W. L. and the plaintiff for their lives. faid place in which, &c. eating up the grafs there then growing, and doing damage there, the fame Francis, in his own proper right, well avows the taking of the cattle aforefaid in the faid place in which, &c. and justly, &c. fo doing damage there; and this he is ready to verify; wherefore he prays judgment and a return of the cattle aforesaid, together with his damages, cofts, and charges in this behalf fuftained, according to the form of the statute in fuch cafe lately made and provided, to be adjudged to him, &c. Bar, that T. M. And the faid John Liddiard fays, that the faid Francis, for the was feifed infee, reafon before alledged, the taking of the cattle aforesaid in the faid and demifed to place in which, &c. ought not to avow juft; becaufe by protesting that the fame place in which, &c. at the faid time when, &c. was not the freehold of him the said Francis as is above supposed; for plea the fame John fays, that long before the faid time of the taking of the cattle aforefaid in the faid place in which, &c. to wit, on the twenty-firft day of Auguft, in the tenth year of the reign of the lord James, late king of England, &c. Theodore Newton, knight, was feifed in his demefne as of fee of and in one meffuage and forty-feven acres and a half of land, arable, mea. dow, and pafture, with the appurtenances, in Hannam and Bitton, in the parish of Bitton aforefaid, in the county aforefaid; and. being fo thereof feifed afterwards, to wit, on the faid twenty-first day of Auguft, in the tenth year of the reign of the lord James, late king of England abovefaid, at Bitton aforesaid, in the county aforefaid, demifed the meffuage aforefaid, and the faid forty-feven acres and a half of land, arable, meadow, and pasture, with the appurtenances, to William Liddiard and Katharine his wife, and him the faid John Liddiard, to hold to the faid William Liddiard and Katharine his wife for and during the term of their natural lives, and the natural life of the longer liver of them, and after their decease, the remainder thereof to the faid John Liddiard for and during the term of the natural life of him the faid John; by virtue of which faid demife the fame William and Katharine afterwards, to the faid meffuage and the faid forty-feven acres and a half of land, arable, meadow, and pasture, with the appurtenances, were feifed in their demefne, as of freehold, for the term of their lives and the life of the longer liver of them, the remainder thereof after their deccafe to the faid John for the term of his life fo as aforefaid belonging; and the faid William and Katharine being fo thereof feifed, afterwards, to wit, on the first day of September, in the thirty-fecond year of the reign of the lord Charles the Second, now king of England, &c. at Bitton aforefaid, in the county aforefaid, died thereof feised; after the death of which, the faid William and Katharine, he the faid John, as in his remainder aforefaid, afterwards, to wit, on the said first day of September, in the thirty-fecond year of the reign of the lord Charles the Second, now king of England, &c. at Bitton aforefaid, in the county aforefaid, into the meffuage aforefaid, and the faid forty-feven acres and a half of land, arable, meadow, and pasture, paffure, with the appurtenances, by virtue of the demife aforefaid entered, and was and is yet thereof feifed in his demefne as of freehold for the term of his life: And the fame John further fays, that at the time of the demife aforefaid made, he the faid Theodore Newton, and all those whose eftate the fame Theodore then bad of and in the faid mefluage and forty-feven acres and a half of land, arable, meadow, and pafture, with the appurtenances, have Prefcription of bad, and for time out of mind have been accustomed to have for common. themfelves, their farmers, and tenants of the faid meffuage, and the faid forty-feven acres and a half of land, arable, meadow, and pafture, with the appurtenances, common of pafture in the faid place in which, &c. for all their commonable cattle in and upon their tenements aforefaid, with the appurtenances, levant and couchant every year at all times of the year, as to their tenements aforefaid belonging and appertaining; by reafon whereof the faid John, before the faid time when, &c. to wit, on the ninth day of September, in the thirty-third year of the reign of the faid lord the now king, the cattle aforefaid in the declaration aforesaid above fpecified, being then the proper cattle of him the faid John, upon the faid forty-feven acres and a half of land, arable, meadow, and pafture, with the appurtenances, then levant and couchant, into the faid common called Hannam's Common, being the place in which, &c. put as he well might to ufe his common aforefaid, and the faid Francis the faid cattle, to wit, the faid thirty fheep in the faid place in which, &c. put feeding on the grafs there growing, and ufing the common of pafture of him the faid John there afterwards, at the faid time when, &c. to