whereby a penalty of

351. was for

feited to the Said J. W. S.

and the fame

not being paid upon request,

tything of Winterbourn within the faid manor to depafture there; whereby the faid penalty or forfeiture of twenty fhillings for each beaft fo depaftured by the faid Samuel, on the faid place in which, &c. amounting in the whole to the fum of thirty-five pounds, then and there accrued, and became forfeited, due and payable to the faid John Withers Sherwood, then lord of the said manor for breach of the bye-law aforefaid; and the faid penalty or forfeiture being fo forfeited, due and payable as aforefaid, and remaining unpaid, he the faid Samuel afterwards, (to wit) on the fame day and year in the faid declaration mentioned, at Winterbourn aforefaid, was requested by the faid John Withers Sherwood to pay the fame; but the faid Samuel then and there wholly refused to pay the fame; and because the said fum of 354 at the faid time when, &c. was in arrear and unpaid, he the laid George as bailiff to the faid John Withers Sherwood, well ac knowledges the taking of the faid cattle in the faid place, in which, &c. being within the manor, and juftly, &c. for and in the name of a diftrefs for the faid penalty of forfeiture fo due and in arrear as aforefaid, and this the faid George is ready to verify; wherefore he prays judgment, and a return of the faid cattle, together with his damages, cofts and charges, according to the form of the ftatute in that cafe made and provided, to be The fecond adjudged to him, &c. And the faid George, for further cogni.

but being in

the arrear, defendant as bailiff of J. W. S.

diftrained the cattle in the

place in which, &c.

cognizance.

zance in this behalf, by leave of the court here for this purpose first had and obtained, according to the form of the ftatute in that cafe made and provided, as bailiff of the faid John Withers Sherwood well acknowledges the taking of the faid cattle, in the faid place in which, &c. and juftly, &c. because he says that the faid place, called White's Hill, in which, &c. is, and at the faid time when, &c. was a certain large waste or common, containing forty acres of pafture, lying and being within the faid parifh of Winterbourn, and within the manor of Winterbourn, and that within the faid manor there now is, and from time whereof the memory of man is not to the contary, there hath been alfo another waste or common called Winterbourn Down, otherwifeWinterbourn Common, of which faid manor, with the appurtenances, the said John Withers Sherwood, long before, and at the faid time when, c. was feifed in his demefne as of fee; and that the faid John Withers Sherwood, and all thofe whofe eftate he hath of and in the faid manor, with the appurtenances, from time whereof the memory of man is not to the contrary, have had, and have used and been accustomed to have, and ftill of right ought to have a certain court leet and view of frankpledge of the refiants within the faid manor to he held twice in every year (that is to fay) once within a month after the Feast of Eafler, and once within a month after the Feast of Saint Michael the arch-angel in every year; and that within the faid manor there is, and from time whereof the memory of man is not to the contrary, hath

been

cognizauce.

been a certain ancient cuftom there ufed and approved of, (that is to fay) that the jury of the faid court leet from time to time, for and during all the time aforefaid, have been used and accustomed at the fame court leet, by and with the consent of the greater part of the commoners having right of common, on the waftes of the faid manor, prefent at Juch court leet, to make rea- Thefe words, Jonable bye-laws and ordinances for the better prefervation and re- viz. " prefent "at fuch court gulation of the commons within the faid manor, and the grafs «leet," make and herbage growing in the fame, and to impofe fuch reasonable a difference penalties on any farmer or tenant of the fame manor, that fhould between this infringe or break fuch bye-law or bye-laws, as they from time to and the firft time have thought proper: and the faid George further fays, that the faid John Withers Sherwood, and all thofe whofe eftate he hath, and at the fame time when, &c. had of and in the faid manor, with the appurtenances, from time whereof the memory of man is not to the contrary, have demanded, received and taken, and have used and been accustomed to demand and receive, and take from every tenant or farmer of any lands or tenements within the fame manor, offending against fuch bye-law or bye-laws, the feveral and refpective penalties or forfeitures impofed on or incurred by fuch tenant or farmer, by the breach or breaches of fuch bye-law or bye-laws; and in cafe of refufal or non-payment thereof, after a reafonable requeft and demand thereof made, have during all the time aforefaid diftrained, and have used and been accuftomed to diftrain the beafts and cattle of fuch tenant or farmer, for the refpective penalty or penalties. forfeiture or forfeitures by him incurred as aforefaid, in any place within the fame manor; and the faid George further fays, that at the court leet or view of frankpledge of the faid John Withers Sherwood, holden at Winterbourn, in and for the faid manor, within one month after the Feast of Saint Michael in the year of out Lord 1764, (to wit) on the 16th day of October in that year, before Chriftopher Griffith gentleman, then fteward of the faid court; the jury impannelled, charged and fworn to ferve at and for the fame court leet, in purfuance of the faid custom, did, by and with the confent of the greater part of the commoners, then having right of common upon the waftes of the faid manor, who were prefent at the fame court leet, in due manner make and ordain a certain bye-law, for the better prefervation of the commons within the fame manor, by which Jaid bye-law the faid jury did then and there order, that no perfon or perfons fhould depafture any fheep, horfes, cattle, or any other beast whatfoever, on Winterbourn Down, otherwife Winterbourn Common, or any other common belonging to the tything of Winterbourn within the faid manor, from Saint Thomas's Day to Ladyday, yearly in every year, from thence forth for ever thereafter, on pain of forfeiting twenty fhillings for each fherp, beast, or any other cattle, of what nature or kind foever, which fhould be de

