Mod. 418. which was an action of the cafe fetting forth that he was poffeffed of a tenement and of a close of pasture, and a rood of land, &c. in Shipton Mallet, and that he had right of common in Mendip foreft for his cattle, &c. as thereunto belonging, that the defendant did dig and make coney-boroughs in the faid foreft, and fet nets and gins there by which his fheep were damnified, and he deprived of common, &c.; upon a writ of error brought in B. R. the question was, whether the declaration was good or not? because it fets forth that the plaintiff legitimê pofJeffonatus fuit de tenemento, &c. which [it was objected] was not fufficient to intitle him to his action, but that he ought to fhew a title by custom or prefcription or otherwife, and not declare. upon the bare poffeffion without any other right; for he claiming a profit arifing out of another man's foil, ought to have fet forth a particular estate to himself, either by grant, prefcription or fome conveyance, and not to fay that he was poffefed,* &c. and ought to have common, &c. as belonging to his tenements, without fhewing how, or in what manner, which is so uncertain that no iffue can be taken upon it; therefore [it was faid] the plaintiff ought to have fhewn the commencement of his eftate, and how he came to be intitled to the common, which muft [in this cafe] be either appendant, or nothing, and if so, he must fet forth the beginning of it, that the defendant might give him an answer.--But after much argument and debate upon the matter the declaration was adjudged to be good, and that the plaintiff need not fet forth his title, either by prescription or grant. 1. Because it is an action grounded upon the poffeffion against a wrong doer; to which action, a title would be only an inducement. 2. That he need not fet out any title whatsoever, because (as to the defendant who did the injury) it ftands indifferent, whether plaintiff is owner of the foil or not; the defendant's bufinefs is to answer the wrong alleged to be done by him. It is true if it had been upon fpecial pleading, as in trefpafs for diftraining his cattle, and the defendant had pleaded that he was owner of the foil, and fo juftified the taking, the plaintiff in fuch cafe muft have replied and fhewn a title by grant or prefcription or fome other conveyence.--And lastly, [they refolved] that this matter is not traverfable; for, upon the general iffue a right of common must be proved and given in evidence, otherwise the plaintiff cannot maintain his action, but what right is not material, and fo the judgment of the C. B. was affirmed, and [as the report fays] the law fettled in this point.

Dorney verfus Cafhford, 1 Ld. Raym. 266. (cited for the defendant) was cafe for obftructing a private way. The plaintiff declared that he was poffeffed for a term of years of a house, and that he and all those whofe eftate he had in the house from

have had and enjoyed the fame, but during all that time was deprived of great part of the profit and benefit thereof. (There was another count in trover for two waggon loads of rufhes) which the plaintiff lays to his damage.

The defendant pleaded not guilty; iffue being joined thereon, the fame was tried at the last affizes for the county of Norfolk, when a verdict was found for the plaintiff, and general damages given upon both the counts in the declaration.

Serjeant Sayer moved in arrest of judgment, and took several exceptions to the declaration. ft, That a cuftom to take a profit in the foil of another is bad, and to prove this he cited Gatewood's cafe, 6 Rep. 59. b. where it is refolved, that a custom for the inhabitants in a vill within any ancient meffuage there to have common of pafture, is bad. To which it was answered for the plaintiff, that Gatewood's cafe does not apply to the cafe at bar, for it does not prove that an occupier of land may not have common in the foil of another, and may also by cuflom have a right to cut down and take rushes for litter for his cattle levant and couchant on his land. And to fhew that a custom to take a profit in the foil of another is good was cited for the plaintiff, 3 Lev. 160. The Mayor and Commonalty of Lynn Regis verfus Taylor, where it was refolved by the whole court, that a custom for freemen of Lynn, being owners or mafters of ships, to dig for ballaft in the foil of the Mayor and Burgeffes of Lynn is good, although fuch freemen and mafters of fhips are not incorporated, or members of the corporation, and Gatewood's cafe was there cited to fhew the custom was bad; fo a custom to dry nets upon another's foil is good; alfo a cuftom of the Hundred of Wirksworth in Derbyshire to dig for lead in another's foil is good, which is certainly to take a profit in another's foil.—It is a good custom, that when a man hath agifted his cattle in my park, in the time of a great fnow, for neceffity to cut the branches of the oaks for them. 1 Roll. Abr. 560. pl. 12.-The court over-ruled this objection.

