let a jury thereupon come before our lord the king at Westmin

next after

fter
by whom, &c. and who nei-
ther, &c. to recognize, &c. becaufe as well, &c. the fame day
is given to the faid parties there, &c.

At trial, Summer Affizes 1786, be fore, Lord Loughborough, plaintiff had a verdict with fmall damages for the taking

the bop poles only, which defendants had
not, nor could justify.

SPRIGHT AND the faid Thomas, by Richard Shawe his Plea ift, not against attorney, comes and defends the force and injury guilty. BAINBRIDGE. when, &c. and fays that he is not guilty of the feveral trefpaffes aforefaid above laid to his charge, or any or either of them, in manner and form as the faid William hath above thereof complained against him; and of this he puts himself upon the country: And for further plea as to the breaking and entering 2d Plea, that the the faid close in the faid firft Count of the faid declaration men- defendant is feifed of a houfe tioned, and in which, &c. and with his feet in walking treading near locus. Predown, trampling upon, confuming, and fpoiling the grafs there feription todraw then growing and being, above fuppofed to have been done by the water out of a faid Thomas, he the faid Thomas, by leave of the court here for well, and a way this purpose firft had and obtained, according to the form of the to the well over locus; that in ftatute in fuch cafe made and provided, fays, that the faid Wil- fetching the waliam ought not to have or maintain his aforefaid action thereof ter he unavoidagainst him; because he fays, that he the faid Thomas, before and ably, &c. &c. at the faid several times when, &c. in the faid firt Count mentioned was, and from thence hitherto hath been and still is feifed in his demefne as of fee of and in a certain ancient meffuage or dwelling-house fituate in the parish and county aforefaid near to the faid clofe in the faid first Count of the faid declaration mentioned, and in which, &c. and during all that time was and ftill is the occupier of the faid mefluage or dwelling-houfe, and that he the faid Thomas, and all those whofe eftate he now hath, and at the said several times when, &c. in the faid firft Count mentioned had of and in the faid meffuage or dwelling-houfe, with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have had and have used, and been accuftomed to have, and still of right ought to have and use for and by himself and themfelves, his and their farmers and tenants, occupiers of the faid metiuage or dwelling-houfe, with the appurtenances, for the time being, the liberty and privilege of drawing and fetching water from a certain well or fpring of water fituate and being in the faid clofe in the faid firft Count of the faid declaration mentioned, and in which, &c. every year at all neceffary and convenient times of the year at his and their free will and pleafure; and that for that purpose be the faid Thomas, and all thofe whofe eftate he now hath, and at the faid feveral times when, &c. bad of and in the faid meffuage or dwelling-house, with the appurtenances, for the time being, 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 had, and fill of right ought to have for him elf and themselves, his and their farmers and tenants, occupiers of the faid mfuage or dwelling-houfe, a certain way from the faid meffuage or dwelling-house, with the appurtenances, of him the faid Thomas unto and into, through, over, and along the faid clofe in the faid first Count of the faid declaration mentioned, and in which, &c. unto the faid well or spring of water there, and from thence fo back again in the faid way there to the faid mefuage or dwelling-houfe of the faid Thomas, to go, return, pass, and repafs on foot and at all neceffary and convenient times of the year at his and their free will and pleasure, as belonging and appertaining to the faid meffuage or dwelling-houfe of him the faid Thomas, for which reafon he the faid Thomas being fo feised of and in the faid mefluage or dwelling-houfe, with the appurtenances, and being alfo the occupier of the faid meffuage or dwelling-houfe, with the appurtenances, and fo entitled to the liberty and privilege of drawing or fetching water from the faid well or fpring of water in the faid clofe in the faid first Count of the faid declaration mentioned, and in which, &c. as aforefaid, and to fuch way, and from the faid well or spring of water as aforefaid, at the faid feveral times wher, &c. the fame being neceflary and convenient times of the year for that purpose, and the faid Thomas then and there wanting water from the aforefaid well or spring of water, entered into the faid clofe in the faid firft Count of the faid declaration mentioned, and in which, Sc. and went, returned, pojfed, and repaffed on foot in, through, over, and along the fame in the faid way there towards ani to and from the faid well or jpring of water there, in order and for the purpofe of drawing and fetching water from the faid well or fpring of water there, as he lawfully might for the caule aforesaid, and in fo doing he the faid Thomas with his feet in walking neceffarily and unavoidably trod down, trampled upon, confumed, and fpoiled a little of the grafs there then growing in the faid clote in the faid way there, doing as little damage to the faid William as on that occalion he poffibly could, which is the fame trefpafs in the introductory part of this plea mentioned, whereof the faid William hath above complained against him the faid Thomas; and this he the faid Thomas is ready to verify; wherefore he prays judgment if the faid William ought 3d Plea, licence. to have or maintain his aforefaid action against him: And for further plea as to the breaking and entering the faid clofe in the said first Count of the faid declaration mentioned, and in which, &c. and with his feet in walking treading down, trampling upon, confuming, and fpoiling the grafs of the laid W. there then growing and being, above fuppofed to be done by the faid Thomas, he the faid Thomas, by like leave of the court here for this purpose first had and obtained, according to the form of the ftatute in fuch cafe made and provided, fays, that he the faid William ought not to have or maintain his aforefaid action thereof against him; because he fays, that he the fid Thomas, before and at the faid feveral times when, &c. in the faid firft Count mentioned, was, and from thence hitherto hath been and ftill is feifed in his demefne as of fee, &c. &c. [Go

