Albon versus Dremsall mich James the plaintiff declare in a action of trespass  that the defendant the twenty day of February James do break the plaintiff  close at c call sandy heath and enter it and spoil his grass and kill take and  carry Brownlow goldsborough away a hundred cony and also that the defendant  the same day the free warren of the plaintiff at sandy aforesaid do enter and  chase without licence and kill fifty cony and take carry they away to his  damage of c the defendant to the whole trespass except the enter and break of  the close call sandy heath not guilty and in issue join upon that and as to  the break of the close the plaintiff ought not to have his action for he say  that William Lord Russel and Elizabeth his wife be and yet be seize in fee in  the right of his wife in a certain piece of heath contain ten acre in sandy  close adjoin and on every side separate from the place call sandy heath and  that they and all those who estate they have in part in that piece of heath  have use to have for themselves and farmer of the say piece of heath and for  their servant a passage unto the say piece of heath and from the say piece in  by and through the say close call sandy heath in which c the whole year at  their pleasure to take and receive the profit of the say piece of heath and  the defendant further say that long before the trespass suppose to be commit  very many cony be wander in the say piece of heath and diverse coneyboles be  there make in which the say stork do delight to live and at the time in which  c they be in the say piece of heath eat the grass grow there and the defendant  as servant to the Lord Russel and by his command the time in which c in by and  through the say close in which c towards and unto the say piece of heath do  walk over to hunt and take the say cony in the say piece of heath then be and  feed as it be lawful for he to do which walk in by and through the say close  in which c for the cause aforesaid be the same break the close and enter  thereof whereof the plaintiff complain and aver that the place by which the  defendant walk for the cause aforesaid to sandy heath in which c be the next  passage by which he can go to the say piece of heath to which the plaintiff  demurrer and adjudge for the plaintiff for a passage be proper a passage over  the water and not over land and the defendant ought to have prescribe for the  way and not for the passage for he ought to have observe the usual word and  such as be know in the law for a prescription and usage be for a way and not  for a passage and see Assis and h b second the prescription be not good  because he do not show from what place nor to what place the passage or way be  for although a way be in gross yet it ought to be bind and circumscribe to  some certain place especial when it appear to lie in usage time out of mind  for that ought to be in a place certain Brownlow goldsborough er p and not in  one place today and another to morrow but constant and perpetual in one place  Thirdli the plea in bar be not good because Brownlow goldsborough he do not  show what manner of passage it be whether a foot way or horseway or cartway  and therefore it be altogether incertain and judgement give accord