2. It was objected by Serjeant Sayer, that the title to the common is ill fet out in the declaration, for it only alleges that the plaintiff was poffed of a meffuage and lands, and by reafon thereof, he, of right, had and ought to have common, &c. and cited 1 Ld. Raym. 266. Dorney verfus Cafhford. To which it was anfwered for the plaintiff, that this is an action for a tort against a ftranger, a mere wrong-doer, and it is fufficient for the plaintiff to allege that he is poffeffed, &c. he need not fet out any title whatfoever, and this hath been the conftant and uniform way of declaring in actions for difturbances of common and fimilar wrongs ever fince the cafe of Strode verfus Byrt. 4

Mod

Mod. 418. which was an action of the cafe fetting forth that he was poffeffed of a tenement and of a close of pasture, and a rood of land, &c. in Shipton Mallet, and that he had right of common in Mendip foreft for his cattle, &c. as thereunto belonging, that the defendant did dig and make coney-boroughs in the faid foreft, and fet nets and gins there by which his fheep were damnified, and he deprived of common, &c.; upon a writ of error brought in B. R. the queftion was, whether the declaration was good or not? because it sets forth that the plaintiff legitimê pofJehonatus fuit de tenemento, &c. which [it was objected] was not fufficient to intitle him to his action, but that he ought to fhew a title by custom or prescription or otherwise, and not declare. upon the bare poffeffion without any other right; for he claiming a profit arifing out of another man's foil, ought to have fet forth a particular eftate to himself, either by grant, prefcription or fome conveyance, and not to say that he was poffeffed, &c. and ought to have common, &c. as belonging to his tenements, without fhewing how, or in what manner, which is fo uncertain that no iffue can be taken upon it; therefore [it was faid] the plaintiff ought to have fhewn the commencement of his eftate, and how he came to be intitled to the common, which muft [in this cafe] be either appendant, or nothing, and if fo, he muft fet forth the beginning of it, that the defendant might give him an answer.--But after much argument and debate upon the matter the declaration was adjudged to be good, and that the plaintiff need not fet forth his title, either by prefcription or grant. 1. Because it is an action grounded upon the poffeffion against a wrong doer; to which action, a title would be only an inducement. 2. That he need not fet out any title whatfoever, because (as to the defendant who did the injury) it stands indifferent, whether plaintiff is owner of the foil or not; the defendant's business is to answer the wrong alleged to be done by him. It is true if it had been upon fpecial pleading, as in trefpafs for diftraining his cattle, and the defendant had pleaded that he was owner of the foil, and fo juftified the taking, the plaintiff in fuch cafe muft have replied and fhewn a title by grant or prefcription or fome other conveyence. And lastly, [they refolved] that this matter is not traverfable; for, upon the general iffue a right of common must be proved and given in evidence, otherwise the plaintiff cannot maintain his action, but what right is not material, and fo the judgment of the C. B. was affirmed, and [as the report fays] the law fettled in this point.

Dorney verfus Cafhford, 1 Ld. Raym. 266. (cited for the defendant) was cafe for obftructing a private way. The plaintiff declared that he was poffeffed for a term of years of a houfe, and that he and all those whofe eftate he had in the house

from

from time whereof, &c. habuerunt & habere debuerunt a way &c. that the defendant obftructed, &c. upon the general iffue pleaded, verdict for the plaintiff. But after divers motions in arreft of judgment; by the whole court judgment was arrested. For though it had been good to declare against a wrong-doer that he [plaintiff] habere debuit viam, &c. as was lately adjudged in C. B. in Strode verfus Birch, yet here the plaintiff has laid a que eftate in himself, when he is but leffee for years. which is impoffible, for he cannot have the eftate of any other but only his own. To which it was anfwered, that the plaintiff Dorney had no occafion to fet out any title whatsoever, but [as the cafe fays] it had been good to declare againft a wrongdoer, that the plaintiff Dorney habere debuit viam, &c. but having taken upon himself in pleading to fet out a title, and having fet out a bad one, it fhall be taken moft ftrongly against him.-But in the cafe at bar, the plaintiff hath not fet out any title whatever; poffeffion being fufficient against a wrong-doer. And of that opinion was the whole court.

