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The Solicitors' Journal.

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The Mastek Op The Rolls has signified that the form of order for production of documents in cases in his chambers is, in accordance with the Judicature Act, to provide that the person desiring inspection of documents, who wishes also to take copies and extracts, shall do so "at his own expense." This is a return to the old practice in this respect before the Judicature Acts, which baa since been Taxied by the chief clerks. A reference to form H. 16, in the schedule to the Rules of April, 1880, will show that the form of order to produce documents for inspection in use in the Central Office is framed in accordance with the direction now given by the Master of the Rolls.

Cosbidebahle Inconvenience has been caused to the jndges of the Court of Appeal by the non-delivery of sets of papers on the hearing of appeals. Order 36, rule 17a, provides that the party entering an action for trial shall deliver to the officer two copies of

the whole of the pleadings. This rule works well, and the duty prescribed is rarely omitted. But no similar provision exists as to the Court of Appeal, and it often happens that the parties are not prepared at the hearing of an appeal to furnish the requisite papers. Not unfrequently the only copy of the order appealed from ia contained in counsel's brief. Until some rule is made requiring papers to be furnished on setting down appeals, the appellant's solicitor should be careful to have them in court at the hearing. Three sets of papers should be provided for the use of the judges, and one set for the use of the officer attending the court.

It Is Understood that at the meetings of the Council of Judges on Saturday and Monday last the proposals of the Lord Chancellor for the merging of the Queen's Bench, Common Pleas, and Exchequer Divisions into a single Division, and the abolition of the offices of Chief Justice of the Common Pleas and Chief Baron of the Exchequer, were accepted by a large majority. Full effect cannot be given to these recommendations without an Act of Parliament, and this necessary delay will give the opportunity, and we trust will suggest the propriety, of making some further alteration in the cpnduct of business. Some alteration is obviously necessary, for the foundation on which the present divisional courts rest is itself removed when the Divisions are abolished. The reconstitution of divisional courts for general business may perhaps be found no more rational or convenient than was the creation of the short-lived divisional court at Lincoln's Inn for the hearing of county court appeals. The abolition of divisional courts would no doubt necessitate some addition to the business of the Court of Appeal, and probably some alteration in the conduct of business before the judge in chambers; but such changes would be well repaid by the simplicity and order which would take the place of the present confusion and uncertainty.

The Council of the Incorporated Law Society have resolved upon the following suggestions as to the present law of bankruptcy, and the alterations and amendments which should be made therein:—" It is desirable that when a person becomes insolvent, there should be one uniform mode of proceeding—viz., by bankruptcy. Proceedings in bankruptcy ought to be commenced by a debtor by petition, accompanied by an account of his assets and debts, verified by affidavit; or by a creditor by petition, with proof of debt, and that the debtor has failed to pay the same within fourteen days after demand, or has committed some other act of bankruptcy; and the filing of any such petition should be a stay of all proceedings against the debtor unless and until the court shall otherwise direct. On a debtor being declared bankrupt, or previously, after petition, if the court shall so order, his estate ought at once to be taken possession of by a receiver appointed by the court, until the appointment of a trustee. Trustees ought to give security in all cases, whether or not this be required by the creditors, but the court should have power to regulate the amount of the security, cr to dispense with it altogether. Such remuneration only ought to be paid to trustees as is allowed by general or particular order of the court. Trustees ought to render accounts to a proper officer of the Court of Bankruptcy, and pay their balances into court, as is now done by receivers in chancery, under a penalty for neglect. Any creditor ought to be able, at his own expense, by leave of the court, to I Bummon the bankrupt before the court, and to examine him as to his assets, debts, and dealings, and also to examine his books and accounts. The holders of bills of exchange, drawn or indorsed by the bankrupt, ought to be treated, for the purpose of voting, as secured creditors. A bankrupt should remain liable for his debts until the Court of Bankruptcy, after hearing the creditors in open court, has given a discharge; such discharge not to be granted unless a dividend of at least five shillings in the pound has been declared, or unless it is proved to the satisfaction of the court that the bankruptcy has been occasioned by misfortune or accident; and such discharge not in any case to bo granted if the court shall find that the bankrupt has been guilty of overtrading or reckless speculation, or of conduct of a fraudulent character, or that he has not kept proper books, or has not made a complete surrender of his estate, or has not given full information relating thereto. The 125th and 126th sections of the Bankruptcy Act, 1869, as to liquidation by arrangement and composition, should be repealed, and all such arrangements ought to have the sanction of the Court of Bankruptcy, after full disclosure and examination of the bankrupt. As in the Probate and Divorce Court, a judge ought to be appointed to give his whole time to bankruptcy and the hearing of all important matters, and appeals from the registrars and county court judges; and the Court of Bankruptcy ought to form a Division of the High Court of Jnstice. In country cases, applications for discharge ami for allowance of arrangement, composition, or liquidation, at all events, and any other proceedings, if required by a creditor, should be heard by the county court judge himself. Subject to the foregoing resolutions, and to modification of some details, legislation in accordance with the report of the Select Committee of the House of Commons appointed in the last session of Parliament is desirable."