on

4th Plea,

on fame as before, only omitting what is in Italic]: And for further plea as to the breaking and entering the faid clofe in the faid firft Count of the faid declaration mentioned, and with his feet in walking treading down, trampling upon, confuming, and spoiling the grafs there then growing and being, and in the faid first Count in that refpect mentioned, and with cattle eating up, depafturing, treading down, trampling upon, confuming, and spoiling the faid other grafs there, and in the faid firft Count in that respect mentioned above supposed to have been committed by the faid Thomas, he the faid Thomas, by like leave of the court here for this purpose first had and obtained, according to the form of the ftatute in such case made and provided, fays, that the faid William ought not to have or maintain his aforefaid action thereof against him; becaufe he faith, that he the faid Thomas, at the faid several times when, &c. in the faid firft Count mentioned, by the leave and licence, permiffion, and confent of the faid William to him for that purpose first given and granted, to wit, at the parifh aforefaid, in the county aforefaid, broke and entered the faid close in the faid firft Count of the faid declaration mentioned (1), and with feet in walking trod down, trampled upon, con- (1)" and in fumed, and spoiled the faid grafs there then growing, and in the which, &c." faid first Count of the faid declaration mentioned in that respect mentioned, and with thofe cattle in the faid firft Count mentioned eat up, depastured, trod down, trampled upon, confumed, and spoiled the faid other grafs in the said first Count in that refpect mentioned, as he lawfully might for the caule aforelaid, which is the fame trefpafs, &c. [Conclude as before]: And for further plea as 5th Plea, libe. to the breaking and entering the faid clofe in the faid fecond Count of the faid declaration mentioned, and with feet in walking treading down, &c. the grafs there then growing, and in the said second Count in that refpect mentioned, and with the faid cattle in the faid fecond Count mentioned eating up, &c. the faid other grafs there then growing, and in the faid fecond Count in that refpect mentioned, breaking down, pulling down, proftrating, and deftroying the faid other gates, hedges, and fences in that Count mentioned, there then erected, ftanding, and being, and in the faid fecond Count mentioned, and the materials thereof coming, taking, and carrying away, and converting and difpofing thereof to his own use above supposed to have been done by the faid Thomas, he the laid Thomas, by like leave of the court here for this purpose first had and obtained, according to the form of the ftatute in fuch cafe made and provided, fays, that the faid William ought not to have or maintain his aforefaid action thereof against him; because he says, that the faid close in the faid fecond Count mentioned, and in which, &c. now is, and at the faid feveral times when, &c. in the faid fecond Count mentioned, was the close, foil, and freehold of him the faid Thomas, for which reafon he the faid Thomas, at the faid feveral times when, &c. in the faid fecond Count of the faid declaration mentioned, broke and entered the faid clofe in that Count mentioned, and in which, &c. as being the foil, clofe, and freehold

rum tenementum.

6th Plea.

