mentioned, in which, &c. took the faid cattle doing damage there,
and impounded the fame in a certain pound as a diftrefs for the faid
damage, as the faid defendant hath in his faid fourth plea above
alledged; but the faid plaintiff further fays, that after the faid im-
pounding of the faid cattle, and whilft the fame remained fo im-
pounded as aforefaid, and before the exhibiting, &c. to wit, on, &c.
at, &c. the faid defendant of his own wrong took and led away
the faid cattle from and out of the faid pound; without this, that the
faid cattle were replevied in manner and form as the said defend-
ant hath in his faid plea fourthly above pleaded in bar alledged;
and this, &c.; wherefore, &c. [Replication to fifth plea, that
defendant of his own wrong committed the feveral trefpaffes; with
a traverse of the cattle efcaping from Oufton through the defect
of dike and fences. Same replication to the fixth plea as to the
Haxey Common.]
A. CHAMBRE.

Eafter Term, 19. Geo. III.

Rejoinder, that And the faid defendant, as to the faid plea of the faid plaintiff the cattle were by him above in reply pleaded to the faid plea of the faid defendant releafedbyplain by him fecondly above pleaded in bar as to the eating up, &c. &c. tiff's confent, by the faid defendant above fuppofed to be acknowledged to have they were re- been done, fays, that the faid plaintiff, by reafon of any thing leafed without therein above alledged (actio non); because he fays, that the faid

his confent.

traverfe.

cattle, after the fame had been taken and impounded for the faid supposed damage as aforefaid, were releafed and discharged from and out of the faid pound by and with the confent of the said plaintiff, to wit, at, &c. ; without this, that the faid defendant took and led away the faid cattle from and out of the faid pound with. out the licence and confent of the faid plaintiff, and against his will, in manner and form as the faid plaintiff hath in and by that plea by him above in reply pleaded alledged; and this, &c. ; whereTo the 3d repli fore, &c. : And the faid defendant, as to the faid plea of the faid cation, iffue on plaintiff by him above in reply pleaded to the faid plea of the faid defendant by him thirdly above pleaded in bar as to eating up, &c. &c. by the faid defendant above fuppofed to be acknowledged to be done, fays, that the faid plaintiff, by reafon, &c. (a&io non); because he faith, defendant (as before) fays that the faid cattle were releafed and difcharged from and out of the faid pound by and with the confent of the faid plaintiff in manner and form as the faid defendant has in his faid plea thirdly above alledged; and of this he puts himfelf upon the country; and the faid plaintiff doth To the 4th re- the like: And the faid defendant, as to the faid plea of the faid plication, iffue plaintiff above in reply pleaded to the faid plea of the faid defendant by hun fourthly above pleaded in bar as to the eating up, &c. &c. above fuppofed to be acknowledged by the faid defendant to be done, fays, that he by reafon, &c. (a&io non); because he the faid defendant (as before) fays that the faid cattle were replevied in menner and form as the defendant hath in his faid plea fourthly above pleaded in bar alledged; and of this he puts himself upon

on traverfe

the

the country, and the faid plaintiff doth the like, &c. [Rejoinder to fifth and fixth replication, taking iffue upon the t averfes refpectively.]

FOSTER BOWER.

Trinity Term, 19. Geo. III.

Surrejoinder to the rejoinder to the replication to the second plea, taking issue, omits traverse.

A. CHAMBRE.

The defendant, on the trial of this cause, obtained verdict.

