WILLIS against Ward. 1818. 9th Nov. tle, levant and common is not THIS HIS was an action for a disturbance of the plain- The allegation of a right of tiff's right of common, and was tried before BAY. common for all LEY J. at the Summer Assizes at Durham. Topping the party's catnow moved to set aside a verdict for the plaintiff, and couchant, is supported in (with leave) to enter a nonsuit. The declaration stated evidence, ala right in the plaintiff to common for all his cattle though the levant and couchant; but according to the evidence, sufficient to the common was insufficient for the support of all the tle for any length of cattle, and therefore the right could not possibly exist time (a). in the manner in which it was alleged. The allegation should therefore have been made with more limitation, and should have corresponded with the title which the plaintiff proved. ABBOTT C. J. The statement in the declaration appears to correspond with the fact. Nature, it seems, has set a limit to the exercise of the right of common; but the party was entitled to put all his cattle levant and couchant on the common, although, from the limited extent of it, he would not be able to keep them there long with benefit. PER CURIAM. Rule refused. (a) The claim of a right of common of pasture for all the plaintiff's cattle, levant and couchant, on his land, is supported by evidence, that the plaintiff was part owner with the defendant and others of a common field, upon which, after the corn was reaped and the field cleared, the custom was for the different occupiers to turn out their cattle in common; the number turned on being in proportion to the extent of their respective lands within the common field, although such cattle were not maintained upon the land during the winter; and although the custom proved was to turn out in proportion to the extent, and not to the produce of the land, in respect of which the right was claimed. Cheesman v. Hardham, 1 B. and 4.706. The law relating to a right of common of this nature is very ably explained in Mr. Serj. Williams's notes, 1 Saund. 28, and 28 (a). feed all the cat 1816. 1st May. HOMPHREY against RIGBY. The plaintiff PEAKE moved in arrest of judgment, or for a repleader. He contended that the breaches were not may suggest breaches in an action on a Wm. 3. c. 11. s. 8.) at the conclusion of his replication (a). bond (8 and 9 properly suggested according to the statute 8 & 9 W. 3. c. 11. s. 8. The action was upon a bond. Defendant, after craving oyer of the bond and the condition, which was for the payment of different sums on different days, pleaded 1st, Non est factum; 2d, Fraud and covin; 3d, same generally. The plaintiff replied; and 1st, Joined issued; 2d and 3d, denied the fraud and covin, and took issue thereon, and then proceeded thus: " and hereupon for assigning a breach of the said condition, according to the statute, the said plaintiff suggests, and gives the Court here to be informed that, &c. (shewing the breach, and then suggested another breach thus:) "and for assigning a further breach," &c. The verdict was given for the plaintiff. He then read the statute 8 & 9 W. 3. c. 11. sec. 8. and said that there were only three cases in which the breaches may be assigned, viz. in judgment by nil decit; 2d, Confession; 3d, Demurrer. And they should be assigned either in the declaration or in the replication; here they were suggested at the end of the replication: and he cited Etherson v. Jackson, 8 T. R. 255; Delarue v. Stewart, 2 New Rep. 362; Plomer v. Ross, 5 Taunt. 386; 1 Marsh. 95. It was recommended by Mr. Serjeant Williams to be assigned in the declaration. But the statute had lain dormant for a century. LORD ELLENBOROUGH C. J. What was the first case in which it was held compulsory to proceed according to the act? (a) N. B. It is now considered better not to assign the breaches in the declaration; and that it is preferable to assign them in the replication. Peake. Drage v. Brand, 2 Wils. 377, and Hardy v. Rosewell, 5 T. R. 638, 636, in this Court. HOLROYD J. Mr. Serjeant Williams recommended the course of assigning it in the declaration; but suggested a difficulty where the plea was non est factum; however, in Everson v. Stewart, it was held that it might be done even upon non est factum. BAYLEY J. Plum er v. Ross is not contradictory to Etherson v. Jackson. Peake. The defendant has by this proceeding had no opportunity of pleading to the suggestion. PER CURIAM. Nor has he ever an opportunity of so pleading, in any case where there is a suggestion. LORD ELLENBOROUGH C. J. thought it might be done as in this case. 1816. HOMPHREY against RIGBY. THIS GABELL against SHAW. Rule refused. 1822. 12th Feb. ration contained, besides the usual money debitatus and counts, the in HIS was a rule calling on the plaintiff to shew Where a declacause why it should not be referred to the Master, to strike out two unnecessary counts in the plaintiff's declaration, which contained the indebitatus and quantum meruit counts, for work and labour performed by the plaintiff as an attorney, and two counts for work and labour generally, with the usual money counts. Chitty shewed cause against the rule, and said that as the counts in question might be for separate and distinct demands; viz. for professional business, and for other labour, the Court would not try upon affi quantum meruit counts for work and labour as an attorney, and two similar counts for work and labour generally, the Court referred it to the Mas ter to strike out the latter for superfluity; before the issue was made up. 1822. GABELL against SHAW. davit whether they were superfluous or unnecessary. At this stage of the action it was premature, at all events, to refer it to the Master to strike out the counts, supposing them to be superfluous. Platt, contra, referred to Boroness v. Wilcock (a), and Tidd, 6th ed. 467. as direct authorities. THE COURT said that the authorities cited were sufficient to warrant the reference to the Master, and therefore made the Rule absolute (b). (a) Barnes, 860. (b) See 1 Chitty's Rep. 448; and Bayley v. Watkins, ib. 450, and cases there cited. 1817. 4th Feb. It is not necessary to set out the date of a bill; its delivery is its date; and it is a sufficient averment of nonpayment of a bill accepted, payable at 4. B.'s, to state that it was pre sented at their house, without shewing it was to him. GILES against BOUNE. MARRYAT, in support of demurrer. This was an action on a bill of exchange; but the declara tion did not state any date to the bill. LORD ELLENBOROUGH C. J. Then if there's no date, it operates from the delivery. The date in fact means the delivery, but is generally not left to parol evidence, but is stated on the face of it; but still this is only the delivery. Marryat admitted that it was so in the case of deeds. LORD ELLEN BOROUGH C. J. And the rule is the same as to bills, as may be collected from the case of Hague v. French, 3 Bos. & Pul. 173. Marryat. The second point is, that the bill being made payable at Messrs. A. and B. at a particular place, the averment only stated that it was presented there and not paid; it was not said that it was presented to A. and B., and that it was not paid by the defendant, or any person or persons on his behalf. LORD ELLENBOROUGH C. J. It was not to be paid by A. and B., but only payable there; and if it is paid by any other person, it is in fact paid by the defendant. LA Judgment for plaintiff. DEARE against Edmunds. AWES stated that this was an action for use and 1817. GILES against BOUNE. 1817. 20th Nov. Plea of distress taken to action for use and oc retained, or that it was le and retained; demurrer and joinder. He contended cupation, no answer, unless that the act of distress does not amount to satisfac-stated how long tion. The old form of plea was, that the money had been levied by distress, Rastal, 175. It is not here gally taken (a). averred that distress was sold. If it was merely a pledge, the party might abandon it. BAYLEY J. It is not even stated that the distress was legally taken, nor how long it was detained. Platt, contra. The plea states that the distress was taken on the premises, and therefore liable to be taken, and prima facie, the distress was lawful; and after taking the remedy by distress, the party cannot harrass his tenant by an action for the rent. See also Vasper v. Eddows, 1 Salk. 248. Burr. Rep. 1738. Robinson v. Clayton, Cro. Car. PER CURIAM. The law is not so, for they might (a) The same point was decided in Lees v. Wright, Trinity Term, 1822, in K. B. |