Dale, and the common of one of these comes in dispute, one of the latter may be called to substantiate the right of the former, because it, in effect, charges himself, by admitting another person to have common with him: 1 Ld. Raym. 731. Nor is it a good exception to a witness that he has common because of vicinage in the lands in question; for this is no interest, but only an excuse for a trespass: Bull. N. P. 285.

COMMON, DEFENCE OF RIGHT OF.

NATURE AND FORM OF PLEA, AND SUBSEQUENT PLEADINGS, 372.
PRECEDENTS, 374.

EVIDENCE FOR DEFENDANT, 376.

EVIDENCE FOR PLAINTIFF, 377.

Nature and Form of Plea, &c.

Plea.] In an action of replevin or trespass to real or personal property, if the defence be founded on a right of common, the same must be pleaded specially, 2 Wils. 51, Yelv. 104, 3 Wils. 126, 291, 1 Saund. 25, 346, Com. D. Piscary, 6 T. R. 748; and the plea must not amount to the general issue: 1 Sid. 106; 1 Keb. 391, 453; 2 Mod. 274. If the deft. would drive the plt. to a new assignment, he should plead liberum tenementum, either in himself or another person: Stevens v. Whistler, 11 East, 51. A freeholder or copyholder, or his tenant, may plead this right, Com. D. Pleader, 3 K. 24; and see further, as to who is entitled to and may consequently plead it, Wolw.

If the deft. claims the right as a freeholder, or through him, he should prescribe for the right, Com. D. Pleader, 3 K. 24, 1 Saund. 348, n. 10; if as a copyholder, he should allege a custom within the manor, either for all copyholders, within the manor, or for the tenant of the deft.'s land in particular; ib. Or, where a copyholder claims the common in the soil of a stranger, which is not parcel of the manor, he must prescribe in the name of the lord: viz. that the lord of the manor and his ancestors, and all those whose estate he hath, have immemorially had common, &c., in the locus in quo, for themselves and their customary tenants; 1 Saund. 349, n. 11; Com. D. Pleader, 3 K. 24. The commoner must set out his title to the right accurately, Underwood v. Saunders, 2 Lev. 178; and it will not suffice for him to state a mere possessory title, as in a declaration. If a freeholder, or one claiming through him, he ought to show a seisin in fee of the land to which he claims his right in himself or others, under which he derives his title: Cro. Car. 599; 4 T. R. 718; Hutchinson *v. Jackson, 2 Lutw. [*373] 1324. A freeholder may plead his right in a que estate: Fallet v. Troake, 2 Ld. Raym. 1188. A copyholder should state his estate, but he need not show it in certain, 2 Taunt. 320, but only allege that every customary tenant of the premises has had, from time immemorial, the right of common, which he claims on a certain waste parVOL. I.

55

cel of the manor, supra: Davy v. Watts, 1 Keb. 652. Care must be taken not to join irreconcilable interests in such a plea: 2 Wils. 258. It is not necessary to aver that the commoner was in possession, as that is implied from the allegation of a seisin in fee, until the contrary be shown: Stott v. Stott, 16 East, 343; 4 M. & S. 392. An inaccuracy in the words denoting the prescription may be cured by the verdict: 3 T. R. 147. The various customs of particular manors must be attended to in framing this plea: therefore, in putting out cattle on a common of vicinage, it is indispensable to state the mutual rambling of the cattle, from immemorial usage, and such other facts as may be necessary to establish a mutual privilege of intercommoning: Gullet v. Lopes, 13 East, 348.

The right itself should be stated specifically, and with certainty : 1 Ld. Raym. 645. The name of the manor wherein the waste is, should be stated, but the omission is cured by 16 and 17 Car. 2, c. 8; 5 T. R. 412, n. The nature of the common claimed should be distinctly set forth; for, where a deft. justified under a right of fishery, but did not say whether it was free, several, or common, his pleading was adjudged bad: Fitz. C. P. 2; 1 Rol. Rep. 425. If the right be for any particular cattle, or any particular number of cattle, it should be qualified accordingly in the plea, ante, 365. The levancy and couchancy of the cattle should be stated, except in certain cases; see ante, 365. The duration and extent of the right should be stated with certainty, and accurately 6 T. R. 748; 2 ib. 376.

