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habitation of beast-keepers for the care of the cattle of himself and the other persons having rights of common there. Patrick v. Stubbs, 9 M & W. 830; 11 L. J., Ex. 281.

Erecting Buildings.]—An owner of a common may erect thereon a house necessary for the

So he may erect a house necessary for the habitation of a woodward, to protect the woods and the underwoods on the common. Ib.

A plea justifying the erection of a house for such beast-keepers, need not state the names of the other commoners, nor that they assented to the appointment of beast-keepers. Ib. And see APPROVEMENT, infra.


Abatement-Pulling down House.]-A commoner may pull down a house wrongfully erected upon the common, if necessary for the exercise of his right, unless persons are in it at the time. Perry v. Fitzhowe, 8 Q. B. 757; 15 L. J., Q. B. 239; 10 Jur. 799.

A parol licence, given by a commoner to build a house upon the common, does not bind a subsequent owner of the same right of common. Ib.

A commoner may pull down a building wrongfully erected upon the common, and which prevents his exercising his right as fully as he might otherwise, provided he does no unnecessary damage. Davies v. Williams, 16

Q. B. 546; 20 L. J., Q. B. 330; 15 Jur. 752.

To a declaration for breaking into the plaintiff's house, in which he was with his family, and pulling it down, a plea as to the breaking and entering, that the defendant was entitled to common of pasture over the land on which the house had been wrongfully erected, and necessarily and unavoidably committed the trespasses complained of in removing the house, is a bad plea, since the defendant was not justified in pulling down the house when the plaintiff and his family were in it. Jones v. Jones, 1 H. & C. 1; 8 Jur., N. S. 1132.

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covenants to that effect. If, during the term, the cattle of B. come upon the land of A., he may distrain them damage feasant; and may, in his replication (in answer to a plea pleaded by B. of his right of common, in bar of the cognizance of A.), set forth the special circumstances of the agreements and covenants. Whiteman v. King, 2 H. Bl. 4.

Where Herding.]—In replevin for taking the plaintiff's cattle, the defendant avowed under a grant of common of pasture, from the lord of the manor, to the burgesses of the borough of A.; and the plaintiff pleaded in bar, that the corporation of A. had been accustomed to appoint a reasonable and proper number of herds, for taking care of the cattle put upon the common; and also to appoint for the pains of each such herd, a reasonable and proper number of stints of each of such herds, to be depastured thereon:-Held, sufficient after verdict; although it was urged that the number of herds and stints, and the duties required from the herds, should have been set out with certainty in the plea. Elliott v. Hardy, 10 Moore, 347; 3 Bing. 61.

Parties to Action.]-One who is a freehold and copyhold tenant of a manor can maintain a suit on behalf of himself and all other the freehold and copyhold tenants, notwithstanding the rights of each freeholder are separate and distinct from those of the copyholders. Smith v. Brownlow (Earl), 9 L. R., Eq. 241 ; 21 L. T. 739; 18 W. R. 271. A bill was filed in equity by a freehold tenant of a manor, suing on behalf of himself and all other owners of freehold tenements within the ambit or former ambit of the manor, to establish rights of common against the lord. It was proved that he and the other freehold tenants within the present ambit of the manor had commonable rights, and that the copyholders of the manor had also commonable rights, but it was not proved that the owners of freehold tenements within the former ambit had such rights :Held, that the joining the owners of frechold tenements within the former ambit amounted merely to a misjoinder, and did not prevent the court from making a decree upon the bill. Betts v. Thompson, 6 L. R., Ch. 732; 25 L. T. 363; 19 W. R. 1098.

Held, that though the plaintiff might have sued on behalf of the copyholders also, if they had rights co-extensive with those of the freeholders, he was able to maintain his bill on behalf of the freeholders alone. Ib.

The freehold tenants of a manor must have in common some rights over the waste as against the lord; and therefore one freehold tenant, claiming by prescription on a presumed grant, can sue on behalf of himself and all the other freehold tenants to protect their rights over the waste of the manor as against the lord. Warwick V. Queen's College, Oxford, 6 L. R., Ch. 716; 40 L. J., Ch. 780; 25 L. T. 254; 19 W. R. 1098. Affirming, 10 L. R., Eq. 105; 23 L. T. 63; 18 W. R. 719.