Those Who Are Curious to see how little connection in a mind professing logical accuracy the premisses may have with the conclusion, may find in the recent memorandum of Mr. Justice "Watkiu Williams a striking illustration. The "logic" to which the learned judge appeals in the first instance is of that sort which admits no distinction, and therefore puts all judges on the same level as members of the same court; all are to be ordinary judges. But though a judge is a judge, and there is to be no distinction of judges, yet, though business is business, there may be a distribution of business, since it admits of "natural divisions "; and strangely enough, the distribution of business brings round again a distribution of functions, and even, it seems, a distinction of classes of judges; for "high appellate business," whatever that may be, is to be appropriated to the "Lords Justices of Appeal." But perhaps Lords Justices of Appeal are, after all, only ordinary judges under another name—a name which they are to assume, perhaps, when for the moment they put on the exercise of "high appellate" functions. If, however, this is the real meaning of the loose and sonfused language in which that part of the memorandum is expressed in which the learned judge assents to and approves the abolition of the three divisions then under consideration, what are we to say to the conclusion, in which the writer lays aside his logical severity, and having, as far as in him lay, abolished the Common Pleas Division and the Exchequer Division, proposes to retain the "great offices" of Chief Justice and Chief Baron of the courts which he has just destroyed? "Delicate and invisible springs," it seems, "would be touched" by their abolition; the "quality and tone " of the bench would " suffer seriously from the absence of these high judicial officers "—these chiefs of nothing; these captains without troops, with names that signify no real existence, a kind of " men in

armour " who are to wear the insignia, without discharging any of the functions, of those they simulate. When a mind that set out with so stern a logical purpose Iosea itself among "delicate and invisible springs," and "indirect but invisible consequences," and proceeds to contradict flatly the consequence of all its premisses and to state so poor and impotent a conclusion—what can we do but wonder what are the subtle "springs" that have the power to warp it aside from a path where (without much logic) common sense would seem enough to keep it straight?

A Point which arose on Wednesday, in a case of Humphreys v. Brown, is worthy of notice as showing the spirit in which the court, under the present practice, deals' with technicalities. The plaintiff had delivered his statement of claim in the action, and each, of the two defendants had delivered a statement of defence. The plaintiff then delivered an amended statement of claim raising a fresh case, and one of the defendants obtained leave to amend his statement of defence. This amended defence was duly settled by counsel, and pleaded matters in answer to the amended statement of claim; but the plaintiff by his reply, having, as he alleged, received no amended statement of defence, merely joined issue with, the defendants "upon their statements of defence." When the action came to the hearing, the plaintiff based an important part of his case upon the contention that the statemects in his amended statement of claim had never been denied by the defendant in question, and must therefore be taken to be admitted by him. The defendant, however, asserted that he had delivered his amended statement of defence, but could show no indorsement or note to prove any delivery beyond a long-standing entry in the cost-book, charging for delivery. The plaintiff's solicitor, on the other hand, positively denied that any amended statement of defence had been delivered. Vice-Chancellor Hall, after the state of circumstances had been fully explained, decided that, as it was clear there had been a mistake on the part of the solicitors upon one side or the other, it would be a proper course to order the action to stand over, directing the reply to be withdrawn, the defendant to deliver his amended statement of defence within four days, and the costs of the day's hearing to be specially reserved, with liberty to either party to file any evidence as to the point in dispute of the delivery or non-delivery of the pleading in question.

