be shown, but the ground on which the claimant rests his alleged right is not material: Earl de la Warr v. Miles, 17 Ch. D. 535, C. A. ; q. v. as to the object and effect of the Act generally; and see Tilbury v. Silva, 45 Ch. D. 98, C. A. And that "common without stint" cannot be claimed by prescription, see Morley v. Clifford, 20 Ch. D. 753.

A right of fishing, being in the nature of a profit à prendre cannot be claimed by prescription on behalf of a large and indefinite class, such as owners and occupiers: Tilbury v. Silva, 45 Ch. D. 98, C. A. (per Kay, J.); distinguishing Goodman v. Mayor of Saltash, 17 App. Ca. 633, as to presumption of a legal origin for an immemorial usage. And as to prescription for common of pasture, and that a copyholder cannot prescribe in excess of the custom of his manor, see Morley v. Clifford, 20 Ch. D. 753.

A demise of all the warren of conies" in L. was held, under special circumstances, to pass a right to the soil: Robinson v. Dhuleep Singh, 11 Ch. D. 798, C. A.

The rule of English law, that a right to an incorporeal hereditament can only be conveyed by deed, is part of the lex loci, not of the lex fori; so that an English lease of sporting rights over land in Scotland can be enforced in England, though not under seal: Adams v. Clutterbuck, 10 Q. B. D. 403.

A fold course is not a several right to the herbage, but a right of common appurtenant of pasture for sheep: Robinson v. Dhuleep Singh, sup.

Under" common pasturage and herbage," in a decree in 1653, commoners could only take by the mouth or bite of cattle, and could not cut or carry away the growth of the soil: Eurl de la Warr v. Miles, 17 Ch. D. 754, C. A. Evidence of subsequent usage was not admitted to affect the construction of the decree, which was plain and unambiguous: S. C.; and see N. E. Ry. Co. v. Hastings, (1900) A. C. 260.

Under the Statute of Merton, the lord can (upon issuing advertisements under the Commons Act, 1876 (39 & 40 V. c. 56, s. 31)) approve against common appurtenant of pasture; and the proviso in 13 Edw. I., c. 46, only prevents derogation from an express grant: Robinson v. Dhuleep Singh, sup. In the case of approvement, the onus is on the lord, his right to inclose being conditional upon his showing that he has left sufficient waste for the tenants to enjoy their right of common: Hall v. Byron, 4 Ch. D. 667.

The question whether there is a sufficiency of common of pasture for sheep must be determined not according to the average number of sheep turned out during a long course of years, but the aggregate number which the commoners are entitled to turn out: Robertson v. Hartopp, 43 Ch. D. 484, C. A. (considering Lake v. Plaxton, 10 Ex. 196; Lascelles v. Onslow, 2 Q. B. D. 433), where the lord was restrained from doing any acts which would diminish the amount of pasturage. Whether, in ascertaining the sufficiency, the modern system of farming, whereby the sheep do not get all their sustenance from the common, ought to be considered, quære; S. C.

Where surveyor of highways had for more than 50 years let the herbage for pasture, a grant from the owner of the soil was presumed: Neaverson v. Peterborough District Council, (1901) 1 Ch. 22.

A custom for the lord with consent of the homage to make copyhold grants of the waste, although sufficiency of common be not left, may be good, and binding on a former copyholder, who, having enfranchised, can no longer attend the manor court: Ramsey v. Craddas, (1893) 1 Q. B. 228.

That the Act of 29 G. II. c. 36, applies only to agreements entered into by persons entitled to common of pasture, and does not legalize agreements affecting the rights of freehold tenants to bushes and underwood, see Nicholls v. Mitford, 20 Ch. D. 380.

A right of shooting over freehold allotments, under an Inclosure Act, cannot be reserved to the lord unless in express terms, or by necessary implication: Duke of Devonshire v. O'Connor, 24 Q. B. D. 468, C. A.

The usual saving clause of the lord's rights in an Inclosure Act does not reserve to the lord any merely territorial right, e.g., the right, incident to his ownership of the soil, of entering upon land for fishing purposes: Ecroyd v. Coulthard, (1898) 2 Ch. 358, C. A.; 1897) 2 Ch. 554.

Where upon inclosure, under 8 & 9 V. c. 118, rights of common have been extinguished, allotments awarded in lieu of them are not to be deemed parts of the lands of the commoners so as to pass by general words in a lease of such lands: Williams v. Phillips, 8 Q. B. D. 437, C. A.