Where rights of common have been exercised for many years, the court will try to find a legal origin for those rights. Ib.

If rights of common have been exercised for many years by the freehold tenants of a manor, and also by the inhabitants, the court will presume that the inhabitants claimed through the freehold tenants. Ib.

A freehold tenant of a manor does not, by ceasing to pay quit rents, and by neglecting to claim admittance, lose his rights as against the lord. Ib.

Numerous Manors.]-A custom for all the owners and occupiers of lands within a forest comprehending numerous manors to have rights of common over all the waste lands within the forest is not bad in point of law, and such a right may be established against all the lords of manors within the forest who dispute it by one single suit; for if the plaintiff claims one and the same right under one and the same title against them all, the bill is not rendered multifarious by the fact that they may raise different defences. Sewers of City of London (Commissioners of) v. Glasse, Epping Forest Case, 7 L. R., Ch. 456; 41 L. J., Ch. 409; 26 L. T. 647; 20 W. R. 515.

When a bill is filed on behalf of all the owners and occupiers of land within a district, except the defendants thereto, praying for the abatement of enclosures within the district, the owners and occupiers of the enclosures ought to be made defendants, since their interests conflict with those of the plaintiff. If they cannot all be made defendants, some may be chosen to represent the others, and the bill filed on behalf of all the owners and occupiers, except the defendants and the persons stated to be represented by the defendants. Such a bill is not demurrable, though of course relief can only be obtained by it against the parties before the court. Ib.

Surcharge.]-In an action for a surcharge of common, the plaintiff need not shew that he turned on any cattle of his own at the time of the surcharge, but only that he could not have enjoyed his common so beneficially as he ought. Wells v. Watling, 2 W. Bl. 1233.

In an action for a surcharge of common, the plaintiff may declare generally for the injury, without stating the defendant's right of common. Atkinson v. Teasdale, 2 W. Bl. 817; 3 Wils. 278. And see Cheesman v. Hardham, 1 B. & A. 706.

In an action for disturbance of common, when the defendant justifies on the days and times, &c., under a right of common for his cattle, levant and couchant, the plaintiff must new assign, if he intends to prove a surcharge. Bowen v. Jenkins, 2 N. & P. 84; W., W. & D. 511; 6 A. & E. 911.

One commoner, who has surcharged, may nevertheless maintain an action against another for surcharging the common. Hobson v. Todd, 4 T. R. 71.

Production of Documents relating to Title.]— A plaintiff filed a bill to establish a right of common of vicinage over a common within a manor of which the defendant was lord. By his answer the defendant denied the plaintiff's right:-Held, that he was entitled to production of the records of, and documents relating to, court barons held within the manor, to the production of accounts and memoranda relating to the digging of gravel and cutting of turf on the common, and to have a list of the documents relating to the title of the lord of the manor; but not to have such documents produced, the defendant stating by affidavit that they related exclusively to his own title as lord of the manor, and did not in any way tend either to establish the rights claimed or to defeat the defence to the suit. Minet v. Morgan, 11 L, R.,

Eq. 284; 23 L. T. 280. Affirmed, 8 L. R., Ch. | to share along with the owners of such copyhold 361; 42 L. J., Ch. 627; 28 L. T. 573; 21 W. R. 467. See further, DISCOVERY.

Costs of Feigned Issues.]-The valuer appointed under the General Inclosure Act (8 & 9 Vict. c. 118), allowed to A. rights of common in respect of 198 A. 1 R. 23 P. of land, and the assistant commissioner confirmed his decision. B., who claimed to be interested in the land proposed to be inclosed, being dissatisfied with the decision of the assistant commissioner, brought an action upon a feigned issue, under s. 56, in which he affirmed, and A. denied, that the decision of the commissioner was erroneous. A verdict was given for B. in respect of part of the 198 A. 1 R. 23 P., and for A. in respect of the residue :Held, that the costs were not to be taxed as in an ordinary action, but each party was entitled to the costs of that part of the issue in which he had succeeded. Hardy v. Featherstonhaugh, 4 L. R., Q. B. 725; 38 L. J., Q. B. 337; 10 B. & S. 628.

