been accustomed to ftray and escape out of the faid laft mentioned 50 acres of land, into all the other parts of the faid field whereof &; which have fo laid open and uninclofed, and were not divided, as aforefaid, by any fences or inclofures whatsoever, and which have not within that time been fown with any kind of corn, and to intercommon there; and that for and during all the time aforefaid, the mares and geldings of the respective owners of all other parts of the faid field whereof Ec. (the laft mentioned 50 acres of excepted) which have fo during all the time aforefaid lain open and were not inclofed and divided as aforefaid, by any fences or inclofure whatfoever, and of their farmers and tenants of fuch refpective parts of the faid field, fo lying open and not inclofed or divided as aforefaid, refpectively, for the time being levant and couchant upon fuch their faid respective lands, and feeding and depafturing there yearly and every year from Michaelmas-day according to the faid old style, in cafe all the corn growing, before corn harvest, in fuch year in the faid field wherec f &c. hath been before that time cut down, taken, and carried away from thence, and if not, then from the time that all the corn growing before corn harvest.in fuch year in the faid field whereof &c. hath been cut down, taken and carried away from thence until Lady-day then next following; according to the fame old ftyle, have used and been accustomed to ftray and escape out of the faid refpective lands of the refpective owners of fuch mares and geldings, into all parts and parcels of the faid laft mentioned 50 acres of land, parcel &c. fo lying and having lain open, and not inclosed of divided as aforefaid, by any fences or inclofures whatfoever, which have not during that time been fown with any kind of corn, and to intercommon there, which faid feveral ftrayings, efcapings, and intercommonings have been during all the time aforefaid called and known by the name of Shack." The demife of the faid 50 acres of land from Robert Jennis to the plaintiff Whiteman was then fet forth, &c. and That as well the faid parcel of the faid field in which &c. as the faid. laft mentioned 50 acres of land, parcel, &c. fo lying and being open &c. and all the corn, &c. being cut down and carried away, the faid cattle in the faid declaration mentioned being the commonable geldings and mares of the faid plaintiff Whiteman, levant and couchant upon his faid laft mentioned 50 acres, and feeding and depafturing there, &c. &c. ftrayed and efcaped from the faid laft mentioned 50 acres of land, into the faid parcel of the faid field 14 1791. WHITE MAN v. KING. field in which &c. the fame then, and from thence until &c. MAN V. KING. 1791. the faid open fields, it had been the practice for fome years then paft, by general confent, to fow feveral pieces or parcels of WHITE land lying together in the fame field (called a fhift) and belonging to different occupiers with turneps, whenever the faid lands came in course for that purpose, and to inclose and separate the whole of the faid shift from the next adjoining lands with hurdles, lifts, or faggots, &c. that the turneps there growing might not be trefpaffed upon, or promifcuou fly fed, by the faid flock of fheep or great cattle going at large, but preferved for a crop, for the ufe or difpofal of each refpective owner thereof, fatiffaction being made to the occupier for the time being of the faid Fold Course, for the shackage of the faid turneps; but some difputes having then lately happened, on account of the proportion of fencing materials which ought to be provided by each refpective owner of turneps growing in the faid fields, for inclofing and preferving them in manner above mentioned, tending to defeat the faid practice. In order therefore to remove and prevent all caufes of complaint and diffentions relative to the premises, by fome means that might render the inclofing turneps in the faid field totally unneceflary, and make them and the faid half year clofes and inclosures more useful and convenient to the occupiers thereof, by exempting the whole from the faid flock of fheep and great cattle going at large, and being promifcuously depaftured thereon, during the remainder of the faid leafe; it was agreed by and between the faid plaintiff and defendant and the faid other perfons whofe hands and feals were fubfcribed and fet to the faid indenture, that for the confideration in the faid articles of agreement mentioned, all the faid half year land fo occupied by them, fhould yearly and at all times of the year during the faid term, be exempted freed and difcharged from being fed and depaflured, not only by or with the faid flock of sheep, or any other sheep belonging to the jaid Robert King (the defendant), his executors, adminiftrators, or affigns, but alfe by or with the great cattle going promiscuously or at large: And that the faid half-year land fhould during the faid term, in all respects be confidered and used as whole year land, and be feparately fed and depaftured by the Sheep and great cattle of the respective occupiers thereof, or fuch as they Should take to paure, only. A covenant was next recited, that neither of the parties fhould nor would during the faid term of 