wit, on the tenth day of September, in the thirty-third year abovefaid, at Bitton aforefaid, in the faid place in which, &c. commonly called Hannam's Common, took, and then unjustly detained, against fureties and pledges, in manner and form as the faid John above against him complains; and this the faine John is ready to verify; wherefore he prays judgment and his damages by reafon of the taking and unjuft detention of the cattle aforefaid to be adjudged to him, &c. that it is his freehold. And the faid Francis Crefwick (as before) fays, that the faid Replication, fifty acres of pasture called Hannam's Common, otherwise Hannam's Heath, are, and at the fame time when, &c. were the foil and freehold of him the faid Francis; and because the cattle aforefaid, at the faid time when, &c. were in the fame place in which, &c. eating up the grafs then there growing, and doing damage there, the faid Francis the fame cattle took as he hath above alledged; without that, that the faid Theodore, and all thofe whofe Traverse of the eftate the fame Theodore then had of and in the faid meffuage prefcription. and forty-feven acres and a half of land, arable, meadow, and pafture, with the appurtenances, have had, and from time out of mind have been accustomed to have for themfelves, their farmers, and tenants of the faid meffuage and the faid forty-feven acres and a half of land, arable, meadow, and pafture, with the appurte nances, traverfe. nances, common of pafture in the faid place in which, &c. for all their commonable cattle in and upon their tenements aforefaid, with the appurtenances, levant and couchant every year at all times of the year, as to their tenements aforefaid belonging and appertaining, as the faid John in bar to the avowry aforefaid hath above alledged; and this he is ready to verify; wherefore he prays judgment and a return of the cattle aforefaid, together with his daIffue on the mages, &c. to be adjudged to him, &c.: And the faid John Liddiard (as before) fays, that the faid Theodore Newton, and all those whofe eftate the faid Theodore then had in the faid meffuage and forty-feven acres and a half of land, arable, meadow, and pafture, with the appurtenances, have had, and from time out of mind have been accustomed to have for themselves, their farmers, and tenants of the faid meffuage and the faid forty-feven acres and a half of land, arable, meadow, and pafture, with the appurtenances, common of pasture in the faid place in which, &c. for all their commonable cattle in and upon their tenements aforefaid, with the appurtenances, levant and couchant every year at all times of the year, as to their tenements aforefaid belonging and appertaining in manner and form as he the faid John Liddiard have above alledged; and this he prays may be enquired of by the country, and the faid Francis likewife; therefore the fheriff is commanded that he caufe to come before the lord the king in the octave of St. Hilary, wherefoever, &c. twelve, &c. by whom, &c. and who neither, &c. to recognize, &c. because as well, &c. the fame day is given to the parties aforesaid, &c. An avowry to a BROWNE. AND the faid Robert, by, &c. his attordeclaration in at the fuit ofney, comes and defends the force and injury, replevin by free- CLIFFORD. when, &c. and well avows the taking of the faid holder damage cattle in the faid place in which, &c. and juftly, &c.; because he feafant. fays, that the faid R. long before the faid time when the faid cattle is above fupposed to have been taken, and at the faid time when, &c. was and yet is feised in his demefne as of fee of and in the faid place called Tovey Reddings, in which, &c. and being fo thereof feifed, because that the faid cattle, at the faid time when, &c. were in the faid place in which, &c. feeding on the grafs of the faid Robert there then growing, and doing damage there to the faid R. he the faid R. well avows the taking of the faid cattle in the faid place in which, &c. at the faid time when, &c. then and there fo feeding on the grafs of the faid B. there then growing, and fo doing damage there to the faid R. B. and justly, &c.; and this he is ready to verify; wherefore he prays judgment and a return of the cattle, together with his damages, &c. according to the form of the ftatute, &c.: And the faid R. further, by leave of the court here for that purpofe first had and obtained, according to the form of the ftatute in fuch cafe made and provided, as to the taking of one heifer, part of the faid cattle in the faid declaration mentioned, fays, that that heifer, at the said time when the the fame was fo taken, was the property of one Samuel Cliffold; Plea of property without this, that that heifer, at the faid time when, &c. was the in a third per property of the faid Nathaniel; and this he is ready to verify; fon. wherefore he prays judgment if the faid Nathaniel ought to have his faid action thereof against him; and he alfo prays judgment and a return of the faid one heifer, together with his damages, cofts, and charges