The Members of the Western Circuit may be justly proud of the fact that their circuit has furnished two successive Lord Chief Justices of England. During the last hundred years it has also produced one Lord Chancellor, Lord Truro; and among Lord Coleridoe's predecessors in the Common Pleas, it can boast of the names of Gibbs, Gippord, Wilde, Cocxburn, and Erle. Among the law officers of the present century Sir Vicary Gibes, Sir Robert Gippord, Sir William Follett, Sir Alexander Cocxburn, Sir Kobert Collier, Sir John Kakslaee, and Sir John Coleridge belonged to the Western Circuit. In addition to the Lord Chief Justice the circuit is represented on the bench by Sir Kobert Collier, Sir Montague Smtth, Mr. Justice Lopes and Mr. Justice Bowen.

A telegram has been received at the Foreign Office from her Majesty's Charge d'Affairs at Copenhagen to the effect that the Danish Government regret that they have not the power to agree to either of the requests made by her Majesty's Government—viz., for an extension beyond the 27th of November of the period for the registration of British trade-marks; or, if the extension could not be granted, that the applications for registration of British trade-marks might be received without being accompanied by the certificates of titles, such certificates to be subsequently supplied.


The case of Debenham v. Mellon has been decided by the House of Lords in accordance with general expectation, and, as we venture to think, in the only way consistent with principle. Excluding the cases of a wife who is living separate from her husband without any default on her part, or who has been left destitute by her husband (which rest on different considerations) it is clearly settled that the authority of the wife to pledge the credit of her husband is in the capacity of agent for him. If so, it is impossible to say that an authority derived from the will of the husband can exist contrary to his will, unless the husband has so conducted himself as to make it inequitable for him to deny, or to estop him from denying, her authority. When, as in the recent case, the wife is cohabiting with the husband, who makes her a reasonable allowance for the purpose of providing herself with articles of the description of those in respect of which the claim is made, and there is no proof of any act done by the husband to hold out his wife as having authority to pledge his credit, there is absolutely no reason for refusing to give effect to the husband's express secret prohibition to his wife to pledge his credit. The question of the supposed hardship to the tradesman wonld not be better dealt with than it was by Lord JusticeThesigerinhis judgment when Debenhamv. Mellon was before the Court of Appeal: "What, in the case of a tradesman dealing with the wife for the first time, lias the husband done or omitted to do which renders it inequitable for him to deny his wife's authority? For the tradesman it is said that the mere relationship of husband and wife entitles him to assume, in the absence of notice to the contrary, that the wife has authority to pledge her husband's credit for necessaries. But this is a fallacy. The tradesman must be taken to know the law; he knows (for the present argument proceeds upon that supposition) that the wife has no authority, in fact or in law, to pledge the husband's credit, even for necessaries, unless he gives it her, and that what the husband expressly or impliedly gives ho may take away. How then can the tradesman dealing with the wife for the first time, and without any communication with, or knowledge on the part of, the husband, Bay that he is induced or invited, either by law or the husband, or by both combined, to deal with the wife upon the faith and in the belief of her being in fact authorized to pledge her husband's credit i If he be so induced or invited, it can only be upon the footing of the law making a husband absolutely liable for necessaries purchased by his wife to any person dealing with her, although for the first time, without notice that her authority is limited; but if the law does so make him liable, there is no need for any e-itoppel, and we are driven back upon the exploded notion that the husband's liability is founded upon some Uw other than that which governs in general the relations of principal and agent."

