fame trefpaffes in the introduction to this plea mentioned, whereof the faid Marmaduke hath above complained against the said Jaines; and this, &c.; wherefore, &c. F. BOWER.

brought his ac

ing down corn,

And the faid Marmaduke, as to the faid plea of the faid James Replication, fecondly above pleaded, fays, that he by reafon of any thing in that new affignment, plea alledged (precludi non); because he fays, that he exhibited that plaintiff his faid bill against the faid James not only for the faid trefpafs tion not only for above confeffed by the faid plea to have been committed by the trefpaffes confaid James on the occafion in that plea fpecified, but alfo for that feffd, but also the faid James, on the faid first day of January, and on divers other for breaking the days and times between that day and the day of exhibiting the bill cofe and treadof the faid M. with force and arms broke and entered the faid &c. otherwite clofes in the faid declaration mentioned, and with his fect in walk- than in ufing ing, and with the cattle in the faid declaration mentioned trod the faid way. down and confumed the grafs there growing of the value of twenty fhillings, otherwife than in ufing the faid way claimed by the faid James in that plea; wherefore inafmuch as the faid James has not made answer to the faid trefpafs above new affigned, he the faid M. prays judgment and his damages, on occafion of the faid trefpafs new

affigned, to be adjudged to him: And as to the breaking and en- And as to the tering the faid clofes in the faid plea fecondly above pleaded fpeci- trefpafis confied, and committing the faid other trefpafs confeffed by that plea fed, to have been committed on the occafion in that plea specified, the

faid Marmaduke fays, that (precludi non); because he fays the faid De iju ia fua. James of his own wrong committed the faid trefpafs, in manner

and form as the faid M. has above complained against him; with- Traverse of right out this, that the faid James [Same as in fecond plea] in manner of way. and form as the faid James has above in his faid plea alledged; and

this, &c.; wherefore he prays judgment and his damages, &c.

R 2

A. PALMER.

And

plication, issue on traverse.

Rejoinder, nen And the faid James, as to the faid trespasses above newly affignculp. to new af- ed, and by him above fuppofed to have been committed, fays, that fignment. he is not guilty thereof in manner and form as the faid Marmaduke hath above thereof complained against him; and of this he puts Rejoinder to re- himself upon the country, &c.: And the faid James, as to the faid plea of the faid Marmaduke by him above in reply pleaded in bar as to the faid feveral trefpaffes in the introduction to the faid plea of the faid James by him laftly above pleaded in bar mentioned by faid James above fuppofed to have been committed, and thereby juftified, fays, that the faid M. by reafon of any thing therein alledged (actio non); because he the faid James as before fays, that he the faid James [Same as in fecond plea to declaration], in manner and form as the faid James has above in his faid plea by him laftly above pleaded in bar alledged; and of this he puts himself upon the country, &c.

for

Drawn by MR. J. GRAHAM.

Plea (to trefpafs (ACTIO NON); because they say, that the faid clofe of the entering faid R. P. in which, &c. hath been contiguous and adjoining to clofe, pulling the river of T. which faid river of T. now is, and during all the down rails, &c.) that the river T. time aforefaid hath been a common navigable river for all the king's is a common ri- fubjects to pafs and repafs in and along the fame with their boats, ver for all the barges, and other veffels at all times at their free will and pleasure: king's fubjects, And the faid defendants further fay, that in, through, and over and that in locus the faid clofe in which, &c. on that fide thereof adjoining to the in quo there is a certain path or faid river there now is, and from time whereof the memory of way for the pur- man is not to the contrary, there hath been a certain towing path pofe of towing for all perfons whomfoever paffing and repaffing with boats, the boats, &c. of barges, and other veffels up the faid river, to go and pass on foot all perfons going and with horfes, mares, and geldings in the faid towing path, for the river, and the purpose of the towing of the faid boats, barges, and other the defendants, veffels up the faid river when and fo often as they fhall have had because the rails occafion fo to do; by reafon whereof they the faid defendants, bewere wrongfully ing fubjects of our faid lord the king, at the said several times path fo as to when, &c. having occafion to tow certain boats, barges, and

up and down

erected in the

obfruct

towing boats,

their other veffels in and along the faid towing path in the said close in their which, &c. did for that purpofe at the faid feveral times when, &c. pulled enter the faid clofe in which, &c. on foot and with horses, mares, them down, &c. and geldings to tow the faid boats, &c. up the faid river, and then and there for that purpofe did pafs on foot and with the faid horses, &c. in towing the faid boats, &c. in and along the faid towing path in which, &c. as it was lawful for them to do, and in fo doing, &c. doing as little damage on that occafion as they poffibly could;.. and because the faid rails in the faid declaration mentioned, at the faid time when, &c. were wrongfully and unjustly set up and placed in the faid close in which, &c. at the entrance into the fame, and fo greatly hindered and obftructed the said defendants from entering and coming into the said towing path in which, &c. with the faid hories, &c. for the purpose aforefaid, in such manner

