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V. Of Surcharges by Commoners.

FORMERLY, if one of the commoners had surcharged the common", that is, had put more cattle into the common than he was entitled to, the commoner who was aggrieved might sue out a writ of admeasurement of pasture, and by that suit the common was admeasured in respect of all the commoners, as well those who had not surcharged as those who had surcharged it, and the person who brought the action. An action on the case has been substituíed in the place of this writ of admeasurement, as a more easy and speedy remedy; and it has been holden, that this action may be maintained by one commoner against another for a surcharge", although the plaintiff himself has been guilty of a surcharge. In the declaration, it is not necessary for the plaintiff to set forth the defendant's right of common, and shew in what manner he has exceeded that rightP, by putting in a greater number or an improper species of cattle; but the disturbance may be alleged generally (12) thus," that the defendant wrongfully and injuriously ate up and depastured the grass on the common with divers sheep and lambs, to wit, 200 sheep and 200 lambs.” Neither is it necessary that the plaintiff should state that he was exercising his right of common at the time of the surcharge.

VI. Evidence.

By stat. 2 and 3 W. 4. c. 71, entitled an Act for shortening the Time of Prescription in certain Cases, after reciting, that the expression “time immemorial, or time whereof the memory of man runneth not to the contrary,” is now by the law of England, in many cases, considered to include and denote the whole period of time from the reign of King Richard

n F. N. B. 125. B.
o Hobson v. Todd, 4 T. R. 71.

p Atkinson v. Teasdale, 3 Wils. 278.

2 BI. R. 817. 8. C. q Wells v. Watling, 2 BI. R. 1233.

(12) It seems, from Smith v. Feverel, 2 Mod. 6, and from a dictum of the court in Hassard v. Cantrell, Lutw. 107, that in an action against the lord it is necessary to shew a particular surcharge.

the First, whereby the title to matters that have been long enjoyed, is sometimes defeated by shewing the commencement of such enjoyment, which is, in many cases, productive of inconvenience and injustice: it is by s. 1. enacted, “that no claim which may be lawfully made at the common law by custom, prescription, or grant, to any right of common or other profit or benefit, to be taken and enjoyed from or upon any land of the king, his heirs, or successors, or any land, being parcel of the Duchy of Lancaster, or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters as are herein specially provided for, and except tithes, rents, and services, shall, where such right, profit, or benefit, shall have been actually taken and enjoyed by any person claiming right thereto, without interruption, for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit, was first taken or enjoyed at any time prior to such period of thirty years, but such claim may be defeated in any other way by which the same is now liable to be defeated : and when such right, profit, or benefit, shall have been so taken and enjoyed as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing.”

By the seventh section, the time during which any disability exists, e.g. infancy, non compos, coverture, or tenancy for life, or during which any action shall have been pending, and diligently prosecuted, until abated by the death of any party, shall be excluded in the computation of the periods, except only where the claim is declared to be absolute.

In replevin, defendant avowed taking the cattle damage feasant", plaintiff prescribed for common in the locus in quo, as appendant to his messuage. The plaintiff produced as a witness a person who claimed common in the same place. His testimony being objected to, Raymond, C. J. overruled the objection, observing, that where a person prescribes for common, not as appendant to his messuage, but by virtue of a custom within a parish or manor, and the custom is in issue, there a person within the manor or parish claiming common is interested, and cannot be a witness; but where a person prescribes for common, for all cattle levant and couchant on his messuage, as belonging to that messuage, there is nothing but that person's particular right of common in question, as belonging to that particular messuage; and another person who claims common in the same place by virtue of another messuage, may be a witness, because not interested in the present question. In the foregoing case the witness was called to establish a right of common in the party by whom he was called, the effect of which would be to narrow and abridge the witness's right; but in a cases where the witness was called by the plaintiff to show that the defendant had no right, the learned judge rejected his testimony, on the ground that he was interested in the question, inasmuch as negativing the defendant's right would go to enlarge the witness's right. Trespass for entering plaintiff's close with cows and sheep, and destroying his grasst. As to sheep, plea not guilty, and issue thereon. As to cows, defendant justified, and prescribed for common, for all cattle (except sheep) levant and couchant on defendant's messuage, and one acre of land; the issue was on the levancy and couchancy. The evidence on the first issue was, that defendant's sheep were seen at several times depasturing in locus in quo, and that at such time the defendant's shepherd was with them. Mr. Gatward, (recorder of Cambridge, for the defendant, insisted, that as it did not appear that defendant had knowledge or consented, that his sheep should feed there, and had a servant to take care of them, the shepherd, and not the defendant, was the trespasser, and that the action could not be maintained against the master Per Lord Raymond, C. J. “The action lies against the master ; his sheep did the trespass; he has his remedy against the servant." As to the second issue, the evidence was, that defendant was seized of a copyhold messuage, and one acre of pasture land, that he foddered eight or nine cows in the yard of the said messuage with hay brought from another farm about two miles off. Lord Raymond, C. J. “These cows cannot be levant and couchant upon the one acre; for I am clear that levancy and couchancy is a stint of common in contradistinction to common sans nombre, and signifies only so many as the messuage or farm will by its produce maintain; and it was so resolved in the case of the town of Derby. I know there are cases which say, that foddering in a yard makes a levancy and couchancy, but then the meaning is, foddering with stubble, &c. produced from the messuage or land itself, to which the yard belongs; for example, if an acre of land will produce only so much hay, &c. as will maintain but one cow, the occupier shall not put two on the common, because he fodders them in the yard with the produce of other land; for, by the same rule, he might put 1000 of his own, or of other persons, and deprive the other commoners of the benefit of common.”