■ In giving effect to the husband's prohibition, the House of Lords merely affirmed the doctrine laid down in Jolly v. Jlees (12 W. R. 473,13 C. B- X. S. 628). Bat if the reports which have appeared of the judgment of the Lord Chancellor are correct, the House went a step farther than Erie, C.J., and his two colleagues. In Jolly v. Rees the husband and wife had an establishment, and many of the goods were ordered by the wife of the plaintiff's traveller at the defendant's house. The jury, moreover, found that the allowance made by the defendant to his wife was not sufficient. Under these circumstances the majority of the court held that there was '' a presumption that a woman living with a man and represented by him to be his wife, has his authority to bind him by her contract for articles suitable to that station which he permits her to assume," but this presumption might be rebutted. By this so-called presumption the court appears to have meant that under such circumstances authority is implied from the fact that wives cohabiting with their husbands ordinarily have

authority to manage in their own way certain departments of the household expenditure, and to pledge their husband's credit in respectof matters coming within those departments. No-win DebenhamY. Mellon the husband and wife had no establishment. Theywcreliviugatanhotel,and it was proved that the allowance made by the husband to the wife was ample for the purpose of providing her with the articles in respect of which the claim was made. Under these circumstances the House of Lords seem to have held that there was not even any prima1 facie implication of authority. We have not before us yet a full report of the judgment of the Lord Chancellor, but this is the effect of his observations as they were reported in the daily papers. He said that "the second question was whether the law implied such a mandate [i.e., a mandate by the husband to the wife which made the wife, who could not contract herself, the agent in law for the husband, so as to enable her to pledge his credit and bind him] from the mere fact of cohabitation. If it did, it was because the implication arose out of a certain condition of facts, and on the ground that it was usual for the wife to have authority to pledge her husband's credit. But in the present case nothing had been done by the husband which would justify the assumption that he had given any authority to his wife to pledge his credit, inasmuch as the ordinary state

of circumstances was entirely wanting

When a reasonable allowance was made by the husband to the wife, it was impossible to imply from the circumstances that he also gave her authority to pledge his credit." If we are right in our construction of the decision of th e House of Lords, the express prohibition by the husband to his wife in Debenham v. Mellon was immaterial, for there never was any presumption or implication that she had power to pledge his credit.


The decision of the Court of Appeal in the case of J. W. Thorley's Cattle Food Company v. Massam (28 W. B. 966, L. R. 14 Ch. D. 763, to which we briefly referred in our last volume) is of very considerable importance to the mercantile community, establishing as it does the right of a trader whose trade has been injured by the unfounded allegations of another to obtain the remedy of an injunction. Before the Judicature Act came into operation, the Court of Chancery had frequently refused to extend its appropriate method of protection to persons whose trading reputation had been attacked, and the seal to this refusal of assistance had been set so lately as the year 1875, by the authority of Lord Cairns and Lords Justices James aud Mellisb, in the well-known case of Prudential Assurance Company v. Knott (23 W. R 249, L. E. 10 Ch. 142), when those three eminent judges distinctly decided that the court had no jurisdiction to restrain a libel, even when injurious to property. The contrary view had been repeatedly maintained by Vice-Chancellor Malins, who was of opinion that where libellous statements tended to the injury of property, the court had ample power to restrain the continued issue of suoh statements, notwithstanding their libellous character {Springhead Spinning Company v. Riley, L. E. 6 Eq. 501; Dixon v. Holden, 17 W. R. 482, L. R. 7 Eq. 488; Fisher v. Apollinaris Company, 23 W. R. 460, L. R. 10 Ch. 297, and other casec). The principle on which that view was overruled was that libel cases were properly questions for a jury. The functions of a jury are now, however, not unfrequently discharged by the court itself, and that remedy which, before the Judicature Acts, it was out of the power of the courts to award, has been awarded by the Court of Appeal.

