in the parish of aforesaid; and the said C. D. further saith, that long before any of the said several times, when, &c. to wit, on, &c. (n) at, &c. aforesaid, by a certain deed made between I. K. (0) the then owner of the said close, in which, &c. and who was then seised thereof in his demesne as of fee, and L. M. who was then seised in his demesne as of fee of the said close, now of the said C. D. and whose estate therein he the said C. D. now hath, but which deed hath since been lost and destroyed by accident, and therefore cannot be brought into the said court here, and the date whereof is for that 1 reason wholly unknown to the said C. D., the said I. K. so then being owner of the said close, in which, &c. did grant to the said L. M. so then being the owner of the said close now of the said C. D. and to the heirs and assigns of the said L. M. a certain way from a certain public king's highway, in the parish aforesaid, into, through, over, and along the said close, in which, &c. unto and into the said close now of the said C. D. and so back again from the said last-mentioned close, into, through, over, and along the said close, in which, &c. unto and into the said public king's highway, to go, return, pass and repass on foot by himself, and themselves, and his and their servants, and with horses, mares and geldings, carts and carriages, in and along the said last-mentioned way, every year, and at all times of the year, at his and their free will and pleasure. By virtue of which said grant, the said C. D. (q) before and at the said several times when, &c. was and still is entitled to such way as last aforesaid; and the said C. D. being so seised and entitled to such way as last aforesaid, he the said C. D. at the said several times when, &c. having occasion to use the said way, did with his servants, and with his said horses, mares and geldings, carts and carriages, at the said several times when, &c. go, pass, and repass, in, by, through, and along the said way from the said common king's highway, into, through, over, and along the said close of the said A. B. in which, &c. unto and into the said close now of the said C. D. and so from thence back again, in, by, through, and along the said way, unto and into the said common king's highway, using the said way there for the purpose and on the occasion aforesaid, as he lawfully might for the cause aforesaid, and in so doing, &c. [Same as in the precedent, ante, 621, from the t to the end,

PRIVATE
WAYS.

[*625]

(n) Some day about the time when it can be proved the user of the way first took place, and whilst the estates were in possession of some person seised in fee, or his tenant.

(0) The names of the parties must be stated, 10 East. 55.

(9) Quære if the derivative title ought not to be stated.

PRIVATE justifying the trespasses according to the facts, observing the introductory part of the plea.]

(r).

WAYS.

Right of way [First plea, general issue, as ante, 568.-Second plea, prescriptive of necessity right of way, as ante, 622-Third plea, right of way by grant as in the last precedent.-Fourth plea, as follows:-] And for a fur[626] ther plea in this behalf, as to the said several supposed trespasses in seised of ad- the introductory part of the said second plea mentioned and therein joining close. justified, the said C. D. by like leave, &c. says, (actio nom, &c. as ante,

Defendant

4

thereof, and of locus in

quo.

470, fourth precedent,) because he says that he the said C. D. before and at the said several times, when, &c. was and still is seised in his demesne as of fee, of and in a certain close, called -contiguous and next adjoining to the said close, in which, &c. and that a E. F. former- certain person whose name is to the said C. D. unknown, and whose ly seised estate in the said close, called the said C. D. now hath, before and at the time of the making of the alienation and conveyance hereinafter mentioned, was seised in his demesne as of fee, as well of and in the said close, in which, &c. as of the said other close now of E. F. aliens the said C. D. with their respective appurtenances; and the same locus in quo. person being so seised of the said closes respectively, long before any of the said several times, when, &c. to wit, on, &c. A. D. —, at the parish aforesaid, duly granted, aliened, and conveyed the said close, in which, &c. to a certain other person, whose name is to the said C. D. unknown, and to the heirs and assigns of such last-mentioned person; by means whereof the said last-mentioned person then and there became and was seised in his demesne as of fee, of and in the said close, in which, &c.; and the said C. D. further saith that at the time of the said alienation and conveyance of the said close, in E. F. having which, &c. the said person who was so seised thereof, and so alienno other way ed and conveyed the same as aforesaid, not having any other way to close than the said close, now of the said C. D. otherwise than from and out of a over locus in certain public highway in the county aforesaid, into, through, over, quo, of right had such and along the said close, in which, &c. by reason thereof the said person who so aliened and conveyed the said close, in which, &c. as aforesaid, after such alienation and conveyance, necessarily whilst he continued seised of the said close now of the said C. D. ought to have had, and of right had, and the said C. D. so having the estate of the said person as aforesaid, before and at the said several times, when,

to the other

way.

