fame court amerced to one pound one fhilling; which faid amercia ment was afterwards, to wit, at the court of view of frankpledge of the faid O. B. of his aforefaid manor holden for the faid manor at the house of Vincent Williams, known by the fign of the Mitre, fituate and being within the faid manor according to the cuftom of the faid manor, within one month next after the feaft of the Annunciation of the Bleffed Virgin Mary, to wit, on the twenty-fourth of April 1782, before the faid E. W. gentleman (he the faid E. W. then and there being fuch steward as aforefaid by J. S. and J. W. they the faid J. S. and J. W. then and there being affeerors at the faid laft-mentioned court, and then and there for that purpose being duly elected and fworn, affeered and affirmed to the fum of one pound one fhilling, whereof the said plaintiff afterwards, to wit, on, &c. had notice, to wit, at, &c. and was then and there required by the faid J. Cooper, then bailiff of the faid O. B. of the faid manor, to pay to the faid O. B. the faid amerciament so affeered as aforefaid, which the faid plaintiff then and there from thenceforth hitherto hath refused to pay to the said O. B.; and thereupon the faid E. W. afterwards, to wit, on the fourteenth day of May 1782, at, &c. he the faid E. W. then and still being the faid fteward of the faid O. B. of the faid court as aforefaid, and the faid fum of one guinea so then being unpaid, made his certain precept in writing under his hand to the faid J.Cooper, who then and upon, &c. thenceforth hitherto hath been and ftill is the bailiff of the faid O. B. of the faid manor; by which faid precept the faid E. W. commanded the faid J. Cooper (amongst other things) to levy by diftrefs of the goods and chattels of the faid plaintiff in the faid precept called J. Cunningham the faid amerciament of one guinea, and that the faid J. Cooper fhould anfwer thereto when thereto required; by virtue of which faid precept the faid J. Cooper fo being bailiff as aforefaid, and the faid W. L. &c. as his fervants, and in his aid and affiftance for the due execution of the faid precept afterwards, to wit, on the fame, &c. in the faid declaration mentioned, because the said plaintiff had not paid the faid sum of one guinea peaceably and quietly, entered into the faid meffuage or dwelling-houfe through the outer door thereof, the fame door then and there being open, and then and there feized the faid goods and chattels in the faid declaration mentioned, then and there found within the faid mefluage or dwelling-house within the faid manor, and within the faid precincts of the faid court for and in the name of a diftrefs for the faid one pound one fhilling for the faid amerciament fo being in arrear and unpaid as aforefaid, and carried away the fame, and kept and detained the fame, and still keeps and detains the fame as a diftrefs for the faid amerciament, he fame ftill remaining unpaid according to the exigency of the faid precept, as it was lawful for them to do for the cause aforefaid, and in fo doing they the faid defendants did neceffarily make a little noife and disturbance in the faid meffuage or dwelling-house, VOL. IX. Τ and and ftaid and continued therein making and continuing fuch little noise and disturbance for the space of time in the faid declaration in that behalf mentioned, and did thereby a little incommode and interrupt the faid plaintiff in the poffeffion, ufe, and occupation of his faid meffuage or dwelling-houfe, doing as little damage as they poffibly could on the occafion aforefaid, which are the fame breaking and entering the faid meffuage or dwelling-house in the faid declaration mentioned, and making noife and difturbance in the faid house, and staying and continuing therein, making and continuing fuch noife and difturbance therein for the said space of time in the faid declaration mentioned, and feizing and taking the faid goods and chattels in the faid firft Count of the faid declaration mentioned, and carrying away the fame, and incommoding and interrupting the faid plaintiff in the poffeffion, use, and occupation of his aforefaid meffuages or dwelling-house, and feizing and taking the faid goods and chattels in the faid fecond Count of the faid declaration mentioned, and keeping and detaining the fame for the faid space of time in that Count alfo mentioned, and feizing and taking of the faid goods and chattels in the faid third Count of the faid declaration mentioned, and carrying away the fame, whereof the faid plaintiff hath above complained against the faid defendants; and the faid defendants aver, that the faid perfon fo elected and appointed by the name of J. Cunningham to be one of the conftables within the faid manor, and refuted to be fworn into the said office, or ferve the faid office as aforefaid, and who was fo reprefented amerced as aforefaid, the faid perfon called and named in the faid precept J. C. and the faid J. C. are one and the fame perfon, and not divers or different, to wit, at the parish aforesaid in the faid county; and this the faid defendants, &c. ; wherefore, &c. THO. WALKER. GEO. WOOD. Michaelmas Term, 23. Geo. III. Replication, And the faid John Cunningham, as to the faid plea of the faid protesting infuf- defendants by them firft above pleaded, and whereof they have ficiency, de inju put themselves upon the country, doth the like, &c.: And as to ria fua propria the faid plea of the faid defendants by them fecondly above pleadabfque tali