see also afrom

Plea Ift, Not Guilty: And for further plea as to the feizing, driv- part 186

Plea, that

ing, taking away, and felling the faid ox in the faid declaration men- Lady Windfor
tioned above fupposed to have been done by the faid defendants, by feifed in fee of
leave, &c. (actio non); becaufe they fay, that before and at the faid the lordship of
time when, &c. the right honourable Alice, lady vifcountefs Dowa- M.
ger of Windfor was and ftill is feifed of and in the feignory or
lordship of Myfhin, in the county of Glamorgan, in her demefne

within faid lord

as of fee, and that the faid Chriftopher Baffet, deceased, in the faid c. Baffet, de-
declaration mentioned, before the said time when, &c. was feifed ceafed, feised in
of and in a certain tenement, to wit, a meffuage and divers, to fee of a meffu-
wit, forty acres of land called Mandye, lying and being in the age and land
parish of Lantre, part in the county of Glamorgan aforefaid, with- ship,
in the faid feignory in his demefne as of fee, and held the fame of
the faid Alice viscountefs dowager Windfor, then lady of the faid and held fame of
lady Windfor at
feignory or lordship, and of a certain yearly rent, to wit, two the rentof 2511d
hillings and elevenpence, and also among other fervices by the and a heriot;
fervice of rendering after the death of every tenant of the faid te-
nement dying feifed thereof the best beast that was the property
of fuch tenant at the time of his death in the name of an heriot,
if fuch tenant hath not, at the time of his death, been poffefled
of live beafts at the time of his or her death, then the fum of
five fhillings for and in lieu of an heriot, of which fervices the faid
Lady viscountess dowager Windfor was feifed by the hands of the
faid C. Baflet now deceafed, as by the hands of her very tenant fee by the hands
in her demefne as of fee: And the faid defendants further fay, that of C. B.
the faid C. Baffet now deceafed, being fo of the faid tenement, C. B. died feif-
with the appurtenances, afterwards and before the faid time when, ed,
&c. to wit, on the fourteenth of December 1760, at Rofs afore-
faid, in the county of G. aforefaid, died feifed of fuch his estate
therein, and at the time of his death was poffeffed of the faid ox and at his death
in the faid declaration mentioned as of his own proper ox, which was poffeffed of
faid ox was the best beast of the said C. Baffet, now deceased, at faid ox in
the time of his death; by reason whereof an heriot happened and declarationmen-
fell to the faid Alice lady, &c.; and because the said heriot, after
the death of the faid C. B. was in arrear to the faid Alice lady, by reafonwhere-
&c. and not delivered to her, they the faid defendants, as the fer- lady W.

T 4

vants

ofwhich fervices

lady W. feifed in

tioned,

of heriot feli to

livered,

and because vants of the faid Alice lady, &c. and by her command afterwards, fame was in ar- to wit, on the fame, &c. at, &c. did fell the fame for the use of rear and not de- the faid Alice lady, &c. as it was lawful for them to do for the defendants, as caufe aforefaid, which are the fame feizing, taking, and driving fervants of lady away, and felling the faid ox in the faid declaration mentioned, W. fold faid ex whereof the faid plaintiff's have above thereof complained against

for her ufe.

3d Plea.

feifed of the

C. B. feifed of

Jands in lordship,

Laid

fervices a heriot.

plea.

