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reafon of any thing in that cognizance alledged, ought not to acknowledge the taking of the faid cattle in the faid place, in which, &c. because he fays, that the faid cognizance, and the matters therein contained, are not fufficient in law for the faid George, to acknowledge the taking of the faid cattle, in the faid place, in which, &c. to which faid cognizance, in the manner the fame is above made, he the faid Samuel is not under any neceflity, nor obliged by the law of the land, to answer; and this he is ready to verify: wherefore, for want of a fufficient cognizance in this behalf, the faid Samuel prays judg ment, and his damages, by reafon of the taking of the faid cattle, to be adjudged to him, &c. And as to the faid cognizance of the faid George, by him fecondly above made, the faid Samuel fays, that the faid George, by reafon of any thing in that cognizance alledged, ought not to acknowledge the taking of the faid cattle, in the faid place, in which, &c. because he says, that the faid cognizance, and the matters therein contained, are not fufficient in law, for the faid George to acknowledge the taking of the faid cattle, in the faid place, in which, c. to which faid cognizance, in manner the fame is above made, he the faid Samuel is not under any neceffity, nor obliged by the law of the land, to answer; and this he is ready to verify: wherefore, for want of a fufficient cognizance in this behalf, the faid Samuel prays judgment, and his damages by reafon of the taking of the faid cattle, to be adjudged to him, &c. And as to the faid cognizance of the faid George, by him laftly above made, the faid Samuel faith, that the faid George, by reafon of any thing in that cognizance alledged, ought not to acknowledge the taking of the faid cattle, in the faid place, in which, &c. because he fays, that the faid cognizance, and the matters therein contained, are not fufficient in law for the faid George to acknowledge the taking of the faid cattle, in the faid place, in which, &c. to which faid cognizance, in manner the fame is above made, he, the faid Samuel is not under any neceffity, nor obliged by the law of the land to anfwer; and this he is ready to verify: wherefore for want of a fufficient cognizance in this behalf, the faid Samuel prays judgment, and his damages, by reafon of the taking of the faid cattle to be adjudged to him, &c.

W. Jephfon.

And the faid George fays, that the faid cognizance by him firft Joinders in above made, and the matters therein contained, are fufficient in demurrer. law for the faid George to acknowledge the taking of the faid cattle, in the faid place, in which, &c. to be just, which faid cognizance, and the matter therein contained, he the faid George is ready to verify and prove, as the court here fhall order; where

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fore,

Demurrers.

dain a certain bye-law for the better prefervation of the commone 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 whatsoever, 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 sheep, 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 Samul 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 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, 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 refufed to pay the fame; and because the said sum 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, &c. and juftly, &c. the fame being within the faid manor, for and in the name of a diftrefs, for the said penalty or forfeiture fo due and in arrear, as laft 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 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

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reafon

reafon of any thing in that cognizance alledged, ought not to acknowledge the taking of the faid cattle in the faid place, in which, &c. because he fays, that the faid cognizance, and the matters therein contained, are not fufficient in law for the faid George, to acknowledge the taking of the faid cattle, in the faid place, in which, &c. to which faid cognizance, in the manner the fame is above made, he the faid Samuel is not under any neceflity, nor obliged by the law of the land, to answer; and this he is ready to verify: wherefore, for want of a sufficient cognizance in this behalf, the faid Samuel prays judg ment, and his damages, by reafon of the taking of the faid cattle, to be adjudged to him, &c. And as to the faid cognizance of the faid George, by him fecondly above made, the faid Samuel fays, that the faid George, by reafon of any thing in that cognizance alledged, ought not to acknowledge the taking of the faid cattle, in the faid place, in which, &c. because he says, that the faid cognizance, and the matters therein contained, are not fufficient in law, for the faid George to acknowledge the taking of the faid cattle, in the faid place, in which, c. to which faid cognizance, in manner the fame is above made, he the faid Samuel is not under any neceffity, nor obliged by the law of the land, to answer; and this he is ready to verify: wherefore, for want of a fufficient cognizance in this behalf, the faid Samuel prays judgment, and his damages by reafon of the taking of the faid cattle, to be adjudged to him, &c. And as to the faid cognizance of the faid George, by him laftly above made, the faid Samuel faith, that the faid George, by reafon of any thing in that cognizance alledged, ought not to acknowledge the taking of the faid cattle, in the faid place, in which, &c. because he fays, that the faid cognizance, and the matters therein contained, are not fufficient in law for the faid George to acknowledge the taking of the faid cattle, in the faid place, in which, &c. to which faid cognizance, in manner the fame is above made, he, the faid Samuel is not under any neceffity, nor obliged by the law of the land to anfwer; and this he is ready to verify: wherefore for want of a fufficient cognizance in this behalf, the faid Samuel prays judgment, and his damages, by reafon of the taking of the faid cattle to be adjudged to him, &c.