caufa; and traverfe of ed in bar as to the trefpafs in the introduction thereof mentioned, plaintiff's refu- and thereby attempted to be juftified, fays, that notwithstanding fal to be fworn. any thing in that plea alledged (precludi non) in refpect of the faid trefpafs therein mentioned against them the faid defendants; becaufe protesting that the faid plea about the matters therein con. tained, in manner and form as the fame are above alledged and fet forth, are infufficient in law to preclude from having, &c. in refpect to the faid trefpafs in the faid plea mentioned against them the faid defendants; protesting alfo, that no fuch prefentment as in the faid plea mentioned was ever made to the faid court of view of frankpledge in the faid plea mentioned; protefting also, that the said plaintiff had never any notice of the faid amerciament and 3 affeer affeerment in the faid plea mentioned, or either of them, and that he was never requested to pay the faid amerciament as in the faid plea is alledged; protefting alfo, that no fuch precept as in the faid plea is mentioned was ever made by the faid E. W. in the faid plea mentioned to the faid J. Cooper, in manner and form as the faid defendants have above in their faid plea by them fecondly above pleaded in bar alledged; for replication in this behalf the faid plaintiff fays, that the faid defendants, on, &c. at, &c. of their own wrong broke and entered the faid meffuage or dwelling-house in the faid declaration mentioned, and made a noife and disturbance therein for the said space of time in the said declaration mentioned, and feized and took the faid goods and chattels in the said firft Count of the faid declaration mentioned, and took and carried away the fame, and incommoded and interrupted the faid plaintiff in the poffeffion, use, and occupation of his aforefaid meffuage or dwelling-house, and also feized and took the faid goods and chattels in the faid fecond Count of the faid declaration mentioned, and kept and detained the fame for the faid fpace of time in that Count alfo mentioned, and also took and feized the faid goods and chattels in the faid third Count of the faid declaration mentioned, and carried away the fame in manner and form as the faid plaintiff hath above thereof complained against them; without this, that he the said plaintiff refused to be sworn into the faid office into which he was fo elected and appointed as aforefaid, or to ferve the faid office in manner and form as the faid defendants have above in the faid plea by them fecondly above pleaded in bar as aforefaid alledged; and this, &c.; wherefore he prays judgment and his damages, by reafon of the faid trefpafs in the faid fecond plea of the faid defendants hereinbefore mentioned, to be adjudged to him, &c. NASH GROSE. And the faid defendants, as to the faid plea of the faid plaintiff Rejoinder, iffue by him above pleaded in reply to the faid plea of the faid defendants on traverfe. by them fecondly above pleaded in bar, as to the faid fuppofed trefpaffes in the introduction thereof mentioned and thereby juftified, fay, that the faid plaintiff, by reafon of any thing by him in his plea alledged (actio non) in respect to the fuppofed trefpafs in the faid plea fecondly above pleaded in bar mentioned; because they as before fay, that the faid plaintiff did refuse to be fworn into the faid office into which he was fo elected and appointed as aforefaid, and to ferve the faid office in manner and form as the faid defendants have, &c.; and of this, &c. THO. WALKER, This caufe was tried before lord Mansfield, Summer Affizes 1783, and verdict for defendants. The plaintiff moved an arreft of judge ment on the ground of several cbjections winch were made to the fpecial plea, and the fame was twice argued very elabo◄ T 2 Michael Michaelmas Term, 19. Geo. III. Plea ift, gene. MAW AND ANOTHER ral iffue; 2d, that plaintiff took the cattle damage feafant, against KELSEY. DECLARATION for breaking and entering clofe, &c. as covered in the plea. and impounded First Plea, general iffue: And for further plea in this behalf them as a diftrefs as to the breaking up, depafturing, treading down, trampling upfor the damage: on, confuming, and fpoiling with the faid cattle in the faid decla ration mentioned the faid grafs in the faid declaration fecondly mentioned then growing and being in the faid forty acres of land called the Carr Ground, otherwife the Participart Ground of the faid Robert in the faid declaration mentioned, the faid defendant by leave, &c. fays, that the faid plaintiff (actio non); because he says, that the faid plaintiff, at the time when the faid cattle were eating up, depafturing, treading down, trampling upon, confuming, and fpoiling the faid grafs and corn in the faid declaration fecondly mentioned in the faid place in the said declaration mentioned in which, &c. took the faid cattle doing damage there, and impounded them as a diftrefs for the faid damage, to wit, at the parish afored plea, that faid; and this, &c. wherefore, &c.: And for further plea in this plaintiff tookthe behalf as to the eating up, &c. &c. the faid defendant, by like cattle damage leave, &c. fays, that the faid plaintiff (actio non); because he fays, pounded them in that the faid plaintiff, at the time when the faid cattle were eata certain pound ing up, &c. &c. the faid grafs and corn in the faid declaration fe as a diftrefs for condly mentioned in the faid place in the faid declaration in