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, u 2 R. A. 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 Oxford Circuit about ten years before, ut ego audivi. t Rogers v. Benstead, Cambr. Summ. x Mellor v. Spateman, 1 Saund. 343. 1 Mod. 7. 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." Trespass for impounding plaintiff's colt and three fillies. 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. "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 much 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 1 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 Fulcher 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. in severalty. The rejoinder traversed this averment, and issue was joined thereon. It was holden, that the allegation in the replication, that "the said closes had been inclosed from the residue of the waste, and enjoyed in severalty," was divisible, and satisfied by proof, that any part of the closes in which the trespasses were committed had been so inclosed for that period, and that the plaintiff might therefore recover, pro tanto. A plaintiff in trespass was the occupier of a farm, called Tyr Adam, situate within a manor adjoining a mountain, and claimed to be exclusive owner of that part of the mountain next adjoining his farm. The question being, whether he was exclusive owner of the soil, or had a right of common only over that part of the mountain, the defendant, in order to shew that the plaintiff had not the right of soil, produced from the rolls of the manor an instrument, purporting to be a presentment in the year 1759, wherein the jurors, after reciting that they were sworn to view such part of the waste land as lieth within the lordship, as was claimed by A. B. to belong to his tenement called Tyr Adam, upon their oaths said, that they had considered the claim and the evidence, and presented that all the said lands within the said boundaries were part and parcel of the common called K., and that neither the said A. B. nor the tenants or occupiers of the tenement called Tyr Adam, had any right to the same, or any greater right than such as the other freehold tenants of the lordship had for their commonable cattle. It was holdena, that this instrument was not admissible in evidence; first, not as a presentment, because the homage had no right to decide the claim made by an individual to the freehold, they being interested; nor as an award, because there was no mutual submission, either express or implied; nor as evidence of reputation, because it was made post litem motam. a Richards v. Bassett, 10 B. and C. 657. CHAP. XII. CONSEQUENTIAL DAMAGES. Of Actions on the Case for Consequential Damages, and herein of the general Rule for distinguishing Actions of Trespass vi et armis from Actions of Trespass on the Case. A QUESTION frequently arises respecting the form of action which should be adopted by a person who has sustained an injury: that is, whether the proper remedy is by action of trespass vi et armis, or trespass on the case; and as, in order to avoid confusion, the judges have at all times been anxious that the boundaries of actions should be preserveda, it may be proper to remark, that the true distinction (and which seems to be now settled,) is, that if the injury be occasioned by the act of the defendant at the time, or the defendant be the immediate cause of the injury, trespass vi et armis is the proper remedy (1); but where the injury is not direct and immediate on the act done, but consequential only, there the remedy is by action on the case, sometimes termed an action on the case for consequential damages. The following case will illustrate the rule here laid down: On the evening of the fair-day at Milborn Port, in Somer a 3 Wils. 411. 1 Bos. and Pul. 476. gan v. Hughes, 2 T. R. 231. and Kenyon, C. J. in Day v. Edwards, 5 T. R. 649. S. P. and in Ogle v. Barnes, 8 T. R. 190, 1. (1) "Looking into all the cases from the Year Book in the 21 H. 7. 28. a. down to the latest decisions on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally, or by misfortune, yet he is answerable in trespass.' Per Grose, J. in Leame v. Bray, 3 East, 600. |