and traverses prefcription of common, and iffue; and that defendant is guilty after fourteen days after the festival, and before the fourteen days before the feftival, Ra. Ent. 618. Vet. Int. 165. Plea to part, that all the inhabitants in the vill had a common way in, through, and over the plaintiff's closes; and to refidue, that plaintiff ought to repair the hedges, Tho. 402. BY CUSTOM. Plea (to trefpafs for breaking clofe, &c.), that within the faid clofe from time whereof, &c. there had been a gravel pit in which the inhabitants of the parish have used to dig gravel, &c. for the repair of the other highways, &c. and after the neceffary averments juftifies. Demurrer, 2. Lut. 1344. That parishioners of H. ufed annually upon rogation day to go over and through the clofe in the new affignment in going round upon the bounds of the parish (called procefficning); and becaufe plaintiff ftopped up the way with hedges and gates, defendant proftrating them in ufing the way; and traverse that they were guilty before or after that day. Demurrer, 1. Bro. 349. That every cuftomary tenant of the manor of T. had a way as well on foot 23 for horfes from the highway through and over the close in the new affignment, for carriages, and to drive cattle to S. and thence back; R. was cuftomary tenant of the manor of meffuages and lands, and plaintiff fhut up the way by erecting a gate, which defendant as fervant of R. threw down to enjoy the way, and cattle paffing fnatched a morfel of grafs. Replication, de injuria, &c. and traverfes cuftom. Iffue thereon, 2. Bro. 248. OF NECESSITY. Plea (to declaration for breaking clofe, profirating, defpoiling, and carrying away forty perches of hedges) to part, non cul; to refidue, juftification under a right of way, where there had been an unity of poffeffion and alienation of part of the lands. Demurrer, but judgment for defendant, because the way was of neceffity. 2. Lut. 1487. That G. feifed of the rectory, demifed it to defendant, and C. fowed lands adjoining plaintiff's clofe, and fet apart fheaves of corn for tithes, and defendant to carry them off the ufual way (without alledging any prefcription), removed the bars, and entered into plaintiff's clofe, and through and over that close into the lands fown, to carry off the tithes, and the cattle paffing fnatched a mouthful of grafs and averment that there is no other way. Replication, de injuria, &c. Wi. Ent. 989. Eer. 709, That E. feiled of a meffuage, close of land, and warren, granted house and close to defendant by indenture, together with all ways, &c. and at the time of the exe. cution of the indenture a way from the meffuage to the clofe was abfolutely neceffary through the warren, and defendant to use the way threw down the hedge and ditch. Plaintiff prays oyer of the indenture, and demurrer, Her. 729. 7. EASE 7. EASEMENTS, &c. NOT CLASSED. (12) VOL. IX. Page 182. Plea (to trefpafs for placing timbers on plaintiff's land, &c.), that A. B. poffeffed of a houfe adjoining to the walls, had a right to place the timber as an easement to his houfe. (See p. 181. 183.) 184. Plea (to treipafs for entering clofe, pulling down hedges), that defendant had a prescriptive privilege to water borfes, and becaufe the way was obftructed removed the hedges. (See the Plea.) 268. Plea (to declaration for entering clofe, carrying away 269. Plea to force, &c. non cul; and to entering the close, and digging, and carrying away the fand; defendants prescribe as fervants to J. S. to get fand in the locus, &c. for the ufe of his meffuage and garden. Replication, de injuria, &c. abfque tali caufa, traverfing prefcription. Rejoinder, iffue on the traverie. PRECEDENTS in BOOKS of PRACTICE, REPORTERS, &c. Plead. Aff. FAIRS AND MARKETS. (See DISTRESSES FOR TOLLS, &c.) 498 Plea to trefpafs for proftrating a ftall and erecting another, that E. feifed of the manor whereof the vill and clofe in quo, &c. are parcel, and that in the villand clofe there was annually held a fair, E. demifed to defendant the profits of the fair, who in the time of the fair threw down plaintiff's ftall, and erected another for the ufe of the fair. Replication that the clofe is plaintiff's freehold, and defendant de injurio, &c.; traverses that close is parcel of the manor, 3. Br. 415. EASEMENTS NOT CLASSED, &c. (See RIGHT OF COMMON TO ESTOVERS, &c. AND LICENCE TO CUT WOOD. That defendant was feifed of copyhold lands held of plaintiff lord of the manor, and that within the manor there was a custom that copyholders in fee might cut wood wood, underwood, and trees growing on cuftomary tenements at will. Replica. tion, confeffes part of the plea, and traverfes the cuftom, 2. Bro. 250. That M. poffeffed of a clofe called S. and a clofe called P. adjoining, demif ed clofe called S. to plaintiff, with liberty of cutting and making hedges between closes, and ingrels, egrefs, and regrefs in and through the plaintiff's clofe to carry wood thence arifing excepted, and defendant as lervant of M. entered