Compensation for Extinction of Commonable Rights.]-When the right in the soil of land subject to rights of common has been conveyed to the promoters of an undertaking by the lord of the manor under the Lands Clauses Act (8 Vict. c. 18), s. 100, but the compensation payable to the commoners has not been ascertained in the manner provided by the act, any such commoner whose rights of common have been disturbed by the works of the promoters may maintain an action againt them, and is not confined to proceedings for compensation under the Lands Clauses Act. Stoneham v. London, Brighton and South Coast Railway Company, 7 L. R., Q. B. 1; 41 L. J., Q. B. 1; 25 L. T. 788; 20 W. R. 77.

Where the parties have not agreed, the initiative in procuring the assessment is thrown upon the company. Ib.

and freehold lands in certain moneys, which had been paid as compensation on certain portions of the common lands having been taken compulsorily :-Held, that the occupiers were not entitled to share in the moneys, as the right they claimed could not have a legal existence; for, custom being out of the way as the right claimed was a profit à prendre in alieno solo, and no grant having been suggested, the occupiers could only claim by prescription, and it was impossible for them to claim in any of the ways in which prescription can be made, namely, in a man and his ancestors, or as a member of a body corporate, or in a que estate. Austin v. Amhurst, 7 Ch. D. 689; 47 L. J., Ch. 467; 38 L. T. 217; 26 W. R. 312.


Who may Approve.]-Any person who is seised in fee of part of a waste within a manor may approve, leaving a sufficiency of common, though he is not the lord of the manor. Glover v. Lane, 3 T. R. 445.

A custom for one commoner to enclose against another is good. Barber v. Dixon, 1 Wils. 44. An owner pur autre vie of a common may approve under 20 Hen. 3, c. 4, and 13 Edw. 1, st. 1, c. 46. Patrick v. Stubbs, 9 M. & W. 830; 11

L. J., Ex. 281.

To an action for a continuing disturbance of common, a plea of an approvement of the locus in quo, "leaving sufficient common of pasture for the plaintiff and all other persons entitled thereto, together with sufficient ingress to and from the same, according to the form of the statute," shews sufficiently that enough of common was left at the time of the approvement, and in the place where the plaintiff was entitled to enjoy it. Ib.

The copyhold tenants of a manor were entitled Against whom.]-The lords of manors within to common of pasture upon waste and lammas a forest contended that they had customs to lands subject to byc-laws made by the homage, inclose the wastes within their manors with the and such rights were preserved after enfranchise-consent of the homages of their respective manors. ment. The last bye-laws, made in 1835, provided Other persons, strangers to the manors, had rights that every copyholder and freeholder should be of common over the lands claimed to be inclosed: entitled to turn on one head of cattle for every-Held, that the inclosures were bad as against 107. of annual value of his lands and tenements, the commoners. Sewers, &c. (Commissioners of) provided that the whole number should not v. Glasse, 19 L. R., Eq. 134, &c., ante, col. 246. exceed thirty; and that every occupier of any copyhold or freehold lands should be entitled to turn on a certain number of cattle according to the rental or annual value of his lands and tenements. Portions of the common lands were taken compulsorily, and compensation for the rights of common was paid to a committee of the copyholders-Held, that such compensation was divisible among the copyhold tenants of the manor and the freeholders within the manor according to the stint fixed by the first clause of the bye-laws. For v. Amhurst, 20 L. R., Eq. 403; 44 L. J., Ch. 666.