On the release by enfranchisement of seigniorial rights in ancient arable

land of customary freehold tenure, there is not, as in the case of copyholds, an extinguishment of rights of common, which anciently was a thing necessary and incident to the feoffment of such land: Baring v. Abingdon, (1892) 2 Ch. 374; Broome v. Wenham, 68 L. T. 651.

An allotment of land made in pursuance of sects. 34 and 73 of the Inclosure Act, 1845, to the churchwardens and overseers of a parish in trust to allow the occupiers of certain ancient cottages in the parish to get turf therefrom, vests the legal estate in the land in the church wardens and overseers: Simcoe v. Pethick, (1898) 2 Q. B. 555, C. A.; distinguishing A. G. v. Meyrick, (1893) A. C. 1; and Reg. v. Inclosure Commrs, 23 L. T. 778.

The presumption which the Court makes in favour of a legal origin of a right long exercised depends on the circumstances of the enjoyment, and a legal origin cannot be presumed in favour of a body of copyholders on the assumption of a long series of lost grants: Tilbury v. Silva, 45 Ch. D. 98, C. A.

By the Commons Act, 1876 (39 & 40 V. c. 56), which contains provisions for the regulation or inclosure of commons, jurisdiction is given by sect. 30 to the county court within whose jurisdiction any common is situate to hear any case relating to any illegal inclosure or encroachment of or upon such common made after the passing of the Act, or to any nuisance impeding the exercise of any right of common arising after the passing of the Act, and to grant an injunction against such inclosure, encroachment, or nuisance, or to make an order for the removal or abatement of such inclosure, encroachment, or nuisance, with right of appeal to the High Court of Justice in a summary manner, or by special case or otherwise, as may be prescribed by rules of the Supreme Court, against any order, &c., by a county court under this section. Pending an appeal from the county court, the order directing the removal or abatement of any inclosure, encroachment, or nuisance, is to be suspended. Nothing in the Act contained is to abridge or interfere with any existing right of abating or otherwise preventing any illegal inclosure of, or encroachment on, any common, or any nuisance interfering with any right of common.

As to the conclusive character of a scheme for the inclosure of a common under the Metropolitan Commons Act, 1866, see Cook v. Mitcham Common Conservators, (1901) 1 Ch. 387.

Inclosure Commrs will not be restrained from affixing their seal or applying to Parliament for its sanction to a scheme approved by them for inclosure of a common: Queen's College, Oxon. v. Darby, W. N. (76) 301.

Where a statute vested land in the lord in trust for occupiers, though the trust was charitable, the lord was held not to be deprived of the ownership of the soil: A. G. v. Meyrick, (1893) A. C. 1.

A right of recreation by custom upon the land of another cannot exist in the public generally, but must be confined to the inhabitants of a particular district: Bourke v. Davis, 44 Ch. D. 110.

A custom for the inhabitants of several adjoining or contiguous parishes to exercise the right of recreation over land situate in one of such parishes is bad: Edwards v. Jenkins, (1896) 1 Ch. 308.

A custom that a bull and boar for parishioners' use should be maintained by the owner of the great tithes was not, in the absence of express words in an Inclosure Act, shifted by the Act to the allottees of lands in lieu of tithes : Lanchbury v. Bode, (1898) 2 Ch. 120.

(VII.)-MARKET.

1. Injunction against establishing a Market.

UPON the appeal &c., by counsel for the Defts, and upon hearing counsel for the Plts, This Court doth declare that the Plts and others claiming under the charter of the 34 Chas. II., in the statement of claim mentioned, are entitled to two markets every week, namely, on Thursday and Saturday, for the sale of fruit and vegetables, to be held in or next to the place described in the said charter as the S- Square, in the parish of S., in the county of M.; And it is

ordered that the Defts, their directors, servants, agents, and workmen, be, from and after the day of -, perpetually restrained from establishing a fruit and vegetable market at B., and from using or permitting to be used any portion of their station or property there in any such manner as to interfere with or prejudicially affect the rights of the Pits in the said markets as herein before declared; And it is ordered that the Defts, their directors, servants, agents and workmen, be perpetually restrained from advertising, or causing to be advertised, any portion of the said station or property at B. as a market, or as a place used or to be used in any such manner as to interfere with or prejudicially affect the rights of the Plts as herein before declared.— Goldsmid v. Gt. Eastern Ry. Co., C. A., 18 Dec. 1883, A. 1935; S. C., 25 Ch. D. 511; 9 App. Ca. 927.

