Where a man hath common of pafture for his cattle and is difturbed by a stranger, he fhall have a quod permittat habere communiam paftura; but where one commoner is disturbed by another commoner who furcharges the common, the writ of admeasurement of pafture lies between them, and the declarations in these two actions muft pursue the writs refpectively. See the writ of quod permittat habere communiam pafturæ, Fitz. N. B. 123 edit. per Raftall, anno 1635. and the declaration, plea and iffue joined thereon. Hern. 641. B. Hill. 13 Jac. Rotulo 685. And for the writ of admeasurement see Fitz. N. B. 125. a. and the declaration thereupon, lib. intrationûm, fol. 104. a. b. Co. Entr. 48. a. pl. 1. Raft. Entr. 23.

These two writs are now out of use, for at this day, actions for furcharging, and disturbances in right of common, are turned into special actions upon the cafe; but ftill the special nature of the cafe ought to be fhewn in the count.

It is objected for the plaintiff, that the defendant may be confidered as a stranger to the plaintiff, and that he is not conusant of the defendant's particular right of common.

In anfwer to this, I apprehend the plaintiff, by declaring in this manner, has undertaken to fhew that the defendant has no right of common at all; it alfo appears from the ftate of the cafe that the plaintiff knew the defendant was a brother commoner, and so must also know the defendant's particular right.

When a commoner diftrains cattle damage feafant on the common, he must know whether they are the cattle of a commoner or a stranger, at his peril, for he cannot diftrain the cattle of a

commoner.

Suppofe an action was brought by one commoner against another, for putting on to the common a certain kind of cattle which he had no right to put on, I apprehend a declaration charging that he wrongfully put on divers cattle, viz. 200 fheep and 200 lambs would be bad; for the Sheep and lambs coming under a videlicet are wholly immaterial. See Hern's Plead. 64. Afhton's Entr. 60. Robin Entr. 42. 1 Mod. Entr. 121. 2 Inflr. Cleric. 241. 2. So that if the action be against a commoner or against the lord, the furcharge must be fhewn. 2 Mod. 6. but against a Stranger it need not be fhewn. See 1 Lutw. 101. 2.

Upon the whole I fubmit it, that if the action be against a commoner, or any perfon having an intereft in the herbage, the declaration muft fhew the furcharge, or the particular injury, or

thing done whereby the plaintiff is hindered of having his common; the right of a commoner to the herbage is as good as the lord's right; the lord cannot inclofe, dig turfs, gravel, foil, &c. without leaving fufficient herbage for the commoners.——I take it upon this principle, if the lord grants me common for 100 beats, if there is not fufficient for him and me he cannot common with me, for it would be contrary to his grant; all commons were originally by grant; the commoner has, at leaft, as good an intereft in the herbage as the lord has, I remember a case at Winchefter afhizes like the prefent against a commoner, where I made the like objection to the declaration as was made at Carlile in this cafe; the plaintiff was nonfuited, and afterwards brought another action and then fhewed the furcharge in his declaration.

Serjeant Glynn in reply-I admit that the words coming under the videlicet are immaterial and mere form; but the charge in the declaration, that the defendant on the 1ft day of January 1768, and on divers other days and times between that day and the day of fuing forth the original writ of the plaintiff, wrong. fully and injuriously eat up, depaftured and spoiled the grafs then growing and being in the faid wafte or common with divers theep and lambs, is material and fubftantial; the defendant might have fhewn his right by evidence at the trial, that he had done no wrong or injury, and that he had only put on fuch cattle, as by law he had a right to put on to the common.

The quod permittat habere communiam paftura is a writ quia timet, and the writ of admeasurement is a pacific writ for afcertaining and fettling the right of common of all the commoners.

Blackstone Juftice-But the writ of fecundâ fuper oneratione is not a pacific writ, for if a man be once admeasured by a writ of admeasurement, and afterwards he furchargeth the common again; then the party who fued the firft writ fhall have a writ de fecundâ fuperoneratione, and fhall recover his damages against him that was defendant in the firft writ, and also he fhall forfeit unto the King the cattle which he put in over and above the due number, after the admeafurement made, by the ftat. Weftm. 2. cap. 8. 13 Ed. 1. Ed. 1. See the writ and count thereupon. Fitz.

N. B. 136.

Serjeant Glynn-I fay the cafe of the lord is very different from that of a commoner, the lord must be prefumed to know his own and his commoner's right beft. Whoever claims a right in the foil of another, has taken upon himself to ftate and prove that right. If the lord pleads the common bar of liberum tene

mentum,

mentum, the plaintiff muft fhew his right in his replication. The cafe of a commoner is different.

Lord Chief Justice De Grey-I think ftill, the declaration is well enough, and that the defendant ought to have come prepared to have proved his right at the trial.

Gould Juftice-I defire we may take time to confider, for the cafe is of great confequence.

Blackflone Juftice-I give no opinion at prefent; there is no cafe in the books determined on either fide; the cafe in Lutw. does not apply to this; it does not fay that it is necessary to lay a furcharge.

Gould Juftice-If you will claim an intereft in the foil of another you must ftate that intereft in pleading; but where the action is not against the owner of the foil, but against a commoner, I think you need not..

Nares Juftice-I cannot think that a commoner is to be confidered as a franger; fuppofe one commoner brings an action against another, for putting on a fpecies of cattle which he has no right to put on, furely it ought to be fhewn in the declaration what those cattle were; I think every gravamen ought to be ftated; the declaration here only fays the defendant put in divers cattle (the videlicet is nothing), the answer is, he had a right to put in divers cattle. I give no opinion.