The occupiers of copyhold and freehold lands and tenements within a manor claimed to be entitled to a right of common of pasture upon wastes and lammas lands, subject to bye-laws made by the homage, one of which provided that every occupier of any copyhold or freehold lands should be entitled to turn on a certain number of cattle, in proportion to the rental or annual value of his lands; and they accordingly claimed

Extent.]-A custom for the lord to grant leases of the waste of a manor, without restriction, from the time of the original grant, cannot be presumed, and is bad in point of law. Badger v. Ford, 3 B. & A. 153.

A custom for the lord, with the assent of the homage, to grant part of the waste in severalty, in exclusion of the commoners, is good. Boulcott v. Winmill, 2 Camp. 261.

On the trial of a question between the lord of a manor and a commoner, as to the right of the former to enclose a portion of the waste, leaving a sufficiency of common for those having a right of common there, the waste being part of a royal forest :-Held, that the right of the crown to turn deer on the waste did not form an element for the consideration of the jury, on the question of sufficiency of common, in a case where no deer had been turned on the waste for upwards of twenty years. Lake v. Plaxton, 10 Ex. 196; 24 L. J., Ex. 52.

Against Turbary.]-The lord of the manor is not of common right and in virtue of his ownership of the soil entitled to approve against common of turbary and estovers. Lascelles v. Onslow (Lord), 2 Q. B. D. 438; 46 L. J., Q. B. 333; 36 L. T. 459; 25 W. R. 456.

The lord of the manor may, by custom, approve against a right of common of turbary, and by custom he may convert the waste of the manor into copyhold and not freehold. Parrott v. Watts, 37 L. T. 755.

A custom for the owners of a waste to set out to the owners of certain ancient messuages portions of the waste to be by them held in severalty for getting turves therein, and when the portions set out are cleared of turves, for the owners of the waste to inclose and approve such portions, to hold at their pleasure in severalty for ever, freed of all common of turbary and pasture, is good. Clarkson v. Woodhouse, 5 T. R. 412, n. And see Bateson v. Green, 5 T. R. 411; Place v. Jackson, 4 D. & R. 318.

It was at one time held that there could be no approver in derogation of a right of common of turbary. Grant v. Gunner, 1. Taunt. 435.

But, semble, that a lord may approve against a right of common of turbary. Arlett v. Ellis, 7 B. & C. 346; 9 D. & R. 897; 9 B. & C. 671.

But the lord has not an unlimited right to inclose parts of a common without the consent of the homage. Ib.

In pleading the right of a lord to inclose parts of a common, it must be stated that there was sufficiency of common left for the commoners. Ib.

The lord, or those claiming under him, must prove there was a sufficiency of common left; and, in the case of a common of turbary, that what was left was also conveniently situated for the commoners. Ib.

When a part and not the whole of a common has been inclosed, a commoner, in asserting his right of common, may throw down the whole of the hedge erected on the common. Ib.

Against Pasturage.]-Lords of manors can, by the Statute of Merton, approve against common appurtenant of pasture; and the proviso in the Statute of Westminster the Second, c. 46, only prevents derogation from an express grant. Robinson v. Duleep Singh, 11 Ch. D. 798; 48 L. J., Ch. 758; 39 L. T. 313 ; 27 W. R. 21— C. A.

ments by persons who were the owners of the bushes and underwood; that the agreement of 1769 was inoperative against such owners; and that the lord had no right to inclose as against them. Nichols v. Mitford, 20 Ch. D. 380; 51 L. J., Ch. 485; 30 W. R. 509.

Sufficient Pasturage remaining.]-Where, in 1618, an arrangement was made between the lord of a manor and the tenants that a specified extent of the waste might be approved, and such arrangement had not been subsequently disturbed until 1866-Held, that on approving a further portion of the waste the burden lay on the lord of showing that enough pasture was left for the use of the tenants. Smith v. Brownlow (Earl), 9 L. R., Eq. 241 ; 21 L. T. 739; 18 W. R. 271.

Where the lord claims a right to inclose a part of the waste, the onus of shewing that sufficient waste is left for the commoners lies upon the lord. Betts r. Thompson, 6 L. R., Ch. 732: 25 L. T. 363; 19 W. R. 1098. Affirming, 23 L. T. 427; 18 W. R. 1099.