2. Injunction against Interference with erection of Weighing Machine.

THIS action coming on for trial &c., in the presence of counsel for the Plts and Defts; Let the Deft Board, its servants, workmen, and agents, be perpetually restrained from interfering with the erection and provision by the Plts, in or upon the site in the Market Place at R- &c., of the proposed building place or weighing machine for weighing cattle.-McIntosh v. Romford L. B., Kay, J., 3 July, 1889, B. 931; S. C., .61 L. T. 185.

NOTES.

As to what acts amount to a disturbance of market, see Abergavenny Improvement Commrs v. Straker, 42 Ch. D. 83; G. E. Ry. Co. v. Goldsmid, 9 App. Ca. 927; 25 Ch. D. 511, C. A. ;_ Elwes v. Payne, 12 Ch. D. 468, C. A. ; Mayor of Manchester v. Lyons, 22 Ch. D. 287, C. A.; Wolverhampton Waterworks v. Hawkesford, 28 L. J. C. P. 242; Mayor of Loudon v. Lów, 49 L. J. Q. B. 144; 42 L. T. 16; 28 W. R. 250; and as to the jurisdiction of the Court to grant relief, Stevens v. Chown, (1901) 1 Ch. 894.

Insufficiency of accommodation in an existing market, though a defence on the part of a person selling outside because he cannot find room within, is no answer to an action for infringement by setting up a rival market: G. E. Ry. Co. v. Goldsmid, sup.

In such an action the Court of Appeal, on the balance of convenience, reversed the order of Jessel, M. R., granting an interlocutory injunction, and put the Defts on an undertaking to keep an account; as if the injunction were granted, and the Defts ultimately proved to be in the right, there would be great difficulty in ascertaining the compensation to which they were entitled; whereas, if the injunction was refused and the Plts succeeded, the compensation to them could be readily ascertained, and their market would suffer no permanent injury from the interim sales by Defts: Elwes v. Payne, 12 Ch. D. 468, C. A.

In order to make the Deft liable, it is not necessary to prove that he acted with intent to defraud the Plts of their tolls by taking advantage of the concourse at their market: Goldsmid v. G. E. Ry. Co., 25 Ch. D. 511, C. A.; S. C., 9 App. Ca. 927, where a railway co., having established a depôt for the sale of vegetables brought by their line, within a quarter of a mile of the Plt's ancient market for vegetables, though no tolls were taken at the depôt, were held to have infringed the Plt's rights.

An ancient charter of 1 Edw. III. though (semble) capable of operating as an Act of Parliament conferring on "citizens of London" individually rights distinct from the corp., was construed as a grant to the corp. of which they had power to waive the benefit: G. E. Ry. Čo. v. Goldsmid, sup.

A grant of a market “in sive juxta" a specified place, was held to extend to external as well as internal streets, the inference being drawn that the streets were dedicated to the public subject to exercise of the market rights: A. G. v. Horner, 11 App. Ca. 66; 14 Q. B. D. 245, C. A.

As to the right of a grantee of a market, not confined to a particular locality, to change the site to suit his convenience, on condition that he provides a market place, i.e., gives reasonable accommodation to those members of the public who use the market, see Magistrates of Edinburgh v. Blackie, 11 App. Ca. 665.

An ancient right of market granted by the Crown was held superseded by a local Act conferring a right of market extending further than, and differing in other respects from, the ancient market: Corp. of Manchester v. Lyons, 22 Ch. D. 287, C. A.; and see New Windsor Corp. v. Taylor, (1899) A. C. 41, H. L.

An injunction was granted to restrain a local board from interfering with the erection of a weighing table and accompanying building on the market plain by the owners of the market, as market authority, under the Markets and Fairs (Weighing of Cattle) Act, 1887, s. 4: McIntosh v. Romford Local Board, 61 L. T. 185; sup. Form 2, 603.

As to joining A. G. as a party, see Ellis v. Duke of Bedford, (1899) 1 Ch. 494, C. A., sup. p. 600.

SECTION V.-NUISANCE.

(1.)-PRIVATE NUISANCE.

