The breach of the byelaw by the plaintiff,

The bye-law. faid jury did then and there order, that no person or perfons Should depafture any fheep, horfes, cattle or any other beast whatJoever, on Winterbourn Down, otherwife Winterbourn Common, or any other common belonging to the tything of Winterbourn within the faid manor, from Saint Thomas's day to Lady-day, yearly in every year, from thenceforth for ever thereafter, on pain of forfeiting twenty fhillings for every fheep, beast, or any other cattle, of what nature or kind foever, which should be depaftured thereon contrary to the faid bye-law, AND ALL FOR MER BYE-LAWS; of which faid bye-law the plaintiff Gerrish afterwards, (to wit) the fame day and year, at Winterbourn, had notice. And the defendant further fhews, that after the making the faid bye-law, and between Saint Thomas's day and Lady-day, and a little before the faid time when, &c. (that is to fay) the faid thirty-first day of January 1769, at Winterbourn, the plaintiff did put the cattle in the de claration mentioned, into the faid common, called Winterbourn Down, otherwife Winterbourn Common, the fame then being a common belonging to the faid tything of Winterbourn within the faid manor, to depafture there, whereby the faid penalty or forfeiture of twenty fallings for each beaft fo depastured by the plaintiff, on the faid place in which, &c. amounting in the whole to the fum of thirty-five pounds, then and there accrued, and became forfeited, due and payable, to the faid John Withers Sherwood, then lord of the faid manor, for breach of the bye-law aforefaid; and the faid penalty or forfeiture being fo forfeited, due and payable, and remaining unpaid, the faid plaintiff afterwards, (to wit) on the fame day and year in the declaration mentioned, at Winterbourn aforefaid, was requefted by the faid John Withers Sherwood to pay the fame; but the plaintiff then and there wholly refufed to pay the fame; and because the fum of 35/. at the faid time when, &c. was in arrear and unpaid, he the laid defendant, as bailiff of the faid John Withers Sherwood, well acknowledges the taking of the faid cattle in the place in which, &c. being within the manor, and juftly, &c. for and in the name of a diftrefs, for the penalty or forfeiture fo due and in arrear as aforefaid; and this the defendant is ready to verify: wherefore he prays judgment, and a return of the faid cattle, together with his damages, cofts and charges, according to the form of the ftatute in that cafe made and provided, to be adjudged to him, &c.

28 Cogni

zange.

The fecond cognizance made by the defendant is nearly verba tim the fame with the firft, and is variant in a few words only, (that is to fay) when the defendant in his fecond cognizance fhews the cuftom of the leet to make bye-laws, he pleads thus :-That within the manor, there is, and from time whereof, &c. hath

been

been an ancient custom there ufed, (that is to fay) that the jury of the faid court leet, from time to time for and during all the time aforefaid, have been used and accustomed, at the fame court, by and with the confent of the greater part of the commoners having right of common on the waftes of the faid manor, prefent at fuch court leet, to make reafonable bye-laws, &c.And when the defendant goes on in his fecond cognizance to fhew the making the bye-law, he alledges, that the fame was made by and with the confent of the greater part of the commoners, then having right of common upon the waftes of the faid manor, who were prefent at the fame court leet, &c. whereas, in the firft cognizance nothing is faid about the commoners being prefent at the court leet,

The third cognizance made by the defendant, only varies 3d Cognifrom the first and fecond in this, viz. that in fhewing the cuf. zance. tom of the leet to make bye-laws, and the fact of making the prefent bye-law in queftion, this cognizance is filent as to the confent of the major part of the commoners to the making byelaws, and alfo is filent as to their being present at the leet when fuch bye-laws are made, and is general, viz. that the jury of. the leet make the bye-laws, not making mention of the commoners confent or prefence.

To each of thefe cognizances the plaintiff hath demurred Demurrer. generally, and the defendant hath joined in demurrer.

In this term the caufe was argued by Serjeant Jephfon for the plaintiff, and Serjeant Glynn for the defendant.

Serjeant Jephfon made the following objections to the cognizances;-

the cogni

zances.

ift. The custom alledged, is, for the jury of the leet to make Objections to bye-laws, and to impofe penalties for the breach thereof on any farmer or tenant of the manor; but the bye-law made in the prefent cafe is not confined to the farmers or tenants of the manor, but is general, viz. "That no perfon or perfons fhall depafture, &c." therefore the bye-law is not warranted by the cuftom.

ad Objection. It is not fhewn that the plaintiff at the time when, &c. was a farmer or tenant of the manor, or of any lands within the manor; which ought to be fhewn, to bring him within the custom, and fubject him to the penalty for breach of the bye-law; this is very material; because, for any thing that appears to the court to the contrary, the plaintiff might be a tref

M4

a refputer upon the common, or might have, or claim to have, a right of common in the place in which, &c. as belonging to lands lying out of the manor.

34 Objection. The custom ftated is to make reasonable bye. laws and ordinances, and to impofe reafonable penalties on fuch farmers and tenants of the manor who fhould infringe or break fuch bye-laws: but here is no averment that the bye-law in quef tion is reafonable, or that the penalty for the breach thereof is reafonable, fo that the plaintiff could not take an ifflue to try the refonableness thereof; twenty fhillings is the value of a theep, and therefore feems to be an unreafonable penalty for depafturing every fheep contrary to the bye-law, and therefore it is moft necellary to alledge that the bye-law is reasonable; befides, the penalty is for acting contrary to this and all former bye-law's: without flating what thofe former bye-laws are.