in this behalf fuftained, according to the form of the ftatute in fuch cafe made and provided, to be adjudged to him, &c. W. HAYWARD. And the faid Nathaniel, as to the faid plea of the faid Robert Plea to the a first above pleaded, faith, that the faid R. by reafon of any thing bove avowry. in his faid plea firft pleaded above alledged, ought not to avow the taking of the said cattle in the faid place in which, &c. to be just; because he faith, that he the faid Nathaniel, long before, and at the faid time when, &c. was and yet is lawfully poffeffed of and in a certain close of land, with the appurtenances, called the Great Hedge, in the parish of B. aforefaid, lying contiguous and next adjoining to the faid place in which, &c. ; and that the faid R. and all other the farmers, tenants, and occupiers of the faid place in which, &c. for the time being respectively, from time whereof the memory of man is not to the contrary, until the defect thereof hereinafter mentioned, have maintained and repaired, and have ufed and been accustomed to maintain and repair, and the faid R. ftill of right ought to maintain and repair the fence between the faid place in which, &c. and the faid clofe of the faid N. called the Great Hedge, when and as often as occafion hath required, to prevent cattle feeding and depafturing in the great close called the Great Tyning from efcaping into the faid clofe in which, &c. for want of a fufficient fence; and the faid N. being fo poffeffed of and in the said clofe called Great Tyning, with the appurtenances, he the said N. before the faid time when, &c. put his faid cattle into the faid clofe called Great Tyning to depafture the grafs there then growing, as it was lawful for him to do: And the faid N. further fays, that the fence between the faid clofe called Great Tyning, and the faid place in which, &c. at the faid time when, &c. was ruinous and in great decay for want of neceffary repairing and amending thereof; by reafon whereof the faid cattle of the faid N. depafturing the grafs in the faid close called Great Tyning, then growing for want of a fufficient fence between the faid place in which, &c. and the faid clofe called Great Tyning, at the faid time when, &c. against the will of the faid N. efcaped from the faid clofe called Great Tyning into the faid place in which, &c. and depaftured the grafs there then growing until the faid R. afterwards and before the faid N. had notice of the faid cattle being so escaped as aforefaid, to wit, on the faid twenty-fixth day of May, in the year aforefaid, of his own wrong took the faid cattle in the faid place in which, &c. and unjustly detained them against fureties and pledges until, &c. in manner and form as the faid N. hath above in his faid declaration in that Vol. VIII. be с Replication to behalf alledged; and this he is ready to verify; wherefore fince And the faid R. as to the faid plea of the faid N. by him above the above plea. pleaded in bar to the faid avowry, fays, that he, by any thing therein contained, ought not to be barred from avowing the faid taking of the faid cattle in the faid place in which, &c. as juft, or from having a return of the faid cattle; becaufe he says, that true it is that the faid R. and all other farmers, tenants, and occupiers of the faid clofe in which, &c. for the time being refpectively from time whereof the memory of man is not to the contrary, have maintained and repaired, and have been uled and accuftomed to maintain and repair, and that the faid R. ftill ought to maintain and repair the fence between the faid place in which, &c. and the faid clofe called Great Tyning when and as often as occafion hath required, to prevent cattle depafturing in the faid clofe called Great Tyning from efcaping into the faid clofe called Great Helge, in which, &c. for want of a fumcient fence between thofe clofes as the faid N. hath above in pleading alledged; yet for replication in this behalf the faid R. fays, that the faid fence between the faid place in which, &c. and the faid close called Great Tyning before the faid time when, &c. to wit, on the fame day and year in the faid declaration mentioned, was in good, neceffary, and tenantable repair, and fufficient to prevent cattle depafturing in the faid clofe called Great Tyning from escaping thereout into the faid place in which, &c.; and that the faid fence fo being in good, neceffary, and tenantable repair, and fufficient for the purpose aforefaid, he the faid N. afterwards, and before the faid time when, &c. to wit, on the fame day and year in the faid declaration at the parish aforefaid, of his own wrong, with force and arms pulled down and proftrated a great part of the faid fence, and made gaps and breaches therein, and that the faid cattle, before the faid time when, &c. to wit, on the fame day and year aforefaid, of wrong and injury of the faid N. escaped out of the faid clofe called Great Tyning, through thofe gaps and breaches fo made or caufed to be made in the faid fences by the faid N. or through |