An averment, that A. B., and all those whose estate he has, from time immemorial, were accustomed, and, during all the time aforesaid ought to have common, was, on demurrer, holden inadequate to show a right of common during a whole year: Hawkins v. Eckles, 2 B. & P. 359. Where the plt. prescribed for a right of sole pasture, from the feast-day of St. Thomas, until the 18th April, and proved the exercise of the right between those periods, it was held, on motion to set aside a nonsuit, that it was not necessary to allege the right in the pleadings from Old St. Thomas' Day: Smith v. Flower, 3 Bing. 401. As to the words, "as to said messuage, &c., appertaining," &c., see ante, 366; they seem to be necessary: 1 Saund. 346, c.; 3 Lev. 104; sed vide Styles, 428. It seems necessary to state, that deft. could not enjoy the common so beneficially as he might see ante, 367. The right should be amply stated, so as to answer the whole declaration; otherwise it will fail; as, where trespass was brought for damage done by horses, oxen, and cows, and there was a justification to have common for two geldings only, it was holden bad: Thornel v. Lassels, Cro. J. 27; and see 8 Mod. 120. The time alleged in the declaration should also be strictly followed in the plea: 2 Saund. 1, 63, d.; 2 Rol. Ab. 676. Although the plea be good in one part of its justification under the right, if bad in the rest, it will wholly fail: 1 Saund. 27. Duplicity must be avoided; but, though issue must be taken upon a single point, it is not necessary that this single point should consist only of a single fact; as, where the point is, that cattle are entitled to common, they must be both his own cattle, and also levant and couchant, which are two different circumstances of their being entitled to common: Robinson v. Ro

ley, 1 Burr. 316; 2 Lutw. 1395; 1 Saund. 346, c. And, where it was urged that the plea was double, as stating a right of common which doth not lie in prendre, for the plt. cannot cut and take away the grass from off the common, but only feed and take it by the mouths of

his cattle, and a right to cut and take away rushes, which lies *on- [*374] ly in prendre, it was held, that both together constituted but

but one united right: Bean v. Bloom, 3 Wils, 456; 2 W. Bl. 926,

s. c.

Replication.] To a plea claiming a right of common, the plt. cannot reply de injuria, Willes, 101, but must either deny the seisin in fee, or other title to the estate, as appendant to which the deft. claims his right, or may deny the right of common, as stated in the plea, ib.; for, although a right of common may exist in the manor, it may be restricted in various particulars: Gerrish v. Rodburne, 3 Wils. 165; or show such grounds as will establish a ground for the plt.'s complaint, 1 Show. 350; or that the cattle were the deft.'s own commonable cattle, levant et couchant, on the premises, concluding to the country, and not with a formal traverse: 1 Burr. 320. But the existence of the privilege has been sometimes traversed, Hickman v. Thorne, 2 Mod. 104, and, under certain circumstances, is generally adopted; as, where it is intended to set up another prescription, 1 Burr. 316, inconsistent with the one first re. lied on, 1 W. Bl. 49; in which case it is necessary that the whole of a prescription should be traversed: 4 T. R. 157. It need not, however, be so in express terms, if, from the nature of the common, it appear that the averments are tantamount to a direct traverse, 1 Wils. 339; and a traverse should not be adopted after a sufficient confession and avoidance, 2 Saund. 1; nor made use of to negative an inference of law: 2 H. Bl. 182. It is said, that where the deft. has turned out other cattle, as well as his own commonable cattle, the plt. should new assign, stating, that he brought his action for depasturing the common with other cattle, and ought not to traverse the levancy and couchancy stated in the plea of justification: 1 Saund. 346, a. Plt. may also reply an approvement, or that the locus in quo has been inclosed from the common more than thirty years, and enjoyed adversely, 2 B. & C. 918, and see 2 Taunt. 156; but, if only part of the close wherein the alleged trespass was committed has been so inclosed, the plt. should reply that fact, and it would be too much to reply the whole close had been inclosed: ib. If the plt. new assigns to a plea of liberum tenementum, care should be taken that the closes newly assigned are the same with those to which the deft.'s plea applies: Pratt v. Dome, 15 East, 235. A departure must be avoided: 3 Rep. 247. And, where plt.'s surrejoinder admitted deft.'s right of common, but complained of a surcharge, it was held to be a departure: Ellis v. Rowles, Willes, 638; 2 Wils. 96.