Serjeant Sayer 3dly objected-That it appeared by the decla ration that the plaintiff claimed the right to cut and take the rufhes on the wafte for litter for his cattle, as a right appendant to his right of common, which cannot be in their nature and quality; for a thing incorporeal cannot be appendant to a thing incorporeal, and both thefe rights are incorporeal, and cited Tyrringham's cafe, 4 Rep. 36. b.To which it was answered that the right to cut and take rushes, &c. is not claimed or alleged to be appendant to the right of common, but it is alleged to be a part of, or as a circumftance of the plaintiff's right of common, and is a very reasonable and useful part thereof, and of that opinion was the whole court.

Serjeant Sayer 4thly objected to duplicity in the firft count, which (he faid) confifted of a claim of two diftinct and several rights, viz. a right of common, which doth not lie in prendre. for the plaintiff cannot cut and take away the grass from off the common, but can only feed and take it by the mouths of his cattle; and a right to cut and take away rushes, which lies wholly in prendre, cannot be joined in the fame count with the right of common, which doth not lie in prendre. To which the like anfwer was given as to the 3d objection, viz. That the right to cut and take the rufhes is only a circumftance attending, or part of the right of common, and that both together may be reasonably taken and confidered as one united right, for the cuftom is, that whoever occupies land in the parish of Ludham, and has a right of common in the wafte, has also a right to cut and take rushes there, he cannot have one without the other;

according

according to the custom laid in the declaration, and found to be true by the verdict. And of that opinion was the whole

court.

Serjeant Sayer upon his first moving this cafe alfo objectedThat the latter count in trover could not be joined; but now, upon fhewing caufe he candidly gave up this objection; the very fame having been made and over-ruled in Maft verfus Good. fon, in Mich. term laft, ante, fol. 348. Serjeant Wilfon (who drew the declaration) was of the plaintiff's counfel.

Judgment for the plaintiff, per totam curiam.

Mary Leader widow verfus William Moxton, Richard 2 Black. Rep. Barwife and Thomas Taylor. C. B.

924. S. C.

law and rea

viors for

plaintiff's

ACTION of trefpafs upon the cafe, wherein the plaintiff [Commiffiondeclares, That long before and at the feveral times of com- ers for paving mitting the feveral grievances next herein-after-mentioned,- fhe have not an arbitrary dif was, and from thenceforth hitherto hath been, and ftill is feifed cretion: but in her demefne as of freehold, that is to fay, for and during the limited by term of her natural life, if the continues fole and unmarried, fon.] of and in divers, (to wit) fix meffuages or dwelling-houfes with Special action the appurtenances, fituate, ftanding and being in a certain ftreet upon the cafe or lane called Old Gravel-lane, on the eaft fide of the faid ftreet against pain the parish of Saint George in the County of Middlefex, and raising the which faid feveral meffuages and dwelling-houses, at the afore- freet in the faid times of committing the faid refpective grievances herein- front of the after-mentioned, were in the poffeffion of certain tenants thereof houfes in respectively to the plaintiff, that is to fay, one of the fa'd mef. Gravel-lane, fuages or dwelling-houfes then was in the poffeffion of one by which the paffage, and William Tucker as tenant to the faid plaintiff, another thereof was lights to the then in poffeffion of one John Duncan, as tenant to the faid houfes were plaintiff, another thereof then was in the poffeffion of one Wilkam Sparks, as tenant to the plaintiff, another thereof then was in the poffeffion of one Alexander Grieve as tenant thereof to the plaintiff, another thereof then was in the poffeffion of one James Smith as tenant thereof to the plaintiff, and the remaining one then was in the poffeffion of one John Beefwank as tenant to the plaintiff; all which faid feveral meffuages or dwelling-houfes then refpectively fronted, and each of them did and doth front the faid ftreet called Old Gravel-lane, and each of them then. had, and ftill of right ought to have a door and paffage from the ground-floor thereof refpectively in the faid ftreet, and alfo certain lights and windows placed in the ground-floor of all the

obstructed.