them; and this, &c.; wherefore, &c.: And for further plea in this behalf as to the feizing, &c. by like leave, &c. (actio non); because they fay, that before and at the faid time when, &c. the right honourable lady viscounters dowager Windfor was and still Lady Windfor is lady of the feignory or lordship of Myfhin, with the appurtelordship of M. nances, in the county of G. and that the faid C. Baffet, deceased, in the faid declaration mentioned in his lifetime, long before the faid time when, &c. to wit, on the first of January 1760, was seised of and in certain lands and tenements, with the appurtenances, lying within the feignory or lordship in his demefne as of fee, and held the fame of the faid Alice lady, &c. then lady of the faid' and held fame of feignory or lordship, as of that her feignory or lordship by certain lady W. by rent yearly rents, and alfo amongst other fervices by the fervice of renand amongother dering after the death of every tenant of the faid lands and tenements dying feifed thereof of the best beaft that was the property of fuch tenant at the time of his death in the name of an heriot, of which fervices the faid Alice lady, &c. was feiled by the hands of the faid C. Baffet, now deceafed, in his lifetime, as by the hands of her very tenant: And the faid defendants further fay, C. B. died, &c. that the faid C. Baffet, now deceafed, being fo feifed, &c. [the &c. as in fecond fame as fecond plea ad finem]: And for further plea as to the 4th Plea, lady feizing, &c. (altio non); because they fay, that before and at the W. feifed in fee faid time when, &c. the right honourable Alice, &c. was and fill of the lordship is feifed of and in the faid fcignory or lordship of Myfhin, in the county of G. in her demefne as of fee; and that the faid C. BafC. Baffet, a free fet, deceased, in the faid declaration named, before the faid time tenant of faid when, &c. to wit, on the first of January 1760, was a free tenant of the faid feignory or lordship, and feifed of and in a certain and feifed of a freehold tenement, to wit, a mefluage and divers, to wit, forty' acres of land, with the appurtenances, lying and being in the faid parish of L. in the county of G. and within the faid feignory or lordship in his demefne as of fee, and held the fame of the faid Alice lady, &c. the lady of the faid feignory or lordship as of that her feignory or lordship aforefaid by a certain rent and certain fervices, parcel of the faid feignory or lordship: And the faid defendants further fay, that within the faid feignory or lordship there Prescription in now is, and from time whereof, &c. there hath been a certain anof faid lordship cient and laudable cuftom there used and approved of, that is to upon the death fay, that the lord or lady of the faid feignory or lordship for the of every free te- time being, from time whereof, &c. hath had and taken, and hath nant to feize the been used to have and take, and of right ought to have and take upon the death of every free tenant dying feifed of any freehold lands, tebeat, then 5s to nements, or hereditaments holden of the lord or lady of the feigbe paid in lieu.

of M.

lordflip,

freehold tenant;

and

held the

fame of lady W,

by rent, &c.

the lord or lady

best beast as a

heriot, and if no

nory

pory or lordship for fuch lands, rents, or tenements, whereof fuch tenant died fo feifed of the belt beast that was the property of fuch tenant at the time of his death, for and in the name of an heriot, if fuch free tenant fo dying hath at the time of his death any live beaf, and if the tenant jo dying hath not had at the time of his death any live beast, then the fum of five fhillings for and in the lieu of an heriot, and the lord or lady of the faid feignory or lordship for the time being during all the time whereof, &c. hath feized, and been ufed and accustomed to feize the best beast of fuch free tenant at the time of his death for fuch heriot wherefoever fuch beaft hath or could be found: And the faid defendants further fay, that before C.B. died feiled, the faid time when, &c. the faid C. Baffet, now deceased, being fuch free tenant of the faid feignory or lordship, and fo feifed of fuch freehold tenement as aforefaid, and at the time of his decease was poffeffed of the faid ox in the faid declaration mentioned as of his own proper ox, which faid ox was the best beaft of the faid C. Ballet at the time of his death, to wit, at, &c.; wherefore they the faid defendants, as fervants of the faid lady Windfor, and by her command at the faid time when, &c. did feize, take, and drive away the faid ox in the faid declaration mentioned, and afterwards on the fame day and year fell the fame for the use of the faid lady Windfor, to wit, at, &c. as it was lawful for them to do for the caufe aforefaid, which are the fame, &c. whereof, &c,; and this, &c.; wherefore, &c. [Fifth plea fame as laft, omitting what is in Italic.]

JAMES WALLACE.

And the faid plaintiffs, as to the faid plea of the faid defendants Replication. by them fecondly above pleaded in bar as to the feizing, &c. fay,

that they the faid plaintiffs, by reafon, &c. (precludi non); be- AdmitsladyW.'s caufe they fay, that true it is that before and at the faid time when, fein; &c. the right honourable Alice, &c. was and ftill is feifed of and

in the feignory or lordship of Mythin, in the faid county of G.