The lord of a manor, or his grantee, may inclose and approve part of a common against tenants having common of pasture, notwithstanding they have also some other right on the common, as a right to dig sand, &c., if he leaves sufficient common of pasture. Shakspear v. Peppin, 6 T. R. 741.

Digging Gravel.]-A custom of inclosing for the tenants in a manor, does not abridge the common law right of the lord to inclose. Duberley v. Page, 2 T. R. 392, n.

The lord has no right to inclose and approve the wastes of a manor, where the tenants of a manor have a right to dig gravel on the wastes, or take estovers there.


Building.]-Evidence that the lord of a manor has, from time to time, erected houses to the exclusion of those claiming a right of common, is not to be placed in competition with evidence of long enjoyment, coupled with an acknowledg ment of the defendant, the lord of the manor, by deed, that the confirmation of the commoners was essential to an alienation of part of such common. Drury v. Moore, 1 Stark. 102.

A custom for the lord, with the consent of the homage, to grant parts of a common for building, is good. Folkard v. Hemmett, 5 T. R. 417, n.

Freehold Tenants with Right of Property in Underwood.]-In the year 1769 the lord of the manor, the freehold tenants of which were not only entitled to common of pasture, but were also collectively the owners of the bushes and underwoods growing on the wastes of the manor, entered into an agreement, under 29 Geo. 2, c. 36, with the major part of such tenants for the periodical inclosure of parts of the wastes of the manor for the growth and preservation of timber and underwood; and this agreement appeared to have been from time to time acted upon, from the year 1773, until, in the year 1880, two of the freehold tenants of the manor brought an action on behalf of themselves and all other the freehold tenants against the lord of the manor to restrain him from further infringement of their rights :-Held, in a special case stated in that action, that the act of 29 Geo. 2, c. 36, applied only to agreements by persons entitled to common of pasture and not to agree-liament for dividing and inclosing a common are


Corporation.]-Trustees under an act of par

Acquiescence.]-Where the lord of a manor asserted a right to inclose the waste of the manor, and some of the freehold tenants, under threat of legal proceedings, ceased to use the waste for depasturing cattle as they had theretofore done :-Held, that this was not an interruption acquiesced in of the right within the Prescription Act (2 & 3 Will. 4, c. 71), s. 4, so as to bar the right of the freeholders generally. Warwick v. Queen's College, Oxford, 6 L. R., Ch. 716; 40 L. J., Ch. 780; 25 L. T. 254; 19 W. R. 1098. Affirming, 10 L. R., Eq. 105; 23 L. T. 63; 18 W. R. 719.

a corporation, by implication. Newport Marsh | being taken for an inclosure, the commissioners Trustees, Ex parte, 16 Sim. 346; 18 L. J., Ch. 49; 12 Jur. 932.

state in their provisional order that certain lands shall be allotted to a particular person, this is only a direction to those who have to make the allotment, and the land in question remains subject to the powers contained in the inclosure act. The valuer, therefore, is justified in entering upon it, and valuing it, in the same manner as any other portion of the land to be inclosed. Grubb v. Brown, 1 F. & F. 352.

Power of.]-Commissioners of inclosure have no power, in exchanging freehold lands subject to heriots and reliefs, to make the allotted lands so subject. Basingstoke (Mayor, &c.) v. Bolton (Lord), 3 Drew. 50.

But the commissioners have power, under 8 & 9 Vict. c. 118, s. 147, to confirm an exchange of gavelkind lands in Kent for common socage lands in Middlesex. Minet v. Leman, 7 De G., Mac. & G. 340; 24 L. J., Ch. 545; 1 Jur., N. S. 410, 692. Commissioners by an inclosure act authorized to award lands in exchange for other lands, are authorized in awarding lands given in exchange, partly for other lands, and partly for money. Doe &. Suffield (Lord) v. Preston, 7 B. & C. 392;