Blackstone Justice-A commoner cannot diftrain the fupernumerary cattle of a commoner before admeasurement, but he may after; and he may always diftrain the cattle of a franger. This was determined in B. R. while I fat in that court.

The court ordered the cafe to ftand over for judgment until this term, when the Lord Chief Juftice delivered the judgment of the whole court for the plaintiff to the following effect.

Lord Chief Juftice De Grey.

At the trial, the plaintiff proved his right of common as it is Judgment of laid in the declaration, and that the defendant was alfo a com- the court. moner, and had furcharged the common, whereupon, without calling any witneffes for the defendant, it was objected by his counfel, that the plaintiff ought not to recover under this general form of declaring; whereupon a verdict was given for the plain,

Declaration

on his cattle which depaftured the common, per quod, &c.

tiff and damages, fubject to the opinion of this court; whether the plaintiff had a right to recover.

Two things are material to be fhewn in a declaration of this fort. ft, The plaintiff's right of common, and 2dly, The dif turbance of that right by the defendant.

The plaintiff has well and fufficiently fhewn the first, and the queftion now is, whether he has well and fufficiently alledged and pointed out the latter, viz. the difturbance of his right by the defendant; whether he (plaintiff) ought not to have pointed out the particular Specific injury, by thewing how, and by what ways and means, the defendant furcharged the common.

The old books are more explicit touching rights of common than modern books, and what the antient remedies were in all cafes concerning rights of common, furcharging, &c. may be feen in Fleta, lib. 4. c. 25. fol. 26. De Admenfuratione paftura. Bract. 222. Fitz. N. B. Writ of Admeafurement of Paflure. 225, 126.

Inftead of these antient remedies, actions upon the case have been introduced, for recovering damages for obstructing any one in the enjoyment of his common; the commoner must be da maged to intitle him to this action.

In Robert Mary's cafe 9 Rep. 3. 10 Jac. 1. The plaintiff charges, that fhews that he is a copyholder, and that the lord from time wheredefendant put of, &c. for himself and his copyholders hath had common in a certain pafture, and that the defendant on the 1ft of May put in his cattle, which depaftured until Michaelmas, whereby he could not have his common in fo beneficial a manner, &c. defendant pleaded not guilty. The jury found a fpecial verdict, that as to putting in the cattle defendant was not guilty, and as to depafturing the cattle &c. that he was guilty. It was refolved that the action well laid, notwithstanding the declaration be, that the defendant did put in his cattle, which is a mif Verdict finds feafance, and the jury find that he did not put in his cattle, but that he did depafture them &c. and they might get in by escape which is a nonfeafance (as it was objected) which is contrary to the declaration and against the plaintiff. But refolved, the depafturing whereby the common is deftroyed is found, which is the fubftance; and the plaintiff is a ftranger, and it is not ma terial how the cattle came in, and the judges, in verdicts regard the fubftance and not the circumftance. It was refolved 2dly, That the action lies for one commoner alone, for he may diftrain the cattle of a stranger damage feafant; and if he hath a free

he did not

put on, but that he depastured.

Refolved the fubftance of

the charge is found.

hold

hold in his common, and the lord or others will depafture or confume all the herbage in the land where the common is to be taken, the commoner fhall have an affize; and by confequence the commoner in that cafe, having common but at will, by copy, fhall have an action upon the cafe. In Trin. 41 Eliz. C. B. rotulo 1536. Holland a commoner had the like judgment in an action upon the cafe. And in Hil. 5 Jac. C. B. rotulo 1427, Ingland a commoner had the like judgment, where the verdict was found as in Mary's cafe, and that the cattle efcaped, the defendant pretending to have common pour caufe de vicinage.

A commoner must be damaged to entitle him to an action; the injury may be done by the lord, by a franger, or by a com

moner.

does not leave

may break

The lord may approve against a tenant that hath common of If the lord inpafture, as often as he pleafes; fo that he leave fufficient common, clofes and but if he doth inclofe any part, and leave not fufficient com- fufficient mon in the refidue, the commoner may break down the in- common, the closure, because it standeth upon the ground which is his com- commoners mon. If the owner of the foil ploweth up the land, the com- down the inmoner fhall have an action upon the cafe in the nature of a quod cloture, permittat; a commoner may have an action upon the cafe or an and may have" affize against the owner of the land, for putting on more cattle action against than he ought to put on, and thereby not leaving fufficient com- the lord. mon for the cattle of the commoner, 2 Leon. 201, 202, 203. And the lord may be ftinted by cuftom in his own foil, and a comdiftrain the cattle of the lord by cuftom, Yelu. 129. or he may have an affize of common against the lord. F. N. B. 125. 2 Inft. 85.

moner may

The quod permittat de communia paftura is a writ of right. Booth's real actions 238. it is in the nature of a writ of entry fur diffeifin done to the ancestor of the plaintiff. Regift. 155. b. And in declaring upon this writ the plaintiff only fhews his own right, but does not flate the defendant's ground or pretence of interruption of the plaintiff in his right, as appears in Raft. Entr. 539. a. pl. 4. and fee F. N. B. 123.

the owner of

Smith verfus Feverel, 2 Mod. 6. The plaintiff brought an If a ftranger action on the cafe against the defendant, fetting forth, that he puts on cattle had a right of common in A. and that the defendant put in his by cattle, viz. horfes, cows, hogs, &c. ita quod communiam in tam the foil, he amplo modo habere non potuit. The defendant pleads a licence from muft plead the lord of the foil to put in averia fua, which was agreed to com- fufficient left prehend hogs as well as other cattle, in the most general fenfe. for the com The plaintiff demurs; and, after argument, the court were all of moners. Vol. III.

U

opinion,

there was