in her deinefne as of fee; and that the faid C. Baffet, in the faid admits C. B.'s declaration mentioned, in his lifetime, before the faid time when, feifin ; &c, to wit, on the first of January 1760, was feited of and in a certain meffuage and divers, to wit, forty acres of land called Mandyke, and lying and being in the parish of Lantiflant, in the county of G. aforefaid, within the faid feignory in his demefne as of fee, and held the fame of the faid Alice lady, &c. then lady of the faid feignory or lordship as of that her feignory or lordship; but the faid plaintiffs further fay, that whenever any tenant of the but fay, that fame tenements hath happened or may happen to die out of that when feignory or lordship, not being at the time of his death poffetfed died out of lordof any beaft within the faid feignory or lordship, no heriot what-hip, and not foever hath been or is of right due or payable to the faid lord or bealt within the lady of the faid feignory for or in refpect of the fame tenement, but lordship, no heonly five fhillings in lieu thereof, and that the faid C. Baffet did not is paid, but die out of the faid feignory or lordship, to wit, at Rofs aforefaid only 5s. in licu.

not

tenant

poffeffer of any

fed of any beaft

and fold the ox.

tom.

To 4th plea.

C. Bafict died not being at the time of his death poffeffed of any beaft within out of lordship, the faid feignory or lordship: And faid plaintiff's further fay, that and not poffef the faid defendants of their own wrong, at the faid time when, within the lord. &c. feized, took, drove away, and fold the faid ox of the faid ship. plaintiffs in the faid declaration mentioned, in manner and form as Defendant, de the faid plaintiffs have above in that behalf complained; without injuria fua feized this, that the faid C. Baflet, deceased, in his lifetime, held his faid Traverse of the tenement of the faid Alice lady, &c. as of that her feignory or tenure and cuf- lordship, by a certain yearly rent; and alfo amongst other fervices, by the fervice by fending after the death of every tenant of the faid tenement dying feifed thereof, the best beast that was the property of fuch tenant at the time of his death in the name of an heriot, if fuch tenant hath, at the time of his or her death, been poffefied of any live beaft, and if fuch tenant so dying hath not been poffeffed of any live beat at the time of his or her death, then the fum of five fhillings for and in lieu of an heriot, in manner and form as the faid defendants have by the faid plea in that respect above alledged; and this, &c.; wherefore inalinuch as the faid defendants have above acknowledged the committing of the faid trefpafs, the faid plaintiffs pray judgment and their damage, by reafon of the committing the faid trefpafs, to be adjudged to them, &c. [Replication to third plea as in foregoing, and traverfe of the tenement in third plea alledged]: And as to the faid plea of the faid defendants fourthly above plead ed in bar as to the feizing, taking, driving away, and felling the faid ox in the faid declaration mentioned, they the faid plaintiffs fay, Protesting in that by reafon, &c. (precludi non); becaule protesting that the fufficiency, &c. fame plea in manner and form as the fame is above pleaded, and the matters therein contained, are infufficient in law; for replication in this behalf the faid plaintiffs fay, that true it is that before admits lady W.'s and at the faid time when, &c. the right honourable Alice, &c. feifin, was and ftill is feifed of and in the feignory or lordship of M. in the faid county of G. in her demefne as of fee, and that the faid C. Baffet, deceased, in the faid declaration named, before the faid time when, &c. to wit, on the first day of January 1700, was a and that C. B. free tenant of the faid feignory or lordship, and feifed of and in a was a free te certain freehold tenement, to wit, a mefluage and divers, to wit, forty acres of land, with the appurtenances, lying and being in the Defendants de parish of L. in the faid county of G. and within the faid feignory injuria jua seized or lordship in his demefne as cf fee, and held the fame of the faid and fold the ox. lady, &c. then lady of the faid feignory or lordship as of that her feignory, by a certain rent and certain fervices, parcel of the faid feignory or lordship; but the faid plaintiffs further fay, that the faid defendants of their own wrong, at the faid time when, &c. fcized, took, drove away, and fold the faid ox of the faid plaintiffs in manner and form as the faid plaintiffs have above in that behalf complained; without this, that within the faid feignory or lordship there now is, and from time whereof, &c. there bath been a certain ancient and laudable cuftom there ufed and approv

nant.

ed,