carril versus baker Trin James the plaintiff bring a action wherefore by force  and arm he enter into his warren and dig the dawn land and chase his cony and  take they the defendant plead to all except to the enter the warren chase the  CODies and dig the land not guilty and as to the enter of the warren chase of  the cony and dig the land he plead a especial justification to wit that he  have common there time out of mind and because the plaintiff store the burrow  there with cony and make new hole by reason whereof the defendant sheep feed  there fall into they to their great damage the defendant do with a ferret  chase the cony and stop up the hole with the earth dig out c and upon that  plea the plaintiff demurrer and George crook be of opinion that it be not a  good justification and the question be single whether a commoner may drive out  cony which surcharge the land and he conceive he can not for the free hold and  possession of the land be in the terrtenant only and the commoner can  intermeddle with it for a commoner have only the grass of the land and not  absolute neither to do with it what he please but only to take it with the  mouth of big caftel and for this fee h and h and h the espleas in a quod to  let pass be allege in take the grass with the mouth of his beast and for that  fee assiz e and Edward if a stranger put in his cattle the commoner can have a  action of trespass and h rule that if a commoner dig the land to make a trench  he be a trespasser but he may drive out or distrain for do damage and h h and  h because after a manner he have interest in the grass which be spoil and  consume by the cattle of the stranger but although be may drive out and  distrain the cattle of a estranger yet he can meddle with the lord cattle or  the terrtenants although there be more than reasonable as in fitzherbert no  brey d and e if the lord surcharge the common the commoner may have a assize  against the lord but if he be a copyholder be shall have a action of the case  Rep but the lord may distrain h James king bench a prescription for a Brownlow  goldsborough commoner to kill cony of the lord be not good and he cite pasch  Elizabeth king bench rotulo belly and Laughorns case the lord may use the sale  as he please but as his case be the commoner although tenant of the land can  kill the cony with his ferret for a free warren in such a precinct be a charge  upon the land in what hand soever it come but if he have a warren adjoin and  the cony come into the land of another out of the precinct then be may kill  the cony and he cite boaster and hardies case in the common plea and for a  express authority be cite old and cony case hill Elizabeth and sir Robert  Fitebman he be against it and he agree he can not kill the come but as to the  dig be take this difference if a commoner make any thing de to make new in the  land he be a trespasser as it be adjudge in the case of a trench before and  the like but if a commoner amends and reform a thing abuse it be no trespass  and therefore if the land be full of molehill he inky dig they down h and  Assis if the lord make a hedge the commoner may pluck it down Edward so if the  lord make a pond in the land the commoner may dig and lot the water out and  therefore hole that be make long in a hurt and damage to the land the commoner  may put the earth dig out again into its place second the defendant have show  that the conyholes be make by the plaintiff himself and he shall never take  advantage of his own wrong and three the law will allow every man to preserve  his inheritance and it can be preserve any other way for if he shall bring the  assize yet he in that shall recover but seize and no reformation of the  trespass and wrong do and the opinion of the court seem to incline for the  plaintiff and Doddridge justice say that a lord or his feoff may make new  conyburrows lawful for they be necessary for the preservation of the cony but  one fault find by justice Haughton in the plead nothing be do for the  plaintiff declare of enter into his warren the defendant plead to all but the  warren dig and chase not guilty and as to the dig and chase he justify for  common there but answer nothing as to the enter into the warren neither by  confession or traverse and therefore all be discontinue as Herlackendens case  be   Rep and to this the whole court Fleming be absent agree Brownlow  goldsborough er p Waldron versus more Trin James the plaintiff bring a action  of trespass against more wherefore his close call Gerleford at Ratensbury in  the county of Devon by force and arm have break and enter c the defendant  plead that a long time before the trespass be suppose to be do one John W be  seize of three hundred acre of land in r aforesaid of which the place in  Brownlow goldsborough question call g be parcel and that h the say John  Whitbing recite that whereas n de la more e the plaintiff ancestor son and  heir of h de la more grant to William de la more lesson aquae which run from W  through the middle of the land of the say m and show further that by mean  descent it descend to the defendant c and so justify the plaintiff reply if W  S be seize of the place where c and make a lease thereof to he for year and  traverse that the three hundred acre of land be parcel and issue join upon  that and find for the plaintiff and it be move in arrest of judgement that the  defendant have not make any answer to the plaintiff and so no issue join for  the plaintiff lie the trespass in g in l the defendant say he be seize of  three hundred acre of which the place c be parcel but be convey no title to  himself but by a course of water through the middle of the land of m but who  land that be it do not appear and be another thing and therefore a issue upon  that which the defendant do not claim be void and although issue be join yet  it be not help by the statute of Jeofails of Elizabeth or h for it be no issue  when it be of a thing not in question but if the issue have be of a matter in  question although in join yet it be aid as nichol case be Rep upon payment  plead without deed and dodderidge and crook justice agree to that but Haughton  seem to incline that it be a issue and so help by the statute one venum out of  two place in the same county