Replication, that the defendant, at the said several times when &c., ought not to have had and enjoyed common of pasture for his said cattle levant and couchant, within the said town and borough of Holt, at his free will and pleasure, in, upon, and throughout the said lands called Common Wood, modo et formâ, &c.; upon which issue was joined.

At the trial, before Maule, J., at the Denbighshire Summer Assizes, 1849, the plaintiff's counsel proposed to give evidence of certain proceedings under the General Inclosure Act, 8 & 9 Vict. c. 118, by which it was submitted the right of common had been extinguished. This evidence was objected to on the part of the defendant, but admitted by the learned Judge, subject to the opinion of the Court. Upon the evidence, his Lordship thought that there was no extinguishment of the right of common, because it came within the exception of the 12th section, it not being a stinted common. A verdict was found for the plaintiff on the first and second issues, and for the defendant on the third.

Welsby, in the following Michaelmas Term, obtained a rule nisi for a new trial, on the ground of misdirection, or for judgment non obstante veredicto on the third plea; and a cross rule was obtained, to enter a verdict for the defendant on the ground of the improper reception of the evidence; which rules were argued (February 14) by

Martin, Townsend, and E. Bevan, for the defendant.First, under this replication, which improperly traverses matter of law, the plaintiff was not entitled to give in evidence new affirmative matter, shewing that the right of common was extinguished. The only point in issue was, whether the defendant, as such burgess, had a right of common of pasture for his cattle levant and couchant; and if the plaintiff relied upon the fact of the grant having ceased to operate, he should have replied specially, shewing in what way it was put an end to.

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PARRY

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Secondly, The plea is good. It contains the words for want of which the plea in Mellor v. Spateman (a) was held bad. [Parke, B.-There the prescription was by the burgesses "for themselves and every burgess of the borough."] Here the grant is to the burgesses "and their tenants," which shews that it was intended to be a personal benefit to the burgesses, and not merely to them in their corporate capacity (b).

Welsby and Foulkes, for the plaintiff.-Under the traverse taken by the replication, it was competent for the plaintiff to give in evidence facts shewing that the right of common was extinguished. Courts of justice discourage unnecessary prolixities in pleading: 1 Wms. Saund. 103 c., n. 3. Perhaps the replication might have been bad on special demurrer, as an argumentative traverse of the title alleged in the plea; but the defendant having joined issue upon it, if any one step in the title be disproved by the plaintiff's evidence, the whole must fail. A prescription, which is only a grant before the time of legal memory, may be traversed by the general replication; so also a prescriptive claim under the 2 & 3 Will. 4, c. 71. [Parke, B.-How do you distinguish this case from that of The Bishop of Meath v. The Marquis of Winchester (c)?] That was a quare impedit, in which the plaintiff, after tracing his title through various steps, alleged that he thereby became possessed of the advowson, and the defendant, under a denial of the plaintiff's possession, sought to give in evidence mere collateral matter, viz. a fine of the advowson levied by one whose estate the plaintiff had.

Then, with respect to the plea-it is bad for not shew

(a) 1 Saund. 343.

(b) They also argued that the right of common was not extinguished by the proceedings under the 8 & 9 Vict. c. 118, inasmuch

as the case fell within the 12th section; but, as the Court gave no opinion on that point, the arguments are omitted.

(c) 3 Bing. N. C. 183.

ing that the individual burgesses were entitled to the right of common under that grant to the Corporation. It should have been pleaded as a grant to the Corporation, by name, for the benefit of the burgesses, and still subsisting in the burgesses; in which case, according to the authority of Mellor v. Spateman, it might have been enjoyed by the burgesses in their individual capacity. A corporation aggregate cannot take lands by their corporate name to them and their heirs, but only to them and their successors. Com. Dig. "Franchises," (F 16) n. (); Co. Litt. 94. b. The plea is inconsistent and repugnant; it first alleges a grant which could only be enjoyed by the Corporation in their corporate capacity, and it then states that the right is to be enjoyed by burgesses individually.

Cur. adv. vult.

PARKE, B., now said (after stating the pleadings):-Upon the issue on the third plea, it was proposed by the plaintiff to shew (and the point was reserved for the consideration of the Court), that the right of common had ceased by reason of an inclosure, made by the inclosure commissioners under the 8 & 9 Vict. c. 118. We yesterday intimated an opinion, that that question was not admissible under this replication, which only puts in issue the fact of the defendant having a right of common in the manner described in the plea; that this being a claim by grant, and not by prescription, the plaintiff ought to have shewn in what way that grant had ceased to operate, by replying, that it had been put an end to by the act of the commissioners, under the 8 & 9 Vict. c 118. Consequently, as the evidence was inadmissible, it becomes necessary for us to consider whether the commissioners had power or not under that statute to inclose this common, it being alleged that it was not a stinted common, in which case only the commissioners had power.

Then a motion was made for judgment non obstante

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veredicto, on the ground that it does not appear by the plea that the defendant had any right of common, inasmuch as the grant was to the Corporation, and not to the individual burgesses constituting the Corporation. Now, that is somewhat obscure, from the allegation that the grant was made "to the burgesses of the town of Holt, their English heirs and successors" (which are words not very intelligible), "for all their cattle levant and couchant in the said town of Holt." The question is, whether upon that allegation we can see that the meaning of the plea is, that the grant was made to the Corporation of Holt, for the benefit of the individual burgesses, or whether it was simply a grant of an incorporeal hereditament to the Corporation, as a corporation. We cannot come to the conclusion that the former is the meaning of the grant. It is very probable, looking at the peculiar terms of this grant, and considering also the fact of enjoyment, shewn by the evidence, that if the defendant had pleaded this as a grant made to the burgesses in their corporate character, for the use of the burgesses of the borough, such a plea would have been supported. In Mellor v. Spateman, it was averred that the Corporation of Derby time out of mind had been used and accustomed to enjoy the right of common for their burgesses, the several burgesses of the borough. So here, if the averment had been that Lord Arundel granted rights of common to the burgesses of the borough of Holt, for the burgesses and their tenants, the defendant being a burgess, the plea would have been good; and I think that if they had so pleaded it, the evidence would have supported that allegation. We cannot collect upon the face of this plea, that this was a grant to any body but the Corporation, so that they might have granted the right of common to some one else, and were not bound to hold it for the burgesses. Therefore, the plea is bad, and the plaintiff is entitled to judgment non obstante veredicto.

Judgment for the plaintiff.

1850.

BUCKLEY V. HANN.

THIS was a rule calling on the plaintiff to shew cause why a suggestion should not be entered on the roll, to deprive the plaintiff of costs, under the London Small Debts Act, 10 & 11 Vict. c. lxxi (a).

It appeared from the affidavits, that the action was by the indorsee against the acceptor of a bill of exchange, drawn by one E. Wood, and by him indorsed to the plaintiff, and was tried before the Secondary of London, under a writ of trial, when a verdict was found for the plaintiff