r Harvey v. Collison, Norfolk Sum.

Ass. 1727. MSS. Serjt. Leeds. See

also the opinion of Buller, J. in Walton v. Shelley, 1 T. R. 302,

s Kennett v. Foster, Winton Summer Ass. 1727. cor. Ld. Raymond, C. J.

Assizes, 1822. Burrough, J. and MSS. Serjt. Leeds. S. P. per Lawrence, J. on the Ox- u 2 R. A. ford Circuit about ten years before, x Mellor v. Spateman, 1 Saund. 343. ut ego audivi.

1 Mod. 7. t Rogers v. Benstead, Cambr. Summ.

Trespass for impounding plaintiff's colt and three fillies y. Defendant set out his right to a messuage, with the appurtenants, to which the defendant had a right of common belonging in the loc. in quo, and that defendant took the cattle damage feasant. Plaintiff replies, that he is possessed of a copyhold messuage in Drayton, and prescribes for a right of common in the loc. in quo, for all commonable cattle, levant and couchant on the said messuage, at all times of the year. Defendant protestando, that plaintiff has not such right, traverses the levancy and couchancy of the beasts taken, and issue thereon. Per Lee, C. J. “The protestando is not part of the issue, and need not be proved.' It appearing by the evidence, that the messuage was only a yard where the horses were foddered, and one acre of orchard, with the produce of which the plaintiff could not maintain the colt and three fillies, and for that reason he foddered them with hay and straw from other land hired by him; per Lee, C. J. 6 These beasts cannot be levant and couchant on this yard, though they are foddered there, unless they can be foddered with the produce of the messuage; and so it was determined by Ld. Raymond, in Rogers v. Benstead, at Cambr. 1727, after

ch consideration, that levancy and couchancy signify what the produce of the estate will bear, and is a stint of common with respect to other commoners; and I know no difference as to this, whether the common is for the whole year, or for half a year only.” Lord Raymond in the above case, cited i Ventr. The foddering cattle in a yard is said to be evidence of levancy and couchancy, Salk. 169 : but it must be foddering with the produce of the ground belonging to the messuage. Plaintiff nonsuited. N. There may be common appurtenant to a messuage with appurtenants; but not to a messuage only.

By R. G. H. T. 4 W. 4, where, in an action of trespass, quare clausum fregit, the defendant pleads a right of common of pasture for divers kinds of cattle, ex. gr. horses, sheep, oxen, and cows, and issue is taken thereon, if a right of com

y Pulcher v. Scales, Norfolk Summ. Ass. 1738. MSS. Serjt. Leeds.

mon for some particular kind of commonable cattle only be found by the jury, a verdict shall pass for the defendant in respect of such of the trespasses proved as shall be justified by the right of common so found; and for the plaintiff, in respect of the trespasses which shall not be so justified. And in all actions in which such right of common as aforesaid, or other similar right is so pleaded, that the allegations as to the extent of the right are capable of being construed distributively, they shall be taken distributively. And by stat. 2 and 3 W. 4. c. 71. s. 5. in all actions upon the case, and other pleadings, wherein the party claiming may now allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient, and if the same shall be denied, all and every the matters mentioned in this act, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein, before the passing this act, (viz. before 11th August, 1832,] it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right, by the occupiers of the tenement, in respect whereof the same is claimed, for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter herein before mentioned, or on any cause or matter of fact or of law, not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.

To a declaration in trespass, for breaking and entering two closes of the plaintiff, the defendant pleaded that the said closes were, from time immemorial, parcels of a waste, and that he, the defendant, had a prescriptive right of common in the waste, and because the closes were wrongfully separated from the residue of the waste, he broke down the gates. Replication, that the said closes were not wrongfully separated from the residue of the waste, but continually for twenty years and more, and before the first time, when, &c. had been and were separated and divided, and inclosed from the residue of the waste, and occupied and enjoyed during that time

2 Tapley v. Wainwright, 5 B. and Ad. 395.

2 F

VOL. I.

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