Consent of Owner of Sub-soil.]-One who, being owner (not the lord of the manor) of a piece of land on which certain persons had rights of common, had also the right, as owner of the soil, of getting the brick earth under the surface without interfering with the rights of the commoners. Upon an application by certain of the commoners to the commissioners, under 8 & 9 Vict. c. 118, s. 27, for the inclosure of this piece of land, the interest of such owner in the land,

1 M. & R. 713.

Commissioners were required to allot the lands directed to be inclosed, under the several proprie-in respect of such brick earth, is to be taken into tors thereof, in such shares, quantities, &c., as account by the assistant commissioner in calcuthey should adjudge to be a just compensation lating the several amounts of interest in the for their several and respective lands, rights of land proposed to be inclosed of the dissenting common, &c., therein; and were empowered also and assenting parties, and the commissioners to set out, allot and award any lands in the will be prohibited from proceeding in the proparish of A., in lieu of or in exchange for any posed inclosure without his consent. Church v. other lands within the parish, provided that all Inclosure Commissioners for England and Wales, such exchanges should be ascertained, specified 11 C. B., N. S. 664; 31 L. J., C. P. 201 ; 8 Jur., and declared in and by the award to be made by N. S. 893. the consent of the owners of the lands exchanged. The commissioners awarded a certain allotment to A., as a compensation for his open fields, lands and rights of common, and an old inclosure given up by A. to be allotted by the commissioners in exchange-Held, that the commissioners had not pursued the powers vested in them by the act, and that A. could not make a good title to the allotment. Wingfield v. Tharp, 10 B. & C. 785.

An award was made in 1765 by inclosure commissioners, acting under the authority of an act of parliament, whereby they apportioned certain lands and a rent-charge between the rectors of B. and curates of U. A curate of U. complained in 1866 that this allotment was beyond the power of the commissioners, and prayed that the award might be rectified, and a fresh partition made :— Held, that the commissioners had power to make the allotment. Bateman v. Boynton, 1 L. R., Ch. 359 35 L. J., Ch. 568; 12 Jur., N. S. 383; 14 L. T. 371; 14 W. R. 598.

Hainault Forest.]-A commissioner appointed under the 21 & 22 Vict. c 37, has the power to find what lands are commonable in the forest of Hainault, and whether the rights of common are limited to the commons in the particular parish in which are situated the lands in respect of which the rights are claimed, or what is the nature of such rights. Walford v. Wetherell, 9 C. B., N. S. 648; 3 L. T. 738.

Oath. The 41 Geo. 3, c. 109, so far as it enacted that the commissioners' oath, and the appointment of any new commissioner, shall be annexed to and inrolled with the award, is merely directory. Cassamajor v. Strode, 5 Sim. 87; 2 Mylne & K. 706.


Refusal to Pay-Ejectment.]-By a local act it was provided, that, out of the lands to be allotted, the commissioners should allot a part in their judgment sufficient, when sold, to defray the expenses of carrying the act into effect; and if it should prove insufficient, the deficiency should be made up by the persons interested in the lands to be inclosed, and should be paid in such proportions, and at such times, as the commissioners should direct. The commissioners having set apart and sold a portion of the lands to be allotted in order to defray the expenses, found that there was a deficiency, and made a rate upon the parties interested, in order to provide for that deficiency. One of those parties having refused to pay :-Held, that the commissioners might bring ejectment under 41 Geo. 3. c. 109, s. 29, to recover the land allotted to him in respect of which the rate was imposed. Doe d. Harris v. Bodenham, 9 B. & C. 495.

Distress. By an act, it was directed that the costs of carrying the act into effect, and all the charges of the commissioners and the persons employed by them, should be borne by the parties interested in the lands to be allotted as the commissioners should direct, and should be levied according to the 41 Geo. 3, c. 109; and the commissioners were required once a year at least to lay before a justice of the county a statement of all the sums by them received and expended or due to them for their own trouble and expense: and it was enacted that no charge or item in such account should be binding or valid, unless the same should have been duly allowed by such justice. Commissioners under the act levied by distress a sum of money, part of which was due for their own trouble and expense


Effect of.]—If, upon preliminary proceedings during several preceding years, and had not been

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