When the motion in the case to which we referred at the commencement of this article came before ViceChancellor Malius, his lordship did not think fit to award an injunction, hesitating to act contrary to Prudential Assurance Company v. Knott, though he did express an opinion that the difficulty felt by the judges in confirming the view taken by him in that case had been removed by the Judicature Acts (see L. R. 6 Oh, D. 582). But when the action came on for hearing, the Vice-Chaucellor thought himself entitled to act on the view which he had consistently maintained, and he accordingly granted an injunction. The whole matter is clearly stated in the compass of a few lines in the judgment, which we may be excused for reproducing. "When one man," says the Vice-Chancellor, " publishes that which is iujurious to another in his trade or business, that publication is actionable, and, being actionable, will be stayed by injunction, because it is a wrong which ought not to be repeated." This view met with the approval of the Lords Justices, about the ground of whoBe decision there can be no ambiguity, for they expressly based their judgment on the ground that a libel had been put forth by the defendants.

The facts of the case were simple. A brother of Joseph Thorley, the inventor of Thorley's Cattle Food, was equally possessed of the secret with his brother, and, after the brother's death, he formed a company which manufactured cattle food substantially according to the old recipe. The executors and successors in business (who, according to the decision of the Court of Appeal in Massam v. J. W. Thorley's Cattle Food Company, 28 W. K. 966, L. E. 14 Ch. D. 748, also succeeded to Joseph Thorley's exclusive right in the name of the article) thereupon issued statements to the effect that the company's article was a spurious imitation of the genuine article. The court held that, the articles manufactured by the parties being substantially identical, the representations put forth by the defendants were untrue; that those untrue representations were libellous and calculated to injure the company in their business ; that, this being so, it was not necessary for the company to prove actual damage, and that they were entitled to their remedy.

Singularly enough, within a very few days, the very same question came up again for decision by Mr. Justice Fry in Thomas v. Williams (28 W. R. 983, L. R. 14 Ch. D. 864), where the plaintiff was a manufacturer of needles, which he sold and exported to Australia and other places in large quantities, as the needles of "S. Thomas & Sons" (the name of his firm), and of "Holyoake" or "George Holyoake" (the name of another manufacturer, to whose business he had succeeded by purchase). The defendants, who were exporters of small wares, then arranged with a firm of needle manufacturers, named J. Thomas & Sons, and with another manufacturer, named Edmund Holyoake, for a supply of their needles for exportation, and issued in the Australian market a circular stating that they had made arrangements with "the original firm of Thomas and the original and only manufacturers of the name of Holyoake," and alluding to the existence in the trade of spurious makers of needles. These cautions could, it was clear, only be directed against the plaintiff, whose needles they had the effect of stigmatizing as spurious and unfair imitations, and an injunction was accordingly, on the authority of J. W. Thorley's Cattle Food Company v. Massam, granted to restrain the defendants from issuing or permitting the issue of the libellous circular, and from in any manner representing or suggesting that the goods made and sold by the plaintiff were imitations of the goods made and sold by J. Thomas & Sons or Edmund Holyoake. "If," said the learned judge, " the issue of such a circular cannot be restrained without proof of actual injury, it is obvious that preventive justice falls short of what it ought to accomplish in such a case as this; because, to require evidence of injury in a case where the prospective injury is visible, and not to interfere until it has, to some extent, effected its injurious purpose, would be clearly a defect in the jurisdiction. And we are all acquainted with cases of trade-marks where the court, seeing that a mark ia designed and will

necessarily have the effect of perpetrating or assisting in the perpetration of a fraud, is accustomed to restrain the use of it, although no positive evidence has been given, of injury resulting from its use."

From these two cases several propositions may be deduced. The first is that where a statement of a public nature is put forth, whether in the shape of a circular,, advertisement, or otherwise, which will naturally tend to do injury to a trader in his business, by insinuating distrust in the bona fides of his trade or the genuineness of his manufactures, this injury can be at once arrested by the issue of an injunction restraining the continued utterance of such misrepresentations. In the next place, the fact that that this statement is one which might properly be submitted to the consideration of a jury ia an action for libel is no bar to the proceeding for an injunction. And, in the third place, the fact that the case is one of merely apprehended damage is immaterial. To wait till the damage was inflicted, at all events in part, would bo to render preventive justice unequal to its task, and if the court sees clearly that a preventive remedy is really needed, it need not defer the application: of that remedy till the injury has been inflicted, when, in fact, it would come too late to effectively exert its protective influence.