12 years, turn any sheep or other cattle loofe into or permit them to go at large in the common fields, or on other half-year lands lying in the parish of Holt aforesaid, but WHITE MAN V. KING, feed and depafture them upon the lands in his or her refpec- 1791. tive occupations only, &c. There was then an averment, that the defendant had not fed or depaftured with fheep, or great cattle, any of the common fields or half-year lands in the faid parish, and that his fheep and great cattle had not gone promifcuoufly over the faid common fields or half-year lands, (except the half-year land of him the said Robert King,) but that the faid Robert King had wholly abstained from feeding or depafturing with sheep, or great cattle, any of the common fields, or half year lands in the faid parifh, except his own half year lands; that the lease granted to Robert King (the defendant) in the said articles of agreement mentioned, and the term of 12 years therein alfo mentioned, were in force and unexpired: that the faid place called Holt-field, in which, &c. whereof the said land of the faid Robert King was parcel, before and at the time of the making of the faid articles of agreement, and also at the faid time when, &c. was and ftill is an open common field in the parish of Holt aforefaid, and the faid land of the faid Robert King parcel, &c. before and at the time of making of the faid articles of agreement, and at the faid time when . was half-year land in the parish of Holt aforesaid, and that at the faid time when, &c. the faid cattle in the faid declaration mentioned were turned loofe and going at large on the faid land of the faid Robert King parcel of the faid common field, &c. contrary to the faid articles of agreement, and the covenant of the said John Whiteman (the plaintiff) &c. &c. To this replication there was a general demurrer, which was argued by Runnington, Serjt. on the part of the plaintiff, as follows: The queftion in this cafe is, whether under all the circumЯtances, the plaintiff can be legally confidered as a trespasser, so that the defendant can justify the taking his cattle as a distress, damage feafant? But this cannot be, fince it is admitted by the pleadings, that both parties had an equal right of common; and it is a clear rule of law, that though a commoner may diftrain the cattle of a stranger damage teafant, yet he cannot thofe of his fellow commoner, for where there is only a colour of right in the cne to put in the cattle, there cannot be a distress taken by the other. Hall v. Harding, 4 Burr. 2426. Atkinson Teafdale, 3 Wilf. 278. 2 Black. 817, but the remedy is by an action on the cafe. Ibid And 1791. And fecondly, the right of the plaintiff was not released by the covenant. No intereft paffes by a bare covenant, Poph. 140. WHITE- Fulcher v. Griffin, where "the parfon of the parifh covenanted MAN ซ. KING. with one of his parishioners that he fhould pay no tithes, for "which the parithioner covenanted to pay to the parfon an an"nual fum of money, and afterwards the tithes not being "paid, the parfon fued him in the Court Chriftian, and "the other prayed a prohibition: and it was agreed that if "no intereft of tithes país, but a bare covenant, then the "party who is fued for the tithes hath no remedy but a "writ of covenant: And the better opinion of the court in "this cafe was, that this was a bare covenant, and that no intereft in the tithes paffed." So aifo in Deux v. Jefferies, Cro. Eliz. 352. "Where to debt on an obligation the defendant "pleaded, that the plaintiff had covenanted that he would not "fue on the bond before Michaelmas, the court held that the "covenant did not enure as a release, and could not be pleaded "in bar, but that the party was put to his writ of covenant, "if the other fued before the time." To the fame effect likewife is Ayliff. v. Scrimshire, ▾ Show. 46 (a). The most that can be contended in the prefent cafe is that the right was fufpended. But if it were fufpended for a moment, it was fo for the whole term. Now as it is a right appurterant to the poffeffion, if the plaintiff had furrendered the leafe to his leffor, and he had made a fresh demife to another tenant, that fubfequent tenant could not be bound to the agreement. It would not even bind the affignee of the plaintiff, notwithstanding the word "affigns" is ufed; for the contract was perfonal. Shep. Touch. 179. But fuppofing the defendant to have been right in confidering the plaintiff as a mere ftranger and a wrong-doer, yet the diftrefs could not be fupported, unlefs exprefsly referved and confented to by all the parties to the deed. Co. Litt. 143. Doct. & Stud. dial. 2. c. 9. So a penalty inflicted by a bye-law may be levied by diftrefs, but only in cafe where fuch remedy is appointed for the recovery thereof, by the power that made the bye-law, and at the time when it was made; because the bye-law binds only the members of that community who make it, and confequently the penalty may be recovered by diftress, (a) But the principle, on which thofe cafes of perfonal contracts were decided, seems to have been, that if the covenant not to sue had been construed to be a temporary release it was a perpetual one, becaufe a perfonal action if once releafed is entirely gone. where |