Precedents.

AVOWRY FOR A DISTRESS, DAMAGE FEASANT BY A FREEHOLDER HAVING RIGHT OF COMMON OVER LOCUS IN QUO.

(Actio non, post, "Replevin.") Because he says, that before, and at the said time, when, &c., the said deft. was, and still is, scised in his demesne as of fee, of and in a certain mes

suage and land, with the appurtenances, situate, &c.; and that the said deft., and all those whose estate, &c., had, of and with the said messuage and land, with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have had, &c., and been used and accustomed to have, and of right ought to have had, and the said deft. still of right ought to have, for himself, and his and their tenants, farmers, occupiers of the said messuage and lands, with the appurtenances, common of pasture, in, upon, and throughout the said place, in which, &c., called for all his and their commonable cattle, levant and couchant, in and upon the said messuage and land, with the appurtenances, every year, and at all times of the year, as to the said messuage and land, with the appurtenances belonging and appertaining; and because the said cattle, in the said declaration mentioned, at the same time, when, &c., were in and upon the said place in which, &c., called - de

pasturing, and destroying the grass when there growing and being, doing da

[*375] mage there, so that the said deft. *could not have or enjoy his said common of pasture there, in so ample a manner as he ought to have had and enjoyed the same; the said deft. well avows the taking of the said cattle in the said declaration mentioned, in and upon the said place, in which, &c., called -, and justly, &c., as for and in the name of a distress for the said damage so there done and doing as aforesaid. And this, &c.; as post, "Replevin."

PLEA IN TRESPASS, JUSTIFYING, BY A LEASEHOLDER OR FREEHOLDER, AND HIS SERVANT,
UNDER A PRESCRIPTIVE RIGHT OF COMMON OF PASTURE.

(Actio non, post, "Trespass." If only part of the trespasses be justified, enumerate that part in the commencement.) Because he says, &c. (stating the seisin in fee, and prescriptive right of common in the deft., if he be a freeholder, as ante, 374; or, if the deft. be a tenant, after stating the seisin in fee, and the right of common, set forth the demise, thus:) Because he says, that G. H., before the said time, when, &c., and at the time of the making of the demise hereinafter mentioned, was seised of, and in the said place in which, &c., with the appurtenances, in his demesne, as of fee; and, being so seised, the said G. H., before the said time, when, &c., to wit, on, &c., at, &c., aforesaid, demised the said place in which, &c., with the appurtenances, to the said deft., to have and to hold the same to the said deft. for one whole year from thence next ensuing, and fully to be complete and ended, and so from year to year, as long as the said G. H. and deft. should respectively please; by virtue of which said demise, the said deft. in his own right, and the said E. F., as his servant, and by his command, at the said times, when, &c., entered into the said close, in which, &c., in order to turn and put, and did then and there turn and put into and upon the same, the said horses, mares, geldings, cows, oxen and sheep, in the said first count of the said declaration mentioned, being the said deft.'s own commonable cattle, levant and couchant, in and upon the said last-mentioned land, with the appurtenances, to use the said common of pasture of the said deft. there; and, in so doing, the said deft. and E. F., at the said times, when, &c., with their feet, in walking, necessarily and unavoidably trod down, trampled upon, spoiled, consumed, and destroyed, a little of the grass and hay, herbs, roots, shrubs, and bushes, there growing and being; and, with the said horses, mares, &c., in the said first count mentioned, necessarily and unavoidably trod down, trampled upon, spoiled, ate up, depastured, consumed, and destroyed, a little other of the grass and hay, herbs, roots, shrubs, and bushes, there also growing and being; and because the said close, in which, &c., before and at the said time, when, &c., had been, and was, wrongfully inclosed with and by means of the said ditches, fences, and gates, in the said first count of the said declaration mentioned, before then wrongfully dug, made, and put and placed in and upon the said close, in which, &c.; so that, without filling up and levelling the said ditches and fences, and removing the said gates, the said deft, could not use or enjoy his said common of pasture, in, upon, and throughout the said close, in which, &c., in so ample and beneficial a manner as he otherwise might, and would, and ought to have done, the said deft., in his own right, and the said E. F., as the servant of the said deft., and by his command, at the said several times, when, &c., with the said pickaxes, hatchets, saws, and mattocks, and other instruments, in the said first count mentioned, filled up and levelled the said ditches, and dug up, threw down, and prostrated the said fences and gates, in the said first count mentioned, and took and carried the said gates to a small and convenient distance, where they left the same for the use of the said plt., doing no unnecessary damage to the said plt., on the occasions aforesaid, and as they lawfully might, for the cause aforesaid, which are the said several supposed trespasses in the introductory part of this plea mentioned, whereof the said plt. hath above complained against the said deft. and E. F.; and this the said deft. is ready to verify: wherefore he prays judgment, if the said plt. ought to have or maintain his aforesaid action thereof against him, &c.