(r) See the precedents, Lutw. 1487. -9 Wentw. 161, 2, &c. 8 T. R. 50. and as to the law and the use of this plea, 1 Saund. 323. a. b. n. 6.---8 T. R.

50.-Cro. Jac. 170.-1 Bos. & Pul. S74. n. a.-Willes. 71.-Quære as to this form, see 10 East. 57.

PRIVATE

WAYS.

[*627]

tled to the

&c. necessarily had, and of right ought to have had, and still of right ought to have, a convenient way to the said close now of the said C.D. from the said highway, into, through, over, and along the said and since the alienation close, in which, &c. and that the said person who so aliened and con- E. F. &c. veyed the said close, in which, &c. and all the occupiers of the said were enti close, now of the said C. D. after the said alienation and conveyance necessary of the said close, in which, &c. had and were accustomed to have, and way. of right ought to have had, and the said C. D. still of right ought to have a certain necessary way for themselves and their servants on foot, and with horses, mares and geldings, carts and carriages from the said highway, into, through, over, and along the said close, in which, &c. unto and into the said close, now of the said C. D. to go and return, pass and repass, in every year at all times of the year, for the necessary use and occupation of the said close, now of the said C. D., the same way being the nearest and most convenient way over the said close, in which, &c. to the said close now of the said C. D. Wherefore at the said several times, when, &c. the said C. D. being so seised as aforesaid, and in the actual occupation of his said close, and having occasion to use the said way, did with his servants, and with his horses, mares and geldings, carts and carriages, at the said several times when, &c. pass and repass, in, by, through, and along the said way, from the said common king's highway, into, through, over, and along the said close of the said A. B. in which, &c. unto and into the said close now of the said C. D. and from thence back again, in, by, through, and along the said way unto and into the said common king's highway; using the said way there, for the purpose and on the occasion aforesaid, as he lawfully might for the cause aforesaid. And in so doing, &c. [Same as the precedent, ante, 621, from the t to the end, justifying the trespasses according to the facts, observing the introductory part of the plea.]

under a

lease, or

from year to year, in [*628]

[See the precedents, Rast. East. 618. a. b.-Lutw. 1427. The plea Private way stating the possessory right will resemble that claiming a right of by a tenant common by a tenant as pointed out, ante, 612.-The lease for years, or the demise from year to year, and the entry of the lessee are to be stated as ante, 264. 565, *and where the defendant claims under a freeholder by prescription, are to be inserted in the precedent, ante, above cases. 622, immediately after the statement of the right of common; and if under a copyholder, immediately after the statement of the grant of the customary tenement and the copyholder's entry, ante, 623.]

either of the

TITHES.

[First plea, general issue, as ante, 568.]—And for a further plea ENTRY FOR in this behalf, as to the breaking and entering the said close in the 30

VOL. II.

TITHES.

Justification

ENTRY FOR Said declaration mentioned, and with feet in walking, treading down, trampling upon, consuming, and spoiling the grass and corn of the entry on land said A. B. there then growing, and with the wheels of the said carts, to take tithe waggons, and other carriages, and with the feet of the said cattle (8). drawing the same, treading down, trampling upon, consuming and destroying other the grass and corn of the said A. B. there standing and being in shocks and sheaves, and the said quantities of corn in the said close, taking and carrying away, and converting and dispos ing thereof to their own use, above supposed to have been done by the said C. D. and E. F., they the said C. D. and E. F. by leave of the court here for this purpose first had and obtained, according to the form of the statute in that case made and provided, say, that the said A. B. ought not to have or maintain his aforesaid action thereof against them, because they say, that the said C. D. long before, and at the said first time, when, &c. was and from thence hitherto hath been and still is rector of the rectory of the parish church of

