CARRILL plaintiff against pack and baker defendant enter mich James b r rot a  action of trespass bring against commoner in a action of trespass quare  enclosed space liberan warrennam to break in pieces to go into and for the dig  the ground the defendant plead non culp to part and justify in this manner S  that the place where be a place in Harding that there be a common there call  Harding common that sir Edward carril father of the plaintiff do store this  place with cony and so the same come to Richard carril the plaintiff his son  who have cony there and make hole that the sheep of these defendant and of the  rest of the commoner often fall Bulstrode into these hole and so be hurt by  reason whereof these defendant come with ferret and do chase the cony and dig  down the borrow arid fill up the hole for the better preservation of their  cattle and enjoyment of their common and so justify upon this the plaintiff  demurrer the only question be whether this be a good justification or not  George croak for the plaintiff that this justification be not good for the  commoner have no remedy give unto he but to take his common with the mouth of  his cattle and here the plaintiff have free warren in this place a commoner be  not to disturb the lord of the soil the remedy which a commoner have be a  action upon the case or a assize it appear h f and h fol in Simon de  Harecourts case that a commoner have nothing to do but to take his common with  the mouth of his cattle he be not to have a action of trespass to this purpose  see h fol h fol Hillar Elizabeth old plaintiff against cunney a action of  trespass bring against a commoner for chase in his warren and kill of his cony  who plead that the cony do increase and so do surcharge the land and do damage  to the commoner and for this cause he do kill they upon you plea the plaintiff  demurrer in law and adjudge the plea not good and that the commoner can not  justify the kill of they pasch Elizabeth b r rot Bellew plaintiff against  Langdon defendant in a action of trespass bring for chase and kill of his cony  the defendant plead non culp rule in that case that the lord may do as he will  with his own soil he may either have dear or cony Bulstrode er p there and the  other can kill they and so it be rule against he coke pars f ol in Boulstons  case if a man make cony borrow in his own land which increase to so great a  number that they hurt the land of his neighbour next adjoin be can for this  have a action upon the case but as soon as they come upon his land he may kill  they lawful here they justify the hunt and dig down the hole this  justification be not good so the plaintiff to have his judgement sir Robert  Hitcham for the defendant that the justification be good that by authority in  law the case before remember be for kill which must be agree can not be  justify but the chase there never come in question h not rule there but only  controvert two against two the chief justice there for the commoner the  difference will be where a commoner do intermeddle with the soil de to make  new and where he only reform a misfesance h there he meddle with the soil de  to make new if the tertenant do enclose the commoner may pull the same down  again for this only so do to reform what be do if the lord do make a pond on  the common if the commoner notwithstanding this have common sufficient this be  good but if all the common be take up in the pond they may well then let out  the water and so enjoy their common this they may justify in h there the  commoner meddle with the soil de to make new and though this be to drein away  the water and so thereb to meliorate the common yet in this the court there be  divide two against two so that a commoner may reform that which be amiss to  the prejudice of the common but not to meddle with the soil de to make new  again as this case be the tertenant shall not take any advantage of this his  own wrong as if a man take the good of I S and carry they upon his own land I  S may well justify his entry upon the land to take his good and shall not be  punish for the same in a action of trespass and that it shall be lawful for  one to remove what be hurtful and a dama give e to he to this purpose be e fol  and e which come to the reason of this case now in question Haughton justice  the action of trespass here be bring for this cause S quare warrennam to break  in pieces c the defendant by way of justification show that he be a commoner  that he dig down the cony hole and fill they up again without confess or avoid  of the trespass and so the plea not good dodderidge justice by prescription or  by grant of the king a man may have a warren if one which Bulstrode have no  warren do put cony into a enclose ground he can here have a action of trespass  quare warrennam send quare enclosed space freprit here the action of trespass  be quare enclosed space liberan warrennam to break in pieces to go into he  plead do culp and justify and so by this he confess that he have a free warren  croak justice if the plaintiff have a warren the defendant can justify the  kill of his cony Haughton justice Conyborows be incident to a warren  dodderidge justice if the defendant have plead non culp to the trespass in the  warren this have be then well plead and the plaintiff must then have make it  to appear unto the court that he have a free warren but here by this plea they  have confess that he have a free warren if the king do grant unto I S free  warren in his land afterward I S make a feoff in fee of this land except the  free warren I S may clear afterward make conyborows in this land de to make  new and store the same with cony a commoner may well distrain the cattle of a  stranger be upon the common but not so the cattle of the lord neither may he  chase they though they surcharge the common and he say to the counsel for the  defendant that this last case do make the defendant case here to be without  any great question and so the court be clear of opinion that this plea and  justification of the defendant be not good and so by the rule of the court  judgement be give and so enter for the plaintiff if better cause by a day give  be not show the contrary but no cause be show the judgement do stand