paftured

paftured thereon, contrary to the faid bye-law, and all former bye-laws, of which faid bye-law the faid Samuel Gerrish atter. wards, (to wit) on the fame day and year laft aforefaid, at Winterbourn aforefaid had notice: and the faid George further faith, that after the making of the faid bye-law, and between Saint Thomas's day and Lady-day, and a little before the faid time when, &c. (that is to fay) on the faid thirty-first day of January, in the faid year of our Lord 1769 at Winterbourn aforetaid, the faid Samuel Gerrish did put the faid cattle in the faid declaration mentioned, into the faid common, called Winterbourn Down, otherwife Winterbourn Common, the fame then being a common belonging to the faid tything of Winterbourn, within the faid manor, to depafture there; whereby the faid penalty or forfeiture of twenty fhillings for each beaft fo depaftured by the faid Samuel, on the faid place in which, &c. amounting in the whole to the fun of 357. then and there accrued and became forfeited, due and payable, to the faid John Withers Sherwood, then lord of the faid manor for breach of the bye-law aforefaid; and the faid penalty or forfeiture being fo forfeited, due and payable as aforefaid, and remaining unpaid, he the faid Sammel afterwards, (to wit) on the fame day and year in the faid declaration men. tioned, at Winterbourn aforefaid, was requested by the faid John Withers Sherwood to pay the fame, but the faid Samuel then and there wholly refufed to pay the fame; and because the faid fum of 35. at the faid time when, &c. was in arrear and unpaid, he the faid George, as bailiff of the faid John Withers Sherwood, well acknowledges the taking of the faid cattle in the faid place in which, &c. and being within the faid manor; and juftly, &c. and for and in the name of a diftrefs, for the penalty or forfeiture fo due and in arrear as laft aforefaid; and this the faid George is ready to verify: wherefore he prays judg ment, and a return of the faid cattle, together with his da mages, cofts and charges, according to the form of the ftatute in that cafe made and provided, to be adjudged to him, &c. and the faid George, for further cognizance in this behalf, by cognizance. leave of the court here for this purpose first had and obtained, according to the form of the ftatute in that cafe made and provided, as bailiff of the faid John Withers Sherwood, well acknowledges the taking of the faid cattle in the faid place in which, &c. and justly, &c. because he fays, that the faid place, called White's Hill, in which, &c. and at the faid time when, &c. was a certain large wafte or common, containing forty acres of pafture, lying and being within the faid parifh of Winterbourn, and within the manor of Winterbourn aforefaid; and that within the faid manor there now is, and from time whereof the memory of man is not to the contrary, there hath been also another wafte or common, called Winterbourn Down, otherwife Winterbourn Common, of which faid manor with the appurtenances, the

