that every tenant customary had timber of the affigning of lord of the manor, or his bailiff, for repair of buildings, but building being out of repair, and no timber aligned, defendant took and used it for repair of the meffuage, Tho. 377. That defendant, feifed of mefluage and half a yardland of ground, had reasonable eftovers in lands (except certain trees) for hedges and fuel. Replication, de injuria, &c. traverses prefcription, 3. Br. 458. Plea to part of land prefcribes in right of common, to cutting furze and brush, being himself seised of meffuage, was used to cut furze and buthes growing on the lands in the new affignment to be burnt in the meffuage. Replication to each plea, de injuria, &c. and traverfe each prescription, 3. Br. 407. Plea (to trefpafs for breaking clofe, depafturing grafs, and cutting furze and brush) to breaking, &c. right of common of pafture in the lands in the new affignment for all his cattle, throughout the year, and as to cutting, &c. that defendant feised of the fame meffuage was used to cut furze and heath growing in the lands in the new affignment to burn in the houses. Replication to each plea, de injuria, &c. traverfing both prefcriptions, 3. Br. 407. VOL. IX. Page (2) Right of WARREN, CHASE, PARK, &C. (10) 221. Plea, defendant feifed of a manor, prefcribes for a free warren over locus in quo, fets out a title from 41. H. 3. who granted his letter's patent to prior of Coventry, furrendered to H. S. in 13. H. 8. who be came feiled, defcent to Edw. 6. Mary and Eliz. who granted by letter's patent to T. T. and T. W. who bargained and fold to J. T. defcent to J. T. his heir, defcent from him to R. T. who bargained and fold to fir T. B. descent to his fon, and from him to defendant. REPLICATION, that before defendant had any thing in the manor, &c. one T. T. in 1658, was feifed in fee, fine levied by him and wife to T. B. and E. D. and mortgaged to J. C. who died inteftate. Adminiftration granted to T. C. who affigned to T. B. feveral affignments, and devife to C. H. who demifed to plaintiff as tenant from year to year. To laft plea, protesting prior not feifed, and H. 3. and Eliz. did not grant, R. T. was not feifed, and did not fell; infufficiency pleaded as before. 229. Right of Warren, Chafe, Fishery. That J. feifed of an ancient warren, made defendant his warrener, that plaintiff entered into the warren and made an assault upon defendant, who defended himfelf in the execution of his office, and traverse that he is guilty in any other manmer or elsewhere out of B. Tho. 397. Plea Plea to declaration for breaking clofe, that he found two badgers in another close, and hunted them into the clofe in the new affignment, where they got under ground, and defendant dug them out of their hiding places and holes, and killed them, which is the fame trefpafs, Bro. R. 483. 1. Br. 191. Plea, cuftom in the county for all perfons keeping dogs to bunt hares, 1. Bro. 335. Plea to trefpafs for killing two dogs. Juftification, that the dogs chafed the deer in his park or chace, and killed one, on which defendant, as fervant of E. T. knight, and by his command took the dogs, and to fave the deer killed them. Replication, that the deer was out of the chace upon plaintiff's land feeding, and that he called the dogs to hunt them out, and they pursued the deer into the chace and there killed her; abfque hoc, that the dogs drove or killed the deer in any other manner. Demurrer, and judgment for defendant, 3. Lev. 25. That E. lord of the vill adjoining warren, and his tenants were accustomed to hunt there, 1. Br. 175. Plea to breaking clofe, taking nets, and affault, that defendant was poffeffed of warren, adjoining clofe, &c. by demife, and that plaintiff, with others unknown, were chafing in the warren when defendant took the nets damage feasant, and purfued plaintiff and others into the clofe to discover them. Replication, de inɑ juria propria, and traverfes chafing in the warren, 2. Br. 3. Br.421. That bishop feifed of a chace extending, &c. by prefcription, had pannage for all pigs (except pigs of the owners of the place, &c.) within the chace, and the owner likewife had pannage for hogs found in the wood, (except the bishop' pigs and his tenants) and that plaintiff took twenty-two hogs belonging to tenants, which the bishop carried off for pannage. Replication, de injuria propria, and traverses that the wood is within the chace, Ra. Ent. 664. Vet. Int. 188. That bishop feifed of a chace extending into locus, &c. threw down the pales there erected. Replication, de injuria, &c. and traverses that chace extended into Locus, &c. Ra. Int. 663. Vet. Ent. 187. FISHERY. Plea (to trefpafs against R. and W. for taking fish) to part by R. licence by plaintiff to fi in fifhery, with leave to take falmon, and to other part R. and W. plead that B. is lord of the vill, and in right of the manor had fishery upon the banks of river running into W. and juftify as fervants, and traverse that they are guilty in E. and to refidue, R. pleads not guilty, W. pleads not guilty to part, and to other part prior recovery for taking the fame fifh, and to refidue not guilty, and to the affault fon assault dem fne. Replication to each plea that he did not licence to fish, and that defendants are guilty in E. and that W. took more fish than fpecified in the former recovery and feveral iffues thereto, Ra. Ent. 165, Vet. Int. 157. 