4th Objection. It is not ftated that the plaintiff was a refiant within the manor, which ought to have been stated; for the jury is compofed of the refiants; and if the plaintiff was not vefant, he was not bound to attend the leet, nor could he be called thither by any procefs of the court; therefore the byelae was made in his abfence, and it cannot be prefumed that he had any opportunity of knowing this bye-law, or of objecting to the making thereof.

5th Objection. The custom alledged is, to diftrain the beasts and cattle of fuch tenant or farmer, for the penalties incurred for the breach of the bye-law in any place within the manor; this is waiva Orable; the custom ought to be, to take a reafon. the wings, or at leaft to have been confined to distrain the lex caird on the common, and not all his beafts and cattle in wey go within the manor; for, by this cuflem, it feems that all the Cottle of a tenant or farmer offending against the bye-law, may bed da sod in any place within the manor.

It is not fated that there has been any premade of this offence, and it is very hard, and improper, Pare bed Meld delay without a previous prefentment of A deaghn the books, as to this matter, the may marka0) preiemoment be traveriable, but not

-Tos that the frame have no power, even by cyftom,

which is the proper court for the civil business of the manor.→ In the cafe of Wells verfus Cotterel, 3 Lev. 48, in replevin, it was held a bad cufom, for the feward of the manor, with the content of the homage, to make bye-laws, and impofe penalties for good government within the manor, to be forfeited to the lord of the manor, and to diftrain for fuch penalties; for such bye-laws ought to be made by the homage only.

8th Objection. If the confent of the commoners be necellary for making bye-laws, it ought to be stated that those commoners were refiants, because otherwife they are not bound to attend the lect; and no law can bind them, if abfent, and not bound to attend, Refiancy only obliges attendance at the court leet; but all the tenants of the manor muft attend the court baron, whether they be refiants or not; and the right of common is in refpect of lands, and not of refancy,

9th Objection. It is not ftated in the third cognizance, that the prefence or confent of the commoners to the making the bye-law was necessary.

Serjeant Glynn for the defendant, in answer to the feveral objections taken by Serjeant Jephfon to the cognizances, fpoke to the following effect, viz.

It is objected by my brother Jephson, that the bye-law is not warranted by the custom; for the custom is to make bye-laws obligatory on the farmers and tenants of the manor only, and that the bye-law, in the prefent cafe, is general, and not confined to the farmers and tenants of the manor, but extends to all perfons whatsoever. In anfwer to this, I fumbit it; there is no mate. rial variance between the custom ftated, and the bye-law made in purfuance of the cuftom; the law is only to bind the owners and tenants of lands in the manor; it doth not affect to bind strangers; the bye-law is general, but who will be bound by it? only thofe that are subject to it; namely, the owners and occupiers of land within the manor; for if a stranger was to put his cattle on the common within the time prohibited, he would not be the object of the bye-law.

It does not lie in the plaintiff's mouth to fay he is a trefpaffer, but the court will take it, that he put in his theep under a right and claim of common; and though there may be a cafe where a man may have a right of common, in refpect of lands, in a place out of the manor, yet the court will not prefume or intend fuch a right, without it be specially pleaded and fet forth; but

the

the court will intend this to be the common law right of

common.

As to the objection, that there is no averment that the bye. law and penalty for breach thereof are reasonable; I anfwer that fuch an averment is not neceffary; for if (in fact) it be unreasonable, then it is void but by making the law, it does, in effect, fay that it is reafonable; becaufe if it be unreafonable it is no law; it is of the effence of a bye-law that it be reafonable; it need not be expreffed to be fo, and it is fully open to the plaintiff to put the reasonableness thereof, and of the penalty, in iffue.

As to the objection, that it is not flated, that the plaintiff was refiant in the manor, it is not material; and my anfwer to the last objection, will be a direct answer to this.

And as to the offence being contrary to former bye-laws as well as this, it is fufficient that it is contrary to this; but there is no obfcurity, what the former bye-laws are; they muft necef farily be fuch as prohibit the depafturing of cattle on the common, within the time prohibited by the present bye-law.-The words "all former bye-laws," are furplufage, and may be left out; the prefent bye-law is good, independent of the former bye, laws; as to the magnitude of the penalty, and diftraining all the cattle, the law will reduce it to a reasonable diftrefs, the prin ciple of law will fupply the cure.

As to the objection concerning a prefentment of the offence. being neceflary, previous to the diftraining for the penalty; I anfwer, that a prefentiment, in this cafe, is mere matter of information and intruction, is unneceffary, and does not give the right to diftrain; but where the be-las provides that there fhall be a previons prefinement, then it is matter of title, and necessary; but the Ave-law is good without fach provision.

As to the objeftion against the power of the court lett to make fuch a Ive law, I admit, that, of common right, they have no fich parikhon to interfere, or make he-laws concerning the regulation or right of commen; but vet, by człem, such a power may be in the lot; the ont les perhaps may be coeval with the manos, the "fants perhaps were the commoners when the Jay wax fid granted; and where is the abfurdity, to suppose, that at the original infitation of the court heet, à power might de goven to the lord and for a the leg, to regulate the right of Comumos nochin the manor. The commoners in general muft de at the uses as ademts,, der mit be there, therefore muft Noe paramod to be there, and to be bound by the laws made there.—

As