i

PLEA IN BAR TO AVOWRY DAMAGE FEASANT BY A COMMONER; DENIAL OF HIS RIGHT OF COMMON.

And the said plt., as to the avowry of the said deft., saith, that the said deft., by reason of any thing by him in that avowry above alleged, ought not to avow the taking of the said cattle [or goods and chattels] in the said place in which, &c., and justly, &c., because he saith that the said deft., "and all those whose estate he now hath, and at the [*376] said time, when, &c., had, of and in the said messuage and land, with the appurtenances, for the time being, from time whereof, &c., have not had, nor have been had, nor ought the said deft. still of right to have, for himself and themselves, his and their tenants and farmers, occupiers of the said messuage and land, with the appurtenances, common of pasture, in, upon, and throughout the said place, in which, &c., called, for all his and their commonable cattle, levant and couchant, in and upon the said messuage or land, with the appurtenances, in every year, at all times of the year, as to the said messuage or tenement, and land, with the appurtenances belonging and appertaining, in manner and form as the said deft. hath above, in his said avowry in that behalf, alleged. And this the said plt. prays may be inquired of by the country.

See forms of pleas in trespass of prescriptive right of common, by a copy-holder, 2 Chit. P. 1111; by a rector, ib. 1112; per cause de vicinage, ib. 1113; of common of estovers, &c., ib. 1115; of common of fishery, ib. 1106; pleas in bar in replevin of plt.'s right of common, ib. 1198; replication of approvement of common, ib. 1112, 1231; replication that locus in quo had been inclosed from the common thirty years: Richards v. Peake, B. & C. 918; and Hawke v. Bacon, 2 Taunl. 159.

Evidence for Defendant.

The requisite evidence to support rights of common, where they are pleaded in excuse or denial, is proof of the title to the right of common itself; the exercise of that right; and by deft.'s cattle, levant and couchant.

We have already seen what proof of title is requisite, and the mode of such proof, ante, 364; also, how the right of common should be proved, ante, 370. In addition, it may be observed, it may be shown by the testimony of old uninterested individuals, or by a grant beyond time of memory. In the absence of such proof, reputation may be resorted to, Morwoodv. Wood, 14 East, 329; especially if supported by confirmatory evidence, Weeks v. Spark, 1 M. & S. 679; and, therefore, a declaration of a former tenant of a messuage, in respect of which a right of common is claimed, is admissible in evidence of such right: Walker v. Broadstock, 1 Esp. Rep. 458. The declarations of deceased persons may be, even in some cases, made available; and it has been held, that a paper, signed by many deceased copyholders of a manor, importing what was the general right of common in each copyholder, and agreeing to restrict it, was evidence of reputation even against copyholders not claiming under those who signed it, Chapman v. Coulan, 13 East, 10; and, although a prescription pre-supposes a grant beyond time of memory, the court will allow the production of ancient grants, without date, the probability of the existence of which, beyond time of memory, must be left to the jury: Addington v. Clode, 2 W. Bl. 989. In some cases, a new grant will be presumed, as from an uninterrupted possession for several years, Cowlam v. Slack, 15 East, 1802; unless, from the proximity of the lands, a trespass might easily pass unnoticed by the commoners intruded on: Dawson v. Duke of Norfolk, 1 Price, 246. Or, the waste has been depastured through mistake and ignorance of the boundaries of two adjoining commons: Hetherington v. Vane, 4 B. &