Conclusion.

in the county and jurifdiction aforefaid; and thereupon, in confideration thereof, and alfo in confideration that the said Jofeph, at the special inftance and request of the faid Thomas, had then and there undertaken, and faithfully promised the said Thomas, to pay him one guinea, (that is to fay, one pound and one fhilling, of lawful, &c.) if the faid Thomas would beat the faid Jofeph in the faid intended game, (play or pay,) whenever after the determina. tion thereof he the faid Jofeph fhould be thereunto requested, he the faid Thomas undertook, and then and there faithfully promised the faid Jofeph to pay him, the faid Jofeph, two guineas, (that is to fay, the fum of two pounds and two fhillings, of like lawful money,) if the faid Jofeph fhould beat the faid Thomas in the faid intended game, (play or pay,) whenever after the determination thereof he the faid Thomas fhould be thereunto requested; and the faid Jofeph in fact fays, that afterwards, to wit, at the faid day, time, and place, appointed for playing and determining the faid intended game, to wit, at M. aforefaid, in the county and jurisdiction aforefaid, the faid Jofeph was ready and willing, and then and there attended, and tendered, and offered himself against the said Thomas, to play the faid game with him, according to the tenor and effect of the faid agreement; but that the faid Thomas did not, nor would then attend and play the faid game with the faid Jofeph, but then and there neglected and refufed fo to do, and therein, and then and there wholly neglected and made default therein; whereby, and by reafon whereof, and according to the tenor and effect of the faid promise and undertaking of the faid Thomas, he the faid Thomas then and there became liable to pay to the faid Jofeph the faid fum of two pounds and two fhillings, whenever afterwards he the faid Thomas fhould be thereto requested: Yet the faid Thomas, not regarding his faid promife and undertaking fo by him made as aforefaid, but contriving, and fraudulently intending, craftily and fubtilly to deceive and defraud the faid Jofeph in this behalf, hath not paid the fum of two pounds and two fhillings, or any part thereof, to the said Jofeph, (although fo to do, he the faid Thomas was requested by the faid Jofeph afterwards, to wit, on the third day of the faid month of October, in the year aforefaid, and often afterwards, to wit, at M. aforesaid, within the county and jurifdiction aforefaid,) but he fo to do hath hitherto wholly refused and still refuses. (2d Count, money had and received; and common conclufion.) Damages ten pounds. Suit, &c. THO. BARROW

ON

FEIGNED ISSUES.

YORKSHIRE, to wit. Be it remembered, that on Friday Feigned iffue to try a right of next after eight days from the day of St. Hilary in this fame Term, common in re- before our lord the king at Westminster, comes John Braithwaite, fpect of plain

tiff's freehold and copyhold estates on certain waste grounds inclosed by act of parliament, brought by a claimant against one of the commiffioners for inclosing by virtue of a clause in the said a&t. by

by John Damborough his attorney, and brings into the court of our faid lord the king, before the king himself now here, his certain bill against John Bradford, being in the cuftody of the marchal of the marshalfea of our lord the now king, before the king himself, of a plea of trefpafs on the cafe, and there are pledges for the profecution, to wit, John Doe and Richard Roe, which faid bill follows in these words, to wit: Yorkshire, to wit, John Braithwaite complains of John Bradford, being in the cuftody, &c. for this, to wit, that whereas on the first day of January A. D. 1795, at the township of Skelton in the faid county of York, a certain discourse was moved and had by and between the faid John Braithwaite and John Bradford, of and concerning a certain act of parliament made and paffed in the thirty-fourth year of the reign of our faid lord the prefent king, intituled, “An act for dividing and inclosing the open "common fields, ings, moors, commons, and wafte grounds with"in the township of Skelton, in the canon fee, manor, and parish "of Ripon, in the West Riding of the county of York," and of and concerning the moors, commons and waste grounds, by the said act intended to be divided and inclosed, and the rights of common thereupon; and upon that difcourfe a certain queftion then and there arose, and was debated between the faid plaintiff and the faid defendant, whether the faid plaintiff was entitled to a right of common in and upon the faid moors, commons and waste grounds, for or in refpect of the feveral freehold and copyhold tenements in the town of Skelton aforefaid, of him the faid John Braithwaite, hereinafter mentioned, that is to fay, one freehold meffuage, or scite of a meffuage, late Parker's, and known by the name of Terrel's Garth; one other freehold mefluage, or fcite of a meffuage, late Parker's, and known by the name of Rigg Garth; one freehold meffuage, or fcite of a meffuage, called Rapers; one copyhold cot, or fcite of a cottage; five copyhold meffuages, or fcite of meffuages, in Scruton Gates; or for or in refpect of any of the fame freehold or copyhold tenements; and thereupon the faid plaintiff then and there afferted and affirmed to the said defendant, that he the faid plaintiff was entitled to right of common in and upon the faid moors, commons, and wafte grounds, for and in refpect of all the faid freehold and copyhold tenements of him the faid plaintiff, which faid affertion and affirmation of the faid John Braithwaite the faid John Bradford then and there wholly denied; and thereupon afterwards, to wit, on the fame day and year aforefaid, at the township of Skelton aforefaid, in the county aforefaid, in confideration that the faid John Braithwaite, at the special inftance and requeft of the faid John Bradford, had then and there paid to the faid John Bradford the fum of nine pounds of lawful money of Great Britain, the faid John Bradford undertook, and then and there faithfully promised the faid John Braithwaite to pay him the sum of forty fhillings if the faid plaintiff was entitled to a right of common in and upon the faid moors, commons, and wafte grounds, for and in refpect of the faid firft mentioned freehold tenement of him the faid plaintiff; and the further fum of

