case sir William Hickman against thorn and other on plead a custom to enclose  land lie together it be not necessary to aver that the land enclose do lie  together S C Freem replevin the defendant justify the take for that the locus  in quo be his freehold and that be take the cattle there damagefesant the  plaintiff in bar to the avowry reply that the locus in quo c be parcel of such  a commonfield and prescribe to have right of common there as appendant to two  acre which he have in another place the defendant rejoin that there be a  custom that every freeholder who have land lie together in the say commonfield  may enclose against he who have right of common there and that he have land  there and do enclose the plaintiff demurrer Newdigate sergeant take exception  to the rejoinder first for that he do not aver that the land which he enclose  do lie together and therefore have not bring his case within the custom allege  say non allocatur because he can not enclose if the land have not lie together  second he give no answer to the plaintiff right of common but by argument  which he shall have confess with a bene et yes be and then shall have avoid it  by allege the custom of enclosure like the case of Russel v broker a Leon a  where in trespass for cut oak the defendant plead that he be seize of a  message in fee and prescribe to have the pure milk of reason estoverium ad it  pleases capiend in kind of water fowl the plaintiff reply that the locus in  quo be within the forest and that modern the defendant and all those c to have  to become used the pure milk of reason estoverium c per liberation free  forestarii and upon a demurrer the replication be hold nought because the  plaintiff ought to have plead the law of the forest videlicet law forestce  tahs be or to have traverse the defendant prescription and not to have set  forth another prescription in his replication without a traverse three the  defendant shall have plead the custom and then have traverse the prescription  of the right of common for he can plead a custom against a custom as in aldred  case a   a where one prescribe to have a light the other can prescribe to stop  it up Pemberton sergeant contra he say that which he take to be the only  question in the case be admit videlicet that such a custom as this to enclose  be good and so it have be Adjudzed in sir mile corbet case b   b but as to the  objection which have be make the defendant admit the prescription for right of  common but say he may enclose against the commoner by reason of a custom which  be a bar to his very right of common and therefore need not confess it with a  bene et yes be be either can be traverse the prescription because be have  admit it it be true where one prescribe to have light in his house and another  prescribe to stop they up this be not good because one prescription be direct  contrary to the other and for that reason one must be traverse but here the  defendant have confess that the plaintiff have a right of common but it be not  a absolute but a qualify right against which the defendant may enclose and  here be two prescription plead and one of they not be confess it must from  thence necessary follow that the other be the issue to be try which in this  case be whether the defendant can enclose or not the chief justice and the  whole court be of opinion that where there be several freeholder who have  right of common in a common field such a custom as this of enclose be good  because the remedy be reciprocal for as one may enclose so may another modern  er p but atkins justice doubt much of the case at bar because the defendant  have plead this custom to enclose in bar to a freeholder who have no land in  the common field where he claim right of common but prescribe to have such  right there as appendant to two acre of land he have alibi for which reason be  pray to amend upon payment of cost trinity term the twentyeighth of Charles  the second in the exchequer sir William Montague Knt chief baron sir Edward  turner Knt sir Edward thurland Knt sir veer bertie Knt baron sir William Jones  Knt attorneygeneral sir Francis winnington Knt solicitor general