aş

as they then of right ought to have done, they the faid defendants, at the faid feveral times when, &c. pulled down the faid rails fo wrongfully and unjustly erected, set up, and placed in and upon the faid entrance into the said towing path in the faid close in which, &c. and fo hindering and obftructing the faid defendants from coming and entering into the faid clofe in which, &c. with their horfes, &c. as it was lawful for them to do for the cause aforefaid, and in fo doing neceffarily and unavoidably a little spoiled and destroyed the fame, and took and removed the fame from the place where the faid rails had been so erected and fet up, and there left the fame for the ufe of the faid R. P. the fame being a proper and convenient place for that purpofe, doing as little damage there as they poffibly could on that occafion, which are the fame, &c.; and this, &c.; wherefore, &c. if, &c.: And for further plea 2d Plea, that (actio non); because they fay, that the faid close in which, &c. locus is adjoinnow is, and at the faid feveral times when, &c. and long before ing to a close of was contiguous and next adjoining on the eaft fide thereof to a which are both

the defendant's

before the faid

a

was

running from

certain close of the faid defendants called E. and that the faid clofe adjoining to the called Lower S. in which, &c. from time whereof, &c. until the river T. which feparation thereof hereafter mentioned was contiguous and next is a common adjoining towards the north to a certain other clofe now called river, and that Upper S. that the fame two clofes during all the faid time time when, &c. whereof, &c. have been, and ftill are adjoining to the river of T. the river over. which faid river now and during all the time aforefaid hath been flowed and a common navigable river for all our lord the king's fubjects to dam was erected pafs and repafs in and along the fame with their boats, &c. at all which washed away, times at their will and pleafure: And the faid defendants further and the fame fay, that before the faid time when, &c. to wit, on, &c. § at, &c. clofes have ever the said river of T. with great violence forced a channel or paf- fince been difage between the faid clofe called the Upper S. and the faid vided by water clofe called the Lower S. and feparated and divided the one the river, and from the other, and afterwards, to wit, on, &c. at, &c. a certain the ancient way dam was erected and made across the said channel or paffage be- for towing boats tween the fame two closes, which faid dam afterwards, to wit, on, being thereby &c. at, &c. was forced and washed away, and the fame two clofes impaffable dehave ever fince the faid dam was fo forced and washed away con- locus, the fame tinued separate and divided, and a great current of water from the being a converiver hath ever fince run and flowed through the fame channel and nient way, and paffage between the fame two closes, and the faid ciofe in which, because the rails &c. is now bounded and furrounded on all fides by the faid river were wrongfully, &c. of T. and the faid newly forced channel or paffage refpectively, fave and except on that fide of the clofe which is contiguous and next adjoining to the faid close of the said defendants called, &c. : And the faid defendants further say, that from time whereof, &c, there hath been and now is a certain towing path in and round the faid close in which, &c. from the fouth eaft corner thereof to that part thereof next to the faid close called Upper S. for all perfons whatfoever paffing and repaffing with boats, &c. along the faid river to go and país on foot and with horfes, &c. in the faid tow ing path for the purpose of towing veffels along the said rive (4) Banks of Navigable Rivers. R 3

