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of dry sheep, so as they did not exceed fourteen sheep in the whole for a yard land, and in proportion for a greater or lesser quantity; and that the sheep should be put into Westfield at St. Martin, and the beasts on the 14th of May yearly.

By virtue of this agreement, Westfield was continued a cow pasture, and the Lammas Closes were quietly enjoyed for thirty years afterwards; and particularly, during all the lifetime of Lady Wilbraham, and afterwards of Ralph Wilbraham, her son, who being the impropriators of the tythes within the said three fields, were so well satisfied with the advantages they derived under the agreement, that they abated the tenant who rented their tythes, £7 per ann. in lieu of such loss as he might thereby have, rather than not submit to the agreement.

But the appellant having married the daughter and heir of the said Ralph Wilbraham, and by that means becoming intitled to all the estate in Charlton, he about twenty years ago, with two other owners of land in Westfield, in violation of the said agreement, plowed up some part of his and their land there, and continued so to do for several years afterwards; and in August 1717, the appellant put in above 100 sheep into Westfield, contrary to the agreement, which should not have been put in till the 11th of November following. And he likewise put in several horses and oxen, and more cattle than what he had a right of common for; and although the appellant obliged the respondents to flit and tether their cattle in Westfield, yet he, at the same time, put in his own cattle loose among them, and threatened to impound the respondents cattle, if they did not confine them, and actually did impound some of them, for being loose in the field, at the same time that his own went loose there; though the appellant had, for near twenty years together, as owner of the said closes and lands, enjoyed the benefit of the agreement, without any interruption whatsoever, by holding his Lammas Closes in severalty, and his part of Westfield inclosed. The appellant also, for two years to-[167]-gether, since the 1717, plowed up two acres in one of the said three fields, which had been ancient greensword-ground, and was not of his own separate land, but allotted for common; and he likewise plowed up several hades of land of his own, in two of the said three fields, which were ancient greensword-ground, no part of which had ever been known to be plowed before.

The respondents therefore, in Hilary term 1718, exhibited their bill in the high Court of Chancery against the appellant, for a specific performance of the said articles; and particularly, as to the enjoyment of the Lammas Closes, and continuing the Westfield a cow pasture, and to restrain the appellant from putting in any greater number of cattle in the said fields, than by the articles was allotted and appointed.

The appellant, by his answer to this bill, said, that he never heard any thing of the articles, till several years after his inter-marriage with the heiress of Ralph Wilbraham; and insisted, that the same ought not to be binding on him, because they were not consented to, or signed by all the owners of land in the said common fields and particularly, that John Lucas, the owner of a yard land, and John Jarvis, the owner of a half yard land there, did not consent to the agreement, or sign the articles; nor did the owners of the appellant's estate ever consent to, or sign these articles, or give authority to any person to sign them on their behalf.—That John Turland, who, as it was pretended, signed the said articles for the said Ralph Wilbraham, was a tenant only of the farm, but not of the tythes at Charlton, and signed the same in a special manner; viz. I consent so far as I have power; as did likewise Richard Matthews, another tenant of lands in the said fields.—That about twenty years ago, the respondent Richard Matthews and one John Phipps, since deceased another owner of lands in the Westfield, began to plow there, and the appellant also plowed; and since that time, all the respondents, except two, had plowed their lands, and the said field had been commonly used in tillage.—That when the appellant first became owner of the farm at Charlton, he enjoyed the Lammas Closes belonging to him, in severalty, free from any claim of common there, and knew not that these closes were anciently commonable; but if it should so appear, he was willing to lay them open.—And, as these articles tended to alter the nature of the appellant's lands, and to change the ancient custom and usage of plowing, sowing, and commoning in the said fields; he insisted, that the same were not obligatory upon him, or ought to bind bis inheritance, and much less to be carried into execution by a decree of the Court of Chancery.