in the said county of and that the said close in the said declaration mentioned, called, &c. in which, &c. at the said several times, when, &c. in the said first count mentioned, was situate, lying, and being in the parish of, aforesaid, and within the bounds, limits, and tithable places of the same parish, and that all and singu lar the tithes of corn and grain yearly arising, growing, renewing, and [*629] happening, in, *upon, and from the said close, in which, &c. from time whereof the memory of man is not to the contrary, of right ought to have been, and still of right ought to be yielded and paid in kind to the rector of the said rectory for the time being. And the said C. D. and E. F. further say, that divers quantities of wheat, oats, and barley, in the year of our Lord ——, aforesaid, grew and arose in the said close, in which, &c. and that before any of the said times when, &c. in the said first count mentioned, to wit, on, &c. in the year last aforesaid, the said last-mentioned wheat, oats, and barley were cut down, and the tenth part thereof duly severed from the residue thereof, and set out as and for the tithe of the said last-mentioned wheat, oats, and barley, according to the immemorial usage and custom within the said parish, and were at the said times when, &c. in the said first count mentioned, in the said close, for the use of him the said C. D. as such rector as aforesaid, whereupon the said C. D. as such rector as aforesaid, and the said E. F. as his servant, and by his command, afterwards, to wit, on the said first time, when, &c. in

(s) See the precedents, 9 Wentw. Ind. LXXXVI. and 10. Co. 88. a. 91. a. and Com. Dig. Pleader, 3 M. 40.-As

to the replication, see Cro. Jac. 224 and Yelv. 157. and Cóm. Dig. Pleader, F. 18, 19.

TITHES.

[*630]

the said first count mentioned, the same being respectively within a ENTRY FOR reasonable time after the cutting down of the said wheat, oats, and barley, entered the said close, in which, &c. with the said carts, waggons, and other carriages in the said declaration mentioned, drawn with the said cattle therein also mentioned, in, by, through, and along the usual way and entrance into the said close, in which, &c. and to take, fetch, and carry away the said tithes, the same being the said corn in the said first count mentioned, and therein alleged to have been taken and carried away by the said C. D. and E. F. and the same having been so severed and set out as aforesaid, and did then and there within a reasonable time for that purpose take and carry away the same out of the said close, in which, &c. in the said waggons, carts, and other carriages, and converted and disposed thereof to their own use, and in so doing he the said C. D. and the said E. F. as his servant as aforesaid, did at those respective times, with their feet in walking, necessarily and unavoidably *tread down, trample upon, consume, and spcil a little of the grass and corn of the said A. B. growing and being in the said close, and with the wheels of the said carts, waggons, and other carriages, and with the feet of the said cattle drawing the same, did necessarily and unavoidably tread down, trample upon, consume, and spoil a little of the grass and corn of the said A. B. there growing, and the said cattle drawing the said carriages while the said tithes were so being taken, fetched, and carried away as aforesaid by stealth and morsels, and against the will of the said C. D. and E. F. eat up, consumed, and destroyed a little of the corn of the said A. B. in the said close, in shocks and sheaves, the said C. D. and E. F. doing no unnecessary damage to the said A. B. on the occasion aforesaid, which are the same supposed trespasses in the introductory part of this plea mentioned, and whereof the said A. B. hath above in the said first count in that behalf complained against the said C. D. and E. F. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent. Add a plea of licence, as ante, 608, if there be any evidence to support it.]

PROCESS.

[First plea, general issue, as ante, 568. Second plea, as follows:] UNDER MESNE And for a further plea in this behalf, as to the breaking and enter- Justification ing the said dwelling-house of the said A. B. in the said first count of entry into of the said declaration mentioned, and making a noise and disturb-house, and breaking inance therein, and staying and continuing therein making such noise ner doors, and disturbance, without the leave or licence, and against the will of &c. under a latitat, and the said A. B. for the said space of time in the said first count men- sheriff's war

1

(t) See the precedent, Thomp.Ent. 299. and as to this plea in general, 3 Bos, and Pul. 229.

rant thereon

(t).