As injunctions of this description have been so recently introduced, it may not be out of place to notice here that the injunction granted in J. W. Thorley's Cattle Food Company v. Massam was to restrain the defendants "from advertising, or representing, or suggesting, in their advertisements or circulars that they were alone possessed of the secret mentioned in the pleadings, and from representing, or suggesting, or doing anything calculated to represent or suggest, that the cattle food manufactured and sold by the plaintiff company was spurious or not genuine."

Now that it is established that such statements can be restrained by injunction, we may fairly anticipate that further applications of the principle will before long be called for.


RIGHTS OF COMMON. Riouts Op Common And Other Prescriptive Rights; Beino Twenty-four Lectures Delivered In Gray's Inn Hall In The Year 1877. By Joshua Williams, Esq., Q.C., Professor of the Law of Real and Personal Property to the Council of Legal Education. H. Sweet.

The utility of lectures such as these, in so far as regards the oral delivery of them, is to us by no means obvious. Their value when offered in the form of a written treatise upon the subj ect to which they refer is, on the other hand, beyond possibility of question. We do not know how far the generally entertained respect for the learning of Mr. Williams may have expressed itself by a large attendance in Gray's-iuu I lull when the lectures were delivered. He is undoubtedly looked upon by the present generation of lawyers as the Gamaliel of real property law. But even Gamaliel might have found a difficulty in gathering his disciples to his feet, if he could have spoken to them through the medium of a beautifully printed octavo, such as this, as easily as by oral discourse. The lecture may be a highly successful means of imparting knowledge; but it is successful only under conditions. It is admirable, of course, when the subject is one enabling the teacher to explain his meaning by physical illustration or experiment. It may be admirable, whatever the subject, when the mind of the lecturer is ardent to impress his audience with the interest and possibilities of it as a science, to discover general principles, to present them with variety and vigour of expression, and to enforce them with such clearness and fullness of illustration that they may become indelibly fixed upon the mind. Bat the book rather than the lecture is the proper medium of expression when the object is merely an exhaustive statement of the results of accumulated learning. And a book is by no means improved by being cast in the form of a series of discourses. It necessarily loses in conciseness of statement; and how much it loses in clearness of arrangement may be seen from the fact that each of these lectures is printed without any attempt to define its subject-matter by means of a heading.

As to the substance of the book, however, we have only to congratulate our readers upon the publication of so valuable an aid to the understanding of a difficult subject. To the practising lawyer it is valuable, from the fact that the professional position of the writer, and his experience in modern litigation with reference to the rights treated of, enable him to speak with an authority which no other writer could claim; and the reader will find here an outline, not merely authoritative, but interesting and readable, of the law on commons, franchises, and easements. To the student of early English institutions it will be equally valuable, from the support which Mr. Williams's acquaintance with the year-books and old text-writers enables him to give to the modern theory concerning the methods of ancient agriculture and property in land; and it is, in our opinion, in this latter aspect that the book is specially noteworthy.

Those persons who are unable to conceive of any reasonable appropriation of the soil of a country other than its division into vast estates, each belonging to one person absolutely (except in so far as the law, in its passion for "limited ownership," has put it into the power of some other person, dead or unborn, to prevent the owner from dealing with it as he pleases), may be startled to find that their ancestors were, in this particular, communists. Yet such appears to be the fact. The large and lucid generalizations of Sir Henry Maine, in his work on Village Communities, show that proprietorship by the village community was probably the original form of landed property in England, in India, and in other countries inhabited by Aryan peoples; and now Mr. Williams proceeds to confirm these conclusions by reference to the records of English law, and to the frequent existence, until late years, of the "common field" system, which was plainly a survival of the communistic practice. He shows us that at least one such community was in the active exercise of its original rights and customs as lately as the year 1854. The essential feature of the village community, described in our law as the rill, town, or township, was ownership of the land by the vill and its enjoyment by the members according to general regulations framed by all for the benefit of aQ. These regulations related not only to the land reduced to order and cultivation, but also to those surrounding woods and wastes which separated the ploughland and meadow belonging to one vill from those belonging to another, and which constituted the mark according to the most distinctive use of that word. The boundary line as between the waste used by neighbouring vOls would naturally in the first place be undefined; and wherever the waste remained open it did, in fact, continue undefined for the purpose of enjoyment, although, doubtless, at an early period it became bounded for certain purposes of jurisdiction. That it should become so bounded was a necessary result of the right possessed by each vill to control all the freemen belonging to it in the exercise of their rights of pasture upon the waste. If we assume for a moment that the vill, with its assembly of freemen, was the original of the English manor, with its court baron of freeholders, and refer to the position of Epping Forest (as it appeared in the recent litigation respecting it), we may see this communal system, in so far as relates to the right of pasture, in actual operation, and we see also the nature of the interest possessed by adjoining villa in the vast extent of country which had retained its original character of open waste. There was no dividing line between the waste lands enjoyed by one