forty

Pica.

forty fhillings, if the faid John Braithwaite was entitled to a right of common in and upon the faid moors, commons, and waste grounds, for and in respect of the faid freehold tenement of the faid plaintiff fecondly above mentioned; and the further fum of forty Thillings, if the faid plaintiff was entitied to right of common in and upon the faid moors, commons, and wafte grounds, for and in refpect of the said freehold tenement of the faid plaintiff thirdly above mentioned; and alfo the further fum of forty fhillings, if the faid plaintiff was entitled to a right of common in and upon the faid moors, commons, and wafte grounds, for and in refpect of the faid first mentioned copyhold tenement of the faid plaintiff; and the further fum of forty fhillings, for each of the faid five laft mentioned copyhold tenements of the faid plaintiff, for and in respect of which the faid plaintiff was entitled to right of com mon in and upon the said moors, commons, and walte grounds, if the faid plaintiff was entitled to fuch right of common for and in refpect of the faid five laft mentioned tenements, or any of them and the faid plaintiff avers, that he the faid plaintiff then was and is entitled to right of common in and upon the faid moors, commons, and wafte grounds, for and in refpect of each and every of the faid freehold and copyhold tenements of him the faid plaintiff, to wit, at the township of Skelton aforefaid, in the county aforefaid, whereof the faid defendant afterwards, to wit, on the fame day and year aforefaid, at the township of S. aforefaid, had notice; and by reafon of the premises aforefaid, the faid defendant then and there became liable to pay, and ought according to his faid promife and undertaking to have paid to the faid plaintiff the fum of eighteen pounds, to wit, the fum of forty Thillings for each of the faid feveral freehold and copyhold tenements of the faid plaintiff, for and in respect of which the faid plaintiff was entitled to fuch right of common as aforefaid: Yet the faid defendant, not regarding his faid promise and undertaking fo made in that behalf as aforefaid, but contriving and fraudulently intending, craftily and fubtilly to deceive and defraud the fid plaintiff in this behalf, hath not, although often requested, paid the fum of eighteen pounds, or any part thereof, to the said plaintiff, but to pay the fame, or any part thereof, to the said Alaintiff, hath hitherto wholly refused, and still doth refuse, to the faid plaintiff his damage of twenty pounds; and therefore he brings his fuit, &c,

And the faid defendant, by A. B. his attorney, comes and defends the wrong and injury when, &c. and fays, that the faid plaintiff ought not to have or maintain his aforefaid action thereof against him, because he fays, that true it is that fuch difcourfe was had and moved, and that fuch queftion arofe and was debated between the faid plaintiff and the faid defendant, and that the faid defendant did undertake and promife in manner and form as the faid plaintiff hath above in his faid declaration alledged; but the faid defendant further fays, as to the fum of forty fhillings, part