of him the faid Thomas, and with feet in walking, &c. the grafs there then growing and being, and in the faid fecond Count in that refpect mentioned, and with cattle eat up, &c. the faid other grafs there then growing and being, and in the faid fecond Count in that refpect mentioned, as being the grafs of the faid Thomas refpectively growing and being in the faid clofe, foil, and freehold of him the faid Thomas, and broke down, &c. the said gates in that Count mentioned, there then erected, &c. and in the faid fecond Count mentioned, and the materials thereof coming took and carried away, and converted and difpofed thereof to his own ufe, as being the gates, hedges, fences, and materials of the faid Thomas as he lawfully might for the cause last aforesaid, which is the fame fuppofed trefpafs in the introductory part, &c. [Conclude as before]: And for further plea as to the breaking and entering the faid close in the faid fecond Count of the faid declaration mentioned, and with his feet in walking, &c. the grass there then growing and being, and in the faid fecond Count in that refpect mentioned, and with the faid cattle in the said second Count mentioned eating up, &c. the faid grafs there then growing and being, and in the faid fecond Count in that refpect mentioned above fupposed to have been done by the faid Thomas, he the said Thomas, by like leave of the court here for this purpose first had and obtained, according to the form of the ftatute in fuch cafe made and provided, fays, that the faid William ought not to have or maintain his aforefaid action thereof against him the faid Thomas; because he fays, that he the faid Thomas, before and at the faid feveral times when, &c. in the faid fecond Count in the faid declaration mentioned, was, and from thence hitherto hath been and ftill is feifed in his demefne as of fee of and in the faid clofe in the faid fecond Count mentioned, and in which, &c. and with the appurtenances, and being fo feifed thereof he the faid Thomas, before any of the faid times when, &c. in the faid Count mentioned, to wit, on, &c. in, &c. at, &c. by a certain indenture then and there made between him the faid Thomas of the one part, and the faid William of the other part (one part of which faid indenture, fealed with the feal of the faid William, and bearing date the day and year laft aforefaid, he the faid Thomas now brings into court here), did demife, lease, fet, and to farm-let unto the faid William, his executors, adminiftrators, and affigns, a certain farm confifting of a meffuage and of certain lands and of other premises in the faid indenture mentioned, and whereof the said close in the faid fecond Count of the faid declaration mentioned, and in which, &c. was and is part (except and always referving unto him the faid Thomas, his heirs and affigns, amongst other premifes, the faid clofe in the faid fecond Count of the faid declaration mentioned, and in which, &c. from Lady Day till the ninth day of November in every year during the term thereafter mentioned), to have and to hold the faid demifed premifes, with the appurtenances (except as before excepted), unto the faid William, his executors, adminiftrators, and affigus, for and during

and unto the full end and term of twelve years, to commence as follows, &c. &c. from thenceforth refpectively enfuing and fully to be complete and ended, at and under the rents and covenants in the faid indenture mentioned, as by the faid indenture of lease (relation being thereunto had) may (amongst other things) more fully and at large appear; by virtue and under colour of which faid demise he the faid William, before any of the faid times when, &c. in the faid fecond Count of the faid declaration mentioned, entered into the faid premifes fo demifed as aforefaid, whereof the said clofe in the faid fecond Count of the faid declaration mentioned, and in which, &c. was and is parcel as aforefaid, and became and was poffeffed thereof, and fo remained and continued from thence. until and at the said several times when, &c. in the faid fecond Count of the faid declaration mentioned, at which faid feveral times when, &c. in the faid Count mentioned, the fame being between Lady day and the ninth day of November, in the said year of 1785, and the feveral fubfequent years between that year and the exhibiting the bill of the faid William, he the faid Thomas, under and by virtue of the faid exception and reservation out of the faid demife as by him made to the faid William as aforesaid, entered into the faid clofe in the faid fecond Count of the faid declaration mentioned, and in which, &c. and with his feet in walking trod down, &c. the faid grafs in the faid fecond Count of the faid declaration mentioned, and in which, &c. and with the faid cattle in the faid fecond Count mentioned eat up, &c. the faid other grafs in that Count mentioned, as he lawfully might for the cause aforefaid, which is the fame trefpafs, &c. &c. [Conclude as before]: And for further plea as to the breaking and entering, &c. &c. [Go 7th Plea. on with this plea faine as the fourth, omitting what is in Italic, and inferting what is in the margin, and obferving to make it the fecond Count instead of the first]: And for further plea as to the 8th Plea, leave breaking and entering the faid barn in the faid third Count of the and licence. faid declaration mentioned, and in which, &c. and feizing and taking the faid goods and chattels in that Count alfo mentioned, and carrying the fame away, and converting and difpofing thereof to his own ufe, above supposed to have been committed by the faid Thomas, he the faid Thomas, by like leave of the court here for this purpote first had and obtained, according to the form of the ftatute in fuch cafe made and provided, fays that the faid William ought not to have or maintain his aforefaid action thereof against him, because he fays, that he the faid Thomas, at the faid feveral times when, &c. in the faid third Count mentioned, by the leave, licence, permiffion, and consent of the faid William to him for that purpose first given and granted, to wit, at, &c. in, &c. broke and entered the faid barn in the laid third Count of the faid declaration mentioned, and in which, &c. and feized and took the faid goods and chattels in the faid third Count alfo mentioned, and carried the fame away, and converted and difpofed to his own ufe, as he lawfully might for the caufe aforefaid, which is the fame trefpafs in the, &c. &c. [Conclude as before]: And for further 9th Pleas

plea