into the clofe, and hedges between the clofes cut and made, and the wood therefrom arifing carried away, Wi. Ent. 996. Plea (to breaking clofe and cutting trees), that L. feifed of a clofe upon which the trees grew, and they hung fo much over part of plaintiff's clofe in the new affignment, that they could not be cut, unlefs by entering plaintiff's clofe, on which defendants as fervants of L. entered into the clofe and cut the trees, doing as little damage as they could. Replication, de injuria, &c. and traverse that trees grew upon the clofe of L. and iffae, Bro. Met. 378. That plaintiff fold trees to defendant for ten pounds in hand paid, and defendant entered into the clofe and cut them. Replication, that he fold the trees for ten pounds to be paid at a feaft day, on condition if not paid to be void, and defendant did not pay, and traverfe that he fold for ten pounds in hand paid, Ra. 675. Vet. Int. 156. Replication, de injuria, &c. and traverfes the fale, Ra. 675. Plea (to cutting down wood), to part, that R. feifed of the wood, fold the timber to defendant; and to the refidue, that N. seised of the wood, enfeoffed R. to the ufe of H. who devised that the wood and underwood fhould be fold by M. his wife and E his executor, who fold to defendant. Replication to both pleas, that H devised the lands to his wife for life, remainder to the fon, who fold the trees to plaintiff, and defendant at the time of the purchase had notice of the ufe, and traverfes that H. devifed that lands fhould be fold by executors, and traverse that M. one executor fold to defendant. Rejoinder, that the trees were fold by R. and both the executors agreed to the fale; and to the other plea, demurrer; and demurrer to rejoinder, Ra. 676. That locus where trees grew were fifty acres of wood, whereof abbot being feifed cut trees, and permitted them to lay there, and defendant as his fervant carried them away. Keplication, that plaintiff and his wife were feifed of the manor, whereof the ditch lying between plaintiff's lands and thofe of the abbot, and the banks, and mounds or motes (foffata) of the ditch were without the bay (bafiam) of the abbot are parcel, and the trees there grew, which plaintiff cut, and defendant carried away. Rejoinder, that the ditches, banks, and mounds or motes are the freehold of the abbot, and traverfe that they are parcel of the manor, Ra. 649. Vet. Int. 162. That defendant, (minetarius) coiner of the king cut trees to make the coin (minetam), &c. by prefcription. Replication, that defendant cut more than was neceffary, and fold them, 2. Inft. 578. EASEMENTS NOT CLASSED. (See CUSTOMS.) That occupier of lands in the faid field in ploughing land was accustomed to turn the plough and affres, drawing it upon the land of any perfon adjoining, to bring back the plough and afros to his own land. Replication, confeffes the cuflom, but further fays that defendant committed the trefpafs otherwife than in turning the plough and affres, as plaintiff declared, Tho. 388. Bro. Vad. 441. That the land was four acres of wafte not inclofed, and a cuftom for all tinners within the county of C. to make trenches to convey watercourfe to the tin works in all the commons, moors, and waftes not inclofed or fevered for washing and cleansing the tin, 1. Bro. 339. Plea Plea to trefpafs by a corporation for breaking a piece of land and digging in the foil, and to carry it away; that within the borough there are divers of inhabitants and free men, who were owners and mafters of thips, and that locus, &c. is within the port, and ufed to take and dig ballaft, 3. Lev. 157. Replication, that locus is parcel of the manor of Lynn Kegis, and P. and B. being feifed by letters patent, granted the manor aforefaid to the mayor and burgeffes that they might permit divers free men of the borough aforefaid to dig neceffary ballast for the Thipping in the faid port. Demurrer, and cuftam held good, 1. Bro. 158. Plea (to trefpafs for breaking his clofe, &c. and digging foil there, and taking and carrying away a cart load of lead), not guilty to taking, &c. to part of the lead; and to refidue of trefpafs plea, that the place, &c. is a place within the hundred of N. called the King's Fee or Field, and parcel of it; that in the said place called, &c. was a cultom that bene alicui perfonæ, being a fubject, &c. without faying (bene licuit) to dig for lead in the faid place called, &c. and to carry and retain the refidue after the duties accustomed are paid to the church, &c. except ing for which, &c. and juftify. Demurrer, and judgment for plaintiff, 2. Lat. 1317. Plea (to breaking the clofe, and among other things proftrating twenty perches of hedges), that one A. G. was feifed in fee of the manor of D. and that he, &c. from time whereof, used to dig in a close within the vill of S. for coals, &c. except gardens which belonged to the manor. Replication, de injuria, &c. Demurrer, and judgment for plaintiff, 2. Lut. 1347. Plea, that the clofe, &c. was a great moor or common wafte, in divers parts of which were divers quarries and great rocks lying there, and that defendant was feifed of a meffuage, &c. and that he, &c. have used to dig, take, and carry away, and have for their ufe rccks out of the faid quarries for repairs, and juftify taking a great rock, averring that it was neceffary. Demurrer, and judg ment for plaintiff, for that it was faid that the rocks were used for repairs, or at least to keep to repair, 2. Lut. 1388. Pleas. Juftification of Trefpaffes VOL. IX. Page 8. By DEFECT of FENCES, and Inclofures. (13) (See Right of Common, ante.