of

of the faid eighteen pounds in the faid declaration mentioned, the
faid plaintiff was not entitled to fuch right of common in and
upon the faid moors, commons, and wafte grounds, for and in
respect of the said freehold tenement of the faid plaintiff, as the
faid plaintiff hath in his faid declaration above alledged; and of
this the faid defendant puts himself upon the country; and the said
plaintiff doth the like: and as to the fum of forty fhillings, other
part of the faid fum of eighteen pounds, in the faid declaration
mentioned, the faid defendant fays, that the faid plaintiff was not
entitled to fuch right of common in and upon the faid moors,
commons, and wafte grounds, for and in refpect of the faid freehold
tenement of the faid plaintiff fecondly above mentioned, as the
faid plaintiff hath in his faid declaration above alledged; and of
this the faid defendant puts himself upon the country; and the
faid plaintiff doth the like: and as to the faid fum of forty fhillings,
other part of the faid fum of eighteen pounds, in the said decla
ration mentioned, the faid defendant fays, that the faid plaintiff
was not entitled to fuch right of common in and upon the said
moors, commons, and wafte grounds, for and in refpect of the
faid freehold tenements of the faid plaintiff thirdly above mentioned,
as the faid plaintiff hath in his faid declaration above alledged;
and this the faid defendant prays may be inquired of by the country;
and the faid plaintiff doth the like: and as to the fum of forty
fhillings, other part of the faid fum of eighteen pounds, in the
faid declaration mentioned, the faid defendant fays, that the faid
plaintiff was not entitled to fuch right of common in and upon
the faid moors, commons, and wafte grounds, for and in refpect
of the faid copyhold tenement of the faid plaintiff first above
mentioned, as the faid plaintiff hath in his faid declaration above
alledged; and of this the faid defendant puts himself upon the
country; and the faid plaintiff doth the like: and as to the fum
of ten pounds, refidue of the faid fum of eighteen pounds, in the
faid declaration mentioned, the faid defendant fays, that the faid
plaintiff was not entitled to fuch right of common in and upon
the faid moors, commons, and waste grounds, for and in refpect
of the faid five copyhold tenements of the faid plaintiff, in the
faid declaration laftly above mentioned, or of any of them, as the
faid plaintiff hath in his faid declaration laftly above alledged;
and of this the faid defendant puts himfelf upon the country;
and the faid plaintiff doth the like. Therefore let a jury there-
upon come before our lord the king, at Westminster, on
next, after
twelve, &c. by whom, &c. and who neither,
&c. because as well, &c. the fame day is given to the faid parties,
at the fame place, &c.

GEO. WOOD.

DEVONSHIRE. Declaration ftates, that whereas plaintiff, Feigned iue in on the ift May 1791 and long before, was and ftill is an houfe- C. B. between the corporation of Poole and an householder within the borough right of common on the corporation lands, vel nen.

holder,

tion.

holder, inhabiting and refiding within the borough and county of the town of Poole, and paying fcot and lot there. And whereas alfo defendant afterwards, to wit, on the day and year aforefaid, and long before, was and ftill is lawfully entitled, under and by virtue of a certain prefcriptive right of common of pasture in and upon a certain wafte or common, called Canford Heath, fituate in the parish of Great Canford, in the county of Dorfet, for all his commonable cattle, levant and couchant, upon a certain mesfuage, farm, and lands, with the appurtenances, fituate and being at Kingston, within the faid parish of Great Canford, in the county of Dorfet, and alfo to cut and carry away furze and heath off and from the said waste or common called Canford Heath, for his neceffary fuel to be burned and confumed in the faid meffuage, with the appurtenances, every year, at all times of the year, as need or occation hath been and required. And whereas also afterwards, to wit, on the day and year aforcfaid, at Tiverton, in the faid county of Devon, a certain difcourfe was moved and had between plaintiff and defendant of and concerning a certain body politic corporate, incorporated heretofore by divers names of inName and ftyle corporation, that is to fay, by the name of Mayor and Burgeffes, of the corpora and of Mayor, Bailiffs, and Burgeffes, and of Mayor, Bailiffs, Burgeffes, and Inhabitants of the Town of Poole, and now by the name of The Mayor, Bailiffs, Burgeffes, and Commonalty of the Town, and of and concerning a certain right which each and every of the members of that body politic and corporate, from time whereof the memory of man is not to the contrary, have refpectively had, and for all the time laft aforefaid of right ought to have had, and fill of right ought to have, for themfelves and every of them, to turn in and depafture their commonable cattle, levant and couchant, within the faid borough and county, upon faid waste or common called Canford Heath, and to cut and carry away fuize and heath off and from the faid waste or common called Canford Heath, for neceflary fuel to be burned and confumed in their refpective meffuages or dwelling-houfes within the said borough and county of the town of Poole, every year, at all times of the year, as need or occafion hath been or required; and also whether plaintiff, by being fuch householder, inhabiting and refiding within the borough and county of the town of Poole, and paying fcot and lot there as aforesaid, was a part or a member of the aforefaid body politic and corporate, and therefore entitled to turn in and departure his commonable cattle, levant and couchant, within the faid borough and county, upon faid waste or common called Canford Heath, and to cut and carry away furze and heath off and from the faid wafte or common, in manner and form as the members of the aforefaid body politic and corporate have been and ftill are refpectively entitled to do as aforefaid: And upon that Plaintiff afferts difcourfe plaintiff then and there afferted and affirmed, that by being fuch householder, inhabiting and refiding within the borough and county of the town of Poole, and paying fcot and lot there as aforeftid, he the faid plaintiff was a part or member of the

and affirms.

aforefaid