when

fendants entered

when and as often as they had occafion fo to do: And the said de fendants further fay, "that from time whereof, &c. until the faid channel or paffage was forced as aforefaid between the faid clofe in which, &c. and the faid close now called the Upper S. and for a long time fince, to wit, during the continuance of the faid dam across the fame channel or paffage, there was a certain common way for all perfons whatsoever having occafion to tow any boats, &c. up and along the faid river to go and pass on foot and with horfes, &c. to the faid fouth east corner, for the purpose of towing up the faid barges, &c. there, and towing the fame along the faid river T. round the faid clofe in which, &c. to the faid clofe now called Upper S.:" And the faid defendants further say, that ever fince the faid dam has been fo forced and washed away as aforefaid, the faid ancient way into the faid clofe in which, &c. hath been wholly obstructed and cut off by means of the force, violence, and depth of the faid current flowing down the faid channel or paffage fo as aforefaid forced and made through and between the faid clofe called Lower S. in which, &c. and the faid clofe now called Upper S. fo that cattle cannot pass from the said clofe called Upper S. to the faid clofe called Lower S. in the faid common and ancient way there; wherefore inafmuch as the faid clofe in which, &c. is furrounded on all fides by the faid river T. and the faid newly forced channel or pallage refpectively, fave and except on that fide thereof which is contiguous to the faid close of faid defendant called E. and forafmuch as ever fince the said dam was fo forced and wathed away as aforelaid there has been no common way for perfons paling with boats, &c. along the faid river T. to go and país on foot and with horfes, &c. into the faid clofe called Lower S. in which, &c. to the faid fouth east corner thereof to the faid towing path there, for the purpofe of towing their faid boats, &c. along the faid river around the faid close in which, &c. to the faid clofe called Upper S. they the faid defendants at the faid several times when, &c. having occafion to go and pass into and along the faid towing path in the faid clofe in which, &c. on foot and with horfes, &c. for the purpose of towing certain boats, &c. along the faid river from the faid fouth east corner thereof round the fame clofe to the faid clofe now called Upper S. did of neceffity go and pafs on foot and with horfes, &c. from the faid clofe called E. over a certain dam there into the faid clofe of the faid plaintiff, in which, &c. at the faid fouth east corner thereof, and from thence into the faid towing path there, the fame being a proper and convenient way for that purpofe, and nearest to the faid towing path, and becaufe the faid rails and pofts in the faid declaration mentioned, at the faid feveral times when, &c. were erected, fixed, and placed in the faid clofe in which, &c. against the faid dam there, fo that the faid defendants could not pass on foot and with their horfes, &c. from the faid close called E. over the faid dam into the faid clofe in which, &c. to the faid towing path there, for the purpofe of towing the faid boats, &c. along the faid river, did pull up and throw down the said pofts

and

3d Plea.

and rails fo erected, placed, and fixed there, and did thereby neceffarily a little deftroy the faid pofts and rails, and left the faid pofts, &c. in the faid clofe in which, &c. near to the place where the fame were fo erected, &c. for the use of the faid plaintiff, and did go and pafs on foot, and with their horfes, &c. in and along the faid towing path in which, &c. for the purpose of towing the faid boats, &c. along the faid river, as it was lawful for them to do, and in fo doing, &c. which are the fame, &c. whereof, &c.; and this, &c.; wherefore, &c. if, &c.: And for further plea in this behalf as to the breaking, &c. (actio non); because they fay, that the faid clofe in which, &c. now is, and at the faid feveral times when, &c. and long before was contiguous and next adjoining on the east fide thereof to a certain close of the faid defendants called E. and that the faid clofe called Lower S. in which, &c. from time whereof, &c. until the feparation thereof hereafter mentioned, was contiguous and next adjoining to wards the north to a certain close now called Upper S. and that the fame two closes, at the time of the feparation thereof hereafter mentioned, and long before, were, and from thence hitherto have been and still are contiguous and next adjoining to the river of T. the fame being, and during all the time aforefaid having been a common navigable river for all our lord the king's fubjects to pass and repafs in and along the fame with boats, &c. at all times at their will and pleafure; by reafon whereof every fubject of this realm paffing along the faid river T. with his boats, &c. at the faid feveral times when, &c. had, and of right ought to have had, and yet ought to have the liberty and privilege of going and pasfing on foot, and with horfes, &c. in, along, and through the faid clofe in which, &c. on that fide thereof adjoining to the faid river T. for the purpofe of towing their faid boats, &c. along the faid river T. the fame during all that time having been an usual and accustomed towing path for that purpose: And the faid defendants further fay, that long before the faid time when, &c. to wit, on, &c. at, &c. [Same as in fecond Plea from § to || ]: And the faid defendants further, fay, that the ufual and accustomed way and entrance into the fame clofe in which, &c. until the faid channel or paffage was fo forced as aforefaid, the said close in which, &c. and the faid clofe called Upper S. and for a long time fince, to wit, during the continuance of the faid laft-mentioned dam across the faid channel the paffage was through and from the faid close now cal led Upper S. but fince the faid dam hath been fo forced and washed away as laft aforefaid, the fame way has been wholly cut off and rendered impaffable by the force, violence, and depth of the current running between the fame two clofes; wherefore inasmuch as there hath not been ever fince the faid laft-mentioned dam hath been fo forced and washed away, any other way or entrance into the said close in which, &c. but from the faid close of the faid defendants called E. fo as aforefaid being contiguous to the said clofe in which, &c. they the said defendants being fubjects of this realm, and having occafion to tow boats, &c. along the faid river of T. in order to gain a neceffary way and paffage into the faid close in which,

R4