-Not Repairing, &c.) 58. Replication to plea of damage feafant, that plaintiff is poffeffed of a clofe adjoining to a road near to defendant's close, and that the hedges of defendant's clofe which he ought to keep in repair, were not in repair; and that as plaintiff was driving his pigs into his own field fome of them efcaped through the infufficiency of the bedges into the defendant's clofe. Rejoinder, protesting that defendant ought to repair, for rejoinder defendant fays fences were in good repair, and that the pigs for want of being yoked got through the hedges. Surrejoinder, protetting that the hedges were not in good repair, and that the pigs got in through defect of fences. Two iffues. 59. 6c. PRECEDENTS in Books of PRACTICI, REPORTERS &c. (See PRECEDENTS in BOOKS of PRACTICE, REPORTERS, &c. Ibid. 639 Ibid. 641 (See Declaration, p. 56. and plea diftreffes damage feafant, poft.) Plea (to declaration for impounding cattle, and continuing Mor. Pr. 633. 678 them impounded till fome perfon let them out, whereby they were loft). That the cattle were doing damage, wherefore he feifed and impounded them. Replication, that defendant's hedges were out of repair, by which means the cattle escaped into defendant's clofes. Rejoinder, admitting that defendant ought to repair, but that plaintiff of his own wrong fet fire to defendant's hedges, and thereby made breaches in them, whereby the cattle efcaped into defendant's clofes. Surrejoinder, that defendants committed the trefpafs of their own wrong, and traverse that plaintiff fet fire to the hedges. Rebutter, taking iffue on the traverse, Ibid. 643 That defendant is in poffeffion of a clofe contiguous and adjoining the close in que, &c. and plaintiff is feifed of clofe in quo, &c. and that plaintiff ought to make hedges in the faid clofe; and defendant put his cattle into the clofe in his poffeffion, and they through defect of fences between the faid clofes, entered into defendant's close. Replication, de injuria, &c. and iffue, 1. Bro. 340. Ro. Ent. 465. Wi. Ent. 996. Tho. 304. 308. 342. 361. Replication, with like traverse, Wi. Ent. 999. Han. 213. That defendant, feifed of a clofe adjoining to plaintiff's clofe, and of one (vivaridica) park hedge which divided plaintiff's and defendant's clofe; plaintiff cut and threw down part of the hedge, per quod defendants cattle escaped into plaintiff's ground. Demurrer, 1. Bro. 354. That clofe in quo adjoins the highway, and that plaintiff ought to make the hedges between the clofe and the highway, and becaufe the hedges were broken down defendant's cattle efcaped out of the way. Replication, de injuria, &c. and traverfe that hedges were broken, and iffuc, Tho. 296. That defendant is poffeffed of a clofe called H. adjoining the clofes in which, &c. and plaintiff occupied the clofes, and the occupiers of the clofes ought to make the hedges in and upon the clofes, and repair the hedges of defendant's clofe called H. that the cattle fhould not escape into the faid clofes in which, &c.; and the occupiers of the close of H. were obliged to bring back the cattle that had escaped through defect of fences from the fame clofes into the clofe of H. Defendant put his cattle into the clofe of H. that efcaped through defect of fences, Tho. 301. That the clofe in which was parcel of the common field, and inclofed by the plaintiff from the refidue of the field, and plaintiff and other occupiers were used to repair the hedges; defendant, feifed of the customary houfes and lands, had common in the common field for all fheep throughout the year; that he put in sheep; and because hedges were out of repair they escaped into the clofe, Tho. 332. Mo. Int. 387. Replication, de injuria, &c. That plaintiff ought to inclofe his field next adjoining the common way, through defe of which defendant's cattle in pafling trayed into plaintiff's clofe, Tho. 397. Replication, to like plea, de injuria, &c. and traverses that cattle entered through defect of inclofure, and iffue, Ko. Ent. 459. Plea, adjoining clole in quo defendant had common for all cattle throughout the year, and through defect of fence: plaintiff's cattle efcaped, Wi. Ent. 995. Like, after corn carried off until the field refown, Bro. R. 503. Like plea. Replication, protefting that defendant had not common, pleads de injuria, and traverses that hedges were broken, and iffue, Wi. Ent. 1005. Judgment |