3. Right 3. RIGHT of WAYS and WATERCOURSES. VOL. IX. Page 1. Public. 2. Private. (Banks of Navigable Rivers-Towing Paths.) 233. Plea (to entering clofe, confuming grafs, and breaking down gates), that there is a common highway over locus to pafs with horfes and carts, and because the way was obstructed by the gates, defendant pulled them down, prescribes. REPLICATION, de injuria, &c. traverfes locus being highway, and traverses right of way. 235. 236. Plea that there is a public king's highway for all the king's fubjects over locus, prefcription for way over 238. clofes in order to enjoy them. Replication, de injuria, traverses highway, and right of way with new afign. ment. Rejoinder, iffue on the traverse, and non cul. to new affignment. 239. 245. 244. Plea (to treipafs for entering clofe, pulling down rails, &c.), that the river T. is a common river for all the king's fubjects, and that in locus there is a certain path or way for towing boats, &c. of all perfons going up and down, and becaufe rails were wrongfully erected, and obftructed, &c. pul ed them down. 2d, that locus is adjoining defendant's clofe, and both adjoin the river, which overflowed, and a dam was erected and washed away, and the clofes have ever fince been divided by water running from the river, and the ancient way for towing, &c. being thereby impaffable, defendants entered locus, being a convenient way, and because, &c. REPLICATION, new affignment to first plea, and de injuria, &c. plea to new affignment. 250. Replication to plea to new affignment, protefting no fuch way. 248. 249. Right of Way PRIVATE-By Grant. 139. Plea (to declaration for entering clofe, &c. p. 138.) right of way private, by grant and affignment, and common of pafture. VOL. IX. Hh Right VOL. IX. Page 241. 2. 3. Right of Way Private---By PRESCRIPTION 240. Plea (to trefpafs for breaking and entering clofe, deftroving fences, throwing down gates, &c. p. 240.), First, General Iffue. Second, right of way through locus as vicar of E. from the highway to his freehold close, prefcription for way on foot and on horfeback, &c. and becaufe way was obftructed, pulled down gates. 243. Replication, new affignment, that plaintiff brought his action not only for trefpaffes confeffed, but alio for breaking clofe, treading down corn, &c. otherwise than in using way, and as to trefpaffes confeffed de in244. juria, &c. traverfe of right of way. REJOINDER, non cul. to new affignment. Iffue on traverse. 255. Plea, right of way by prefcription, and because hedges obftructed, &c. pulled them down. See other pleas, p. 250. REPLICATION. Rejoinder. 263. Plea, firit, Not guilty. Second, defendant feifed of a houfe near locus, prefcription to draw water out of a well, and a way to the well over locus; that in fetching the water he unavoidably, &c. feveral pleas, licence, liberum tenementum, giving colour, accord and fatisfaction, eafement. Vide the pleas, and under their respective heads. 4. Right of Way Private-Of NECESSITY. 161. Plea (to trefpafs for entering clofe, &c. p. 160.), First, Not guilty. Second, juftification in right of a private way by neceffity, that one W. M. was feifed of two clofes, and aliened one to defendant, and that defendant of neceffity paffed through plaintiff's clofe to 165. his own. Third plea, that there was no other way. REPLICATION to fecond plea, traverfing that at the time of the alienation there was no other way as in that that plea is mentioned. And to the third plea, de in168. juria, &c. Alio traverfing that there was no other way to third plea, de injuria, &c. REJOINDER, that defendant of neceffity ought to have a convenient way after fuch alienation taking iffue on the traverfe tendered in the replication to the third plea. 166. 369. Plea (to trefpafs for entering clofe, confuming turnips, and with carriages fubverting foil), that A. B. was feifed in fee of a piece of land which he demifed to the defendant, in right of which he was entitled to a way over locus, and becaufe the plaintiff had ploughed up the ufual way he affigned another, whereupon the defendant entered the laft-mentioned way with horfes and carriages, and in so doing, did unavoidably, &c. Plea of right of common of pafture in premifes in a barge common field, excepting the Hitching, and a cuf tom VOL. I X. Page 408. tom to put in cattle levant and couchant from the time Plea in trespass, non cul. to vi et armis, and prefcription for d Plea (to trefpafs for breaking and entering plaintiff's clofe), juftification in right of a public high-way leaving from another highway from A. to B. in, through, over, and along the locus, &c. to a certain other highway leading from C. to D. PRECEDENTS in Books of PRACTICE, REPORTERS, &c. Plea (to trefpafs for breaking down and carrying away an iron gate), a demife of certain premifes, and a right of away thereto, and that beca de gate was wrongfully er eted acrofs, &c. defendant broke it down, and carried the fame to a convenient diftance for the ufe of plaintiff. Replication, protefting that fame was not removed to a convenient dillance; alledged that after breaking it down they converted the fame to their own ufe. Rejoinder, and iffue, 2. R. P. C. B. 49 Ibid. 424 i. H. Bl. 351 4. T. R 36+ |