1. Nuisance from burning Bricks restrained.

LET the Defts S. &c., their servants &c., be perpetually restrained from burning, or causing to be burnt, any bricks on the Defts' plot of land, in the writ mentioned, so as to occasion a nuisance to the Plt, as the owner or occupier of the messuage or dwelling-house and garden in the writ mentioned to belong to, and to be occupied by, the Plt.-Deft S. to pay Plt's costs of suit, to be taxed.-Liberty to apply. -Buffy v. Stevens, M. R., 18 Feb. 1876, A. 261. (Language dictated by the Court after reference to the cases.)

2. Another Form.

THIS action coming on &c. for trial &c. in the presence of counsel for the Plt and Deft, Let the Deft A. B., his servants and agents, be perpetually restrained from burning or causing to be burnt any bricks on his brickfields and premises at or near &c., or any part thereof, in such manner as to cause a nuisance to the inhabitants of &c. and other neighbourhoods of the said brickfields and premises.-A. G. v. Hussey, Kay, J., 26 June, 1890, A. 899.

For the like order against allowing smoke, steam, or vapour to issue from the Deft's clamp or brick-kiln, &c., so as to occasion nuisance, &c. to Plts as occupiers of the cottage, &c., or any of them, see Haywood v. Richards, V.-C. W., 4 Aug. 1873, A. 2341.

The leading case of Walter v. Selfe, 4 D. G. & S. 315, restraining brickburning so as to occasion "damage or annoyance" to Plt, or "injury or damage "to the house and premises, shrubberies, and plantations, is not to be taken as having settled the general form of order in nuisance cases; and

the words "nuisance or injury," or "nuisance" (see Ball v. Ray, 30 L. T. 1; 21 W. R. 282, inf. Form 3), when used in the prayer for relief, will be adopted in preference: per Selborne, C., 21 W. R. 449; and see Goose v. Bedford, 21 W. R. 449, inf. Form 7, p. 607.

For injunction to restrain the Defts from using their kilns "for the burning of cement, and from carrying on their works in such a way as to be injurious to the health and comfort of the occupants of the fort at C-, or other persons resident or employed upon the land belonging to the War Department," but operation of injunction suspended until the 1st of December, 1874, see A. G. v. Francis, V.-C. H., 13 July, 1874, A. 1933.

For an injunction to restrain Defts, as from the 2nd of November, 1866, from permitting any vapours or gases to be emitted or to escape from their works to the injury or damage (nuisance or injury) of the inhabitants of the township of O-, see A. G. v. Staffordshire Copper Extracting Co., V.-C. W., 29 June, 1866, A. 1501.

The form of order in cases of nuisance from burning or "calcining" heaps of mineral refuse is discussed in Fleming v. Hislop, 11 App. Ca. 686.

There, and in Shotts Iron Co. v. Inglis, 7 App. Ca. 546, the absolute words of the "interlocutor" were modified by adding the words" or in any other manner so as to cause material discomfort and annoyance to the (Plts)"; so as not to exclude all scientific attempts to get rid of the material without causing a nuisance.

3. Nuisance-Offensive Occupation-Inquiry as to Damages. DISCHARGE judgment,-And Let the Deft R., his servants &c., be restrained from keeping or suffering any horse to be on the groundfloor of No. 19 G— Street, in the (bill) mentioned, so as to occasion any nuisance to the Plt, his family and lodgers, residing at No. 18 G-Street aforesaid.-Inquiry what damages have been sustained by reason of the user by the Deft of the said building No. 19 G- Street, so as to occasion a nuisance to the Plt, his family and lodgers, as aforesaid; And Let the Deft R., within one month after the date of the certificate of the result of the said inquiry, pay to the Plt B. what shall be certified to be the amount of such damages, and his costs of this suit, to be taxed &c.-Liberty to apply.-Ball v. Ray, C. A., 16 Jan. 1873, A. 86; 8 Ch. 467.

For the like order to restrain nuisance from the business of a veterinary surgeon, carried on in the ground-floor of a house in Old Bond Street, see Gullick v. Tremlett, V.-C. B., 31 Jan. 1872, A. 227; 20 W. R. 358.

4. Injunction against Use of a Building as a Small-Pox Hospital.

UPON motion &c., and upon hearing &c., and upon reading &c., and the report dated &c., of M., the person nominated by consent of the Plts and the Defts to inquire and report whether, by reason of the situation of the place called the Hirst, and now used as a small-pox hospital, or the management thereof or otherwise, there is danger created to the Plts or any of them, which report is filed in the Central Office; And the Plts by their counsel undertaking (as to damages), Let the guardians of the Union of &c., their servants and agents, be restrained, on and after the day of, until judgment in this