W. Jephfon.

And the faid George fays, that the faid cognizance by him first Joinders in above made, and the matters therein contained, are fufficient in demurrer. law for the faid George to acknowledge the taking of the said cattle, in the faid place, in which, &c. to be juft, which faid Cognizance, and the matter therein contained, he the faid George is ready to verify and prove, as the court here fhall order; where

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fore,

fore, in as much as the faid Samuel doth not deny the faid matter, nor in any wife make anfwer thereto, but hath wholly refufed to admit the verification thereof, he the faid George prays judgment, and a return of the faid cattle, together with his damages, &c. according to the form of the ftatute in fuch cafe made and provided, to be adjudged to him, &c. And the faid George fays, that the faid cognizance by him fecondly above made, and the matters therein contained, are fufficient in law for the laid George, to acknowledge the taking of the faid cattle, in the faid place in which, &c. to be juft; which said cognizance, and the matter therein contained, he the faid George is ready to verify and prove, as the court here fhall order: wherefore, in as much as the faid Samuel doth not deny the faid matter, nor in any wife make answer thereto, but hath wholly refufed to admit the verification thereof, he, the aid George, prays judgment, and a return of the faid cattle, together with his damages, &c. according to the form of the ftatute in such case made and provided, to be adjudged to him, &c. and the said George fays, that the faid cognizance by him thirdly above made, and the matters therein contained, are fufficient in law for the faid Georgeto acknowledge the taking the faid cattle, in the faid place in which, &c. to be juft; which faid cognizance, and the matter therein contained, he, the faid George, is ready to verify and prove here, as the court hall order: wherefore, in as much as the faid Samuel doth not deny the faid matter, nor in any wife make answer thereto, but hath wholly refufed to admit the verification thereof, he, the faid George, prays judgment, and a return of the said cattle, together with his damages, &c. according to the forra of the ftatute in fuch cafe made and provided to be adjudged to him, &c. and because the juftices here will advise themselves of and upon the premifes, before they give their judgment thereon, day is given to the faid parties here, until eight days of Saint Hilary, to hear their judgment; for that the faid justices here are not yet advised thereof.

[See ante pa. Gerrish verfus Rodman alias Rodborne. C. B.

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Replevine

Cognizance.

REPLEVIN by Gerrifh against Rodman; the plaintiff declared of taking and detaining thirty-five fheep, at the parish of Winterbourn, in a certain place there, called White's Hill, on the. thirty-first day of January, in the ninth year of the reign of the prefent King.

The defendant, as bailiff of John Withers Sherwood Esq. made three cognizances, by leave of the court. He fhewed, by his firft cognizance, that the place in which, &c. is a certain waste or common, containing forty acres of pafture within the parish

of

the leet to

of to impofe

penalties on

the manor,

of Winterbourn, and within the manor of Winterbourn; and that within the manor there is, and from time whereof, &c. there hath been also another waste or common, called Winterbourn Down, otherwife Winterbourn Common; of which manor the 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 in the manor, from time whereof, &c. have had, and ftill of right ought to have, a court leet of refiants within the manor, to be held twice in every year; (viz.) once within a month after Eafter, and once within a month after Michaelmas: and A custom for that within the manor there is, and from time whereof, &c. the jury at hath been an ancient cuftom there ufed; (that is to fay) that the jury make byeof the faid court leet, from time to time for and during all the time laws; and for aforefaid, have been used and accustomed, at the fame court leet, by breach thereand with the confent of the greater part of the commoners having pen right of common on the waftes of the faid manor, to make reafonable any farmer bye-laws and ordinances for the better prefervation and regulation or tenant of of the commons within the faid manor, and the grafs and herbage &c. and to growing in the fame; and to impofe reafonable penalties on any far- diftrain. mer or tenant of the fame manor that should infringe or break fuch bye-law, as they from time to time thought proper. And the defendant further fhewed, that the faid John Withers Sherwood, and all thofe whofe eftate he hath, and at the faid time when c. had in the manor, from time whereof &c. have demanded, received and taken, and have ufed 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 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 reasonable request and demand thereof made, have, during all the time aforefaid, diftrained and have ufed 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 defendant further fhews, that at the court leet of the faid John Withers Sherwood, holden at Winterbourn in and for the faid manor, on the fixteenth day of October 1764, 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, by and with the confent of the greater part of the commoners then having right of common upon the waste of the faid manor, in due manner make and ordain a certain bye-law for the better prefervation of the commons within the fame manor; by which faid bye-law the faid

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