vill and those enjoyed by another; but the limits of the villa or manors had become defined for the purpose of jurisdiction, and eaoh vill had its own marking officer and its own mark for distinguishing its cattle from those belonging to the vill adjoining. Tne imposition upon the district of the Forest system, with its absolute prohibition of inclosure, had petrified the primitive condition of enjoyment, so that the original practice of the villa in letting their cattle depasture anywhere upon the surrounding wastes had acquired all the character of a right

Mr. Williamc, after pointing out the importance which was once attached by our law to the vill or town as the unit of social organization of greater antiquity than the parish, adduces the most striking evidence to show that common of pasture, as appendant to arable land, was originally an incident of the vill system. To cite a single instance, he says: "If we go back to the time of Bractou, who wrote in the reign of Henry III., we shall find that the form of writ, which he gives as proper to be used by a person who has been disseised of his right of common, does not refer to the land in respect of which the right of common is claimed, as being held of any manor, nor does it refer to the land over which the right of common is claimed as waste land of any manor. On the contrary, the writ is as follows:—'The King to the sheriff, greeting: A. complains to us that B. unjustly and without judgment disseised him of his common of pasture in such a vill, which belongs to his free tenement in the same vill, or in another vill.' And the form of writ for the same purpose given in the second volume of Fitzherbert's 'Natura Brevium' is to the same effect: 'The King to the sheriff, &c.: A. hath complained unto us that B. unjustly, &c, hath disseised him of his common of pasture in X., which belonged to his freehold in the same town, or in another town.' Again, in describing the old writ of admeasurement of pasture, which lay betwixt commoners who had common appendant to their freeholds, Bracton gives this form:— 'The King to the sheriff, greeting: Such a one complains to us that such a one unjustly surcharged his common of pasture in such a vill, so that ho has in it more cattle and sheep than he ought to have, and than belonged to him to have; and therefore we command you that justly and without delay you cause that pasture to be measured, so that the said such a one shall not have in it more cattle and sheep than he ought to have, and than belonged to him according to his free tenement, which he has in sue A a vill; and that the said such a one have in that pasture so many cattle and sheep as he ought to have, and as belonged to him to have, and no more.'"

But, although the existence of the vill system appears clear enough, the mode by which the vill became transformed into the manor is less evident. The occasional reference in some of the old books to the " lord of the vill,'' instead of to the lord of the manor, suggests that the transition began by the creation of a saignory or jurisdiction over the vill, and that this seiguory so far developed during the exigencies of the feudal period as to attract to itself all rights of property not palpably appropriated, and especially the ownership of the waste. In some cases, indeed, the transition never took place, as witness the continuance of the "common field" system already reforred to. That system has been expressly noticed in recent times by the Legislature, the statute 13 Geo. 3, c. 81, having been passed for its better regulation. The system is yet scarcely extinct, and is thus described by Mr. Williams:—

"A common field is a very different thing from what is ordinarily called a common. What are ordinarily called common or waste grounds are open pasture land?, on which the tenants of a manor or other persons have a right to put their cattle to feed. But a common field is a field belonging to numerous owners, whose lands, as far as I know, invariably assume a remarkable shape— viz., that of very narrow strips, sometimes not more than

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