which, the damage, and &c. took the faid cattle doing damage there, and impounded the kept them fo fame in a certain pound there as a diftrefs for the faid damage, and feafant, and im impounded un fent. and impounded vied. til releafed by kept and detained the fame cattle fo impounded until the fame were plaintiff's con. releafed and difcharged from and out of the faid pound by and with the confent of the faid plaintiff, to wit, at, &c.; and this, 4th Plea, that &c. ; wherefore, &c.: And for further plea in this behalf as to the plaintiff took eating up, &c. &c. the faid defendant, by like leave, &c. fays, the cattle da- that the faid plaintiff (actio non); because he fays, the faid plainmage feafant, tiff, at the time when the faid cattle were eating up, &c. the them til reple- faid grafs and corn in the faid declaration fecondly mentioned in the faid plea in the faid declaration mentioned, in which, &c. took cattle there doing damage there, and impounded the fame as a diftrefs for the damage, and kept and detained the faid cattle fo impounded until the fame were replevied, to wit, at, &c.; and this, &c.; wherefore, &c. [Fifth plea prefcribes in right of a freehold meffuage or tenement, in which defendant is feifed for common of pafture for all commonable cattle at all times upon a common called Oufton, and contiguous to the locus, and divided from it by certain dikes and fences which immemorially have been and are maintainable and repairable by the owners and occupiers of the locus, that the fame were ruinous, and that defendant's cattle escaped from the common through the defect of the dikes and hedges into the locus, and committed the trefpaffes; 6th Plea, fame as to another common called Haxey.] FOSTER BOWER. And mained im fent. of his own And the faid plaintiff, as to the faid plea of the faid defendant Replication to by him fecondly above pleaded in bar as to the eating up, &c. &c. 2d plea, that by the faid defendant above acknowledged to have done, fays, that he whilft cattle reby reafon of any thing in that plea above alledged (precludi non); pounded, defen because he says, that true it is that he the faid plaintiff, at the time dant led them when the faid cattle were eating up, &c. the faid grafs and corn away without in the faid declaration fecondly mentioned, in the faid place in the plaintiff's confaid declaration mentioned in which, &c. took the faid cattle do→ ing damage there, and impounded the fame as a diftrefs for the faid damage, as the faid defendant in his faid fecond plea by him fecondly above pleaded in bar hath alledged; but the faid plaintiff further fays, that after the faid impounding of the faid cattle for the faid damage, and whilft the fame fo remained fo impounded, and before the exhibiting of the faid bill of the faid plaintiff, to wit, on the first of August 1778, the faid defendant took and led away the faid cattle from and out of the faid pound without the licence and confent of the faid plaintiff, and against his will, without making any fatisfaction to the faid plaintiff for the damage done by the faid cattle, or replevying the faid cattle by due courfe of law, to wit, at, &c.; and this, &c.; wherefore the faid plaintiff, inasmuch as the faid defendant hath above acknowledged the committing of the trefpafs aforesaid, prays judgment and his damages, by reafon of the committing of that trefpafs, to be adjudged to him, &c. And To the 3d plea, the faid plaintiff, as to the faid plea of the faid defendant by him that defendant, thirdly above pleaded as to eating up, &c. by the faid defendant wrong, took and above acknowledged to have been done, fays, that he by reafon, led away thecat&c. (precludi non); because he says, that true it is that the faid the out of the plaintiff, at the faid time when the faid cattle were eating up, &c. pound; with a the faid grafs and corn in the faid declaration fecondly mentioned, cattle's being in the faid place in the faid declaration mentioned, in which, &c. d.fcharged out of took the faid cattle doing damage there, and impounded the fame the pound with in a certain pound as a diftrefs for the faid damage, as the faid de- plaintiff's con fendant hath in his faid third plea above alledged; but the faid fent. plaintiff further faith, that after the faid impounding of the faid cattle, and whilst the fame remained fo impounded as aforesaid, and before the exhibiting of the bill of the faid plaintiff, to wit, on the faid first of August 1778, at, &c. the faid defendant of his own wrong took and led way the faid cattle from and out of the faid pound; without this, that the faid cattle were released and difcharged from and out of the faid pound by and with the confent. of the laid plaintiff, in manner and form as the faid defendant hath in his faid third plea above alledged; and this, &c.; wherefore, &c. And the faid plaintiff, as to the faid plea of the faid defend Tothe 4th plea, ant by him fourthly above pleaded in bar as to eating, up, &c. by of his the faid defendant above acknowledged to have been done, fays, wrong, took and that by reafon of, &c. (precludi non); because he fays, that true led away the it is that the faid plaintiff, at the time when the faid cattle were cattle out of the eating up, &c. the faid grafs of the faid plaintiff in the faid decla- pound; with a ration fecondly mentioned in the faid place in the faid declaration traverte of the cattle's being I 3 traverfe of the that defendant, mentioned, replevied. own |