The Third

laws let out

mon, and is

or not; fo

faid John Withers Sherwood, long before, and at the time when, c. was feifed in his demefne as of fee; and that the faid John Withers Sherwood, and all thofe whofe eftate he hath of and in the faid manor, with the appurtenances, from time whereof the memory of man is not to the contrary, have had, and have ufed and been accustomed to have, and ftill of right ought to have, a certain court leet, or view of frankpledge, of the refants within the faid manor, to be held twice within every year, (that is to fay) once within a month after the Feast of Eafter, and once within a month after the Feast of Saint Michael, in every year; and that within the faid manor there is, and from time The custom whereof the memory of inan is not to the contrary hath been, to make byea certain ancient cuffom there ufed and approved of, (that is to in this cogfay,) that the jury of the faid court leet, from time to time for nizance is for and during all the time aforefaid, have been used and accuftom- the jury of the ed, at the fame court leet, to make reasonable bye-laws and ordi- leet to make bye-larus for nances for the better prefervation and regulation of the commons the regulation within the faid manor, and the grafs and herbage growing in of the comthe same, and to impofe fuch reasonable penalties on any farmer lent as to the or tenant of the fame manor that fhould infringe or break fuch bye- confent of the taw or bye-laws, as they from time to time have thought proper: commoners, and the faid George further fays, that the faid John Withers Sher- either prefent wood, and all thofe whofe eftate he hath, and, at the faid time differs from when, &c. had of and in the faid manor, with the appurte- both the fornances, from time whereof the memory of man is not to the mer cognicontrary, have demanded, received and taken, and have used and been accuftomed to demand, receive and take, from every tenant or farmer of any lands or tenements within the fame manor, offending against fuch bye-law, or bye-laws, the feveral and refpective penalties or forfeitures impofed or incurred by fuch tenant or farmer, by the breach or breaches of fuch bye-law or bye-laws; and in cafe of refufal, or non-payment thereof, after a reasonable request and demand thereof made, have, during all the time aforefaid, diftrained, and have used and been accuftomed to diftrain, the beafts and cattle of fuch tenant or farmer, for the respective penalty or penalties, forfeiture or forfeitures, by him incurred as aforefaid, in any place within the fame manor and the faid George further fays, that at the court leet or view of frankpledge of the faid John Withers Sherwood, holden at Winterbourn in and for the faid manor, within one month after the Feast of Saint Michael, in the year of our Lord one thousand feven hundred and fixty-four, (to wit) on the fixteenth day of October in that year, before Chriftopher Griffith Gentleman, then steward of the faid court; the jury impannelled, charged and fworn to ferve at and for the fame court leet, in purfuance of the faid cuftom, did in due manner make and orVol. III.

M

dain

zances.

Demurrers.

dain a certain bye-law for the better prefervation of the commons within the fame manor, by which faid bye-law the faid jury did then and there order, that no perfon or perfons fhould depafture any Sheep, horfes, cattle, or any other beast whatfoever, on Winterbourn Down, otherwife Winterbourn Common, or any other common belonging to the tything of Winterbourn within the faid manor, from Saint Thomas's day to Lady-day yearly in every year, from thenceforth for ever thereafter, on pain of forfeiting twenty fhillings for each fherp, beaft or any other cattle, of what nature or kind foever, which should be depaflured thereon contrary to the faid bye-law, and all former bye-laws; of which faid bye-law the faid Samuel Gerrish afterwards, (to wit) on the fame day and year laft aforefaid, at Winterbourn aforefaid, had notice: and the faid George further faith, that after the making of the faid bye-law, and between Saint Thomas's day and Lady-day, and a little before the faid time when, &c. (that is to fay) on the faid thirty-firft day of January, in the year of our Lord 1769, at Winterbourn aforefaid, the faid Samuel Gerrish did put the faid cattle in the faid declaration mentioned into the faid common, called Winterbourn Down, otherwise Winterbourn Common, the fame then being a common belonging to the faid tything of Winterbourn, within the faid manor, to de-pafture there, whereby the faid penalty or forfeiture of twenty fhillings, for cach beaft fo depaftured by the faid Samuel on the faid place in which, &c. amounting in the whole to the fum of thirty-five pounds, then and there accrued and became forfeited, due and payable, to the faid John Withers Sherwood, then lord of the faid manor, for breach of the bye-law aforefaid; and the faid penalty or forfeiture being fo forfeited, due and payable as aforefaid, and remaining unpaid, he the faid Samuel afterwards, fto wit) on the fame day and year in the faid declaration mentioned, at Winterbourn aforefaid, was requested by the faid John Withers Sherwood to pay the fame, but the faid Samuel then and there wholly refufed to pay the fame, and because the said fum of thirty-five pounds, at the faid time when, &c. was in arrear and unpaid, he the faid George, as bailiff of the faid John Withers Sherwood, well acknowledges the taking of the faid cattle in the faid place in which, Sc. and justly, &c. the fame being within the faid manor, for and in the name of a diftrefs, for the faid penalty or forfeiture fo due and in arrear, as laft aforefaid; and this the faid George is ready to verify: wherefore he prays judg ment, and a return of the faid cattle, together with his damages, cofts and charges, according to the form of the ftatute in that cafe made and provided, to be adjudged to him, &c.

G. Nares.

And the faid Samuel, as to the faid cognizance of the faid George, by him firft above made, fays, that the faid George, by

2

reafon