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who has a common thereby on the the tenants and inhabitants, &e. to Lord's Waste, may sat up a custom use and enjoy the same as they had to cut rushes, as annexed to his formerly done, or been accustomed right of common. Bean v. Bloom. to do, inust be taken to mean such

2 Blackstone, 926.3 Wils. 4 6. a right of common as may by law 5 The party claiming a common of exist, namely, a right of common

pasture, in pleading need not say limited by levancy and couchaney. in express terms, whether it be com- 8 Term Rep. 396. mon appendant, appurtenant, or in 11 A preseription for common of pasgross ; but the court will judge of it, ture, for a certain number of sheep, from the nature of the right claimed. on A., every year, at all times of the Musgrave v. Cave and another. . year, is well" laid, though the eviWilles, 319.

dence which proves the right of Common of pasture, without land, common, proves also that the tenant

may be parcel of a manor, though of a certain farm has a right to have demised, and demisable by copy of the sheep folded at night on his court roll ; and if it be claimed by farm, after they have fed on the the lord of a manor, in the soil of common during the day. Brooke v. another, for a certain number of Willet. 2 H. Black, 221. cattle, without regard to levaney 12 The owner of a tenement may have and couchancy, and be not claimed two distinct rights of common for as incident to arable land; it will his cattle levant and couchant upon be taken to be common appurtenant. such tenement, upon different wastes; Ib.

in different manors, under several 6 Common appendant only belongs lords; and therefore ati allotment

to arable land, and levancy and under one inclosure act, in lieu of couchancy are incident to it as well his right of common upon one of as to common appurtenant.

Ben- such wastes, will not do away or nett v. Reeve of others. Willes, lessen his claim for an equal alot

ment with other commoners under Common appendant can only be claim- a subsequent act for inclosing the ed for so many cattle as are neces

other waste. Semble aliter; if sary to plough and manure the ten- the different waste had appeared ant's arable land. Ib.

to have been originally holden unAnd see PLEADING.

the same lord. Hollinshead y. Wala in Common for cattle levant and ton. East, 485.

couchant cannot be claimed by prescription, as appurtenant to a house II. Inclosure and Appropriation. without any cutilage or land. Scholes v. Hargreave. 5 Term Re- 1 Commoner cannot justify dispersports, 46.

ing fern ashes burnt by a stranger. 8 Levaucy and couchancy means the

Woodson v. Narton. 2 Str. 777. possession of such land as will 2 A custom for one commoner to inkeep the cattle claimed to be com- close against another is good. Barmoned during the winter. 5 Term ker v. Dixon. 1 Wils. 44. Rep. 46.

3 The lord of a manor niay inclose 9 A right of common without stint part of a common against tenants

as annexed to an ancient messuage, having common of pasture, notwithwithout land, cannot exist in law. standing they have also common of Benson v. Chester. 8 Term Rep. turbary, if he leave sufficient com396.

mon of pasture. Fawcett v. Strick10 An ancient deed of feoffment grant- land and others. Willes, 57.

ing the wastes and commons of a But if the lord in approving injure the panor to feoffees in trust to permit common of turbary, 'the persos


whose right is so injured may have a grant of the soil of those wastes an action against the lord. Faw- to trustees for the use of the copy. cett y. Strickland and others. Wil- holders in free socage, the lands les, 57.

when inclosed will be freehold and 4 The lord has no right, under the not copyhold. Revell v. Jodrell.

statute of Merton, to inclose and 2 Term Rep. 415. approve the wastes of a manor, where 10 Where, by the terms of an inclothe tenants of the manor have a sure act for inclosing the wastes right to dig gravel on the wastes, a manor, a certain portion was to or to take estovers there. Duberly be made to the lord in lieu of his v. Page. 2 Term Rep. 391.

right and interest in the soil, and 6 A custom in a mapor, tha' any the residue was to be allotted to

person being desirous of inclosing the several tenants in fee, dischargmay apply to the court, &c. first ed from all customary tenures, &c. obtaining the consent of the lord, a saving clause, reserving to the does not abridge the lord's common lord of the manor, all seigniories law right of inclosing without any incident to the manor, and all rents, such application, provided he leave fines, services, &c., and all other a common sufficient for the tenants, royalties and manerial jurisdictions 2 Term Rep. 392, n.

whatever, will not reserve mines un6. Any person who is seized in fee of der those allotments to the tenants;

part of the waste within a manor though it appear that there was a may approve, leaving a sufficiency subsisting lease of such mines at of common, though he be not the the time the act passed, granted by lord of the manor. Glover v. Lane, the lord of the manor. Townley v. 3 Terin Rep. 445.

Gibson. 2 Term Rep. 701. hy A custom that the owners of an

cient messuages, &c. within a manor III. Surcharging, or otherwise injurhave bad assigned to them by the ing, and Remedies for. Moss-Reeve certain portions of the common to be held by them in sev- 1 If a commoner, having right of eralty for digging turves, &c. call- common for one beast, put in two, ed Moss-Dales, and have inclosed the lord can only destrain the one and approved such moss-dales, (af- put in last, unless they were both ter clearing them of turves,) and turned on together; and it must be held them so inclosed in severalty, shewn in a plea (justifying the tak. discharged from all right of com- ing as a surcharge) whether they mon, is good in law. Clarkson. v. were put on together or separately;

Woodhouse. 5 Terin Rep. 412, n. and if the latter, which was put on & The lord of a manor, or his gran

first. Ellis v. Kowles and another. tee, may inclose and approve part Willes, 638. of a common against tenants hav- 2 If a common be absolutely stinted ing common of pasture, notwith- in point of number, one commoner standing they have also some other may distrain the supernumerary right on the common, as a right to cattle of another; but not if an addig for sand, &c. if he leave suffi- measureinent is necessary, as where cient common of pasture. Shake- the stint has a relation to the com

speare v. Peppin. 6 Term Rep. 741. moner's land. Hallv. Harding. 9 By a grant of a manor with an ex- 1 Black. 673. 4 Burr. 2426.

ception of the wastes, they are 3 In an action on the case for a sur. thereby severed from the manor, charge of common, the plaintiff though the copyholders continue to may declare generally for the inhave a right of common thereon quiry, without stating precisely by immemorial custom; and after what the defendant's true right of right.

common is. Atkinson y. Teasdale.

cessary to let himself into the com2 Black. 817. 3 Wils. 278.

mon. 6 Terin Rep. 483. 4 In case for a surcharge of com- 9 The right of commoners in a com

mon the plaintiff need not shew that mon may be subservient to the right he turned on any cattle of his own of the lord in the soil ; so that the at the time of the surcharge, but lord may dig clay pits there, or emonly that he could not have enjoy- power others to do so, without leaved bis common as beneficially as ing sufficient herbage for the comhe vught.

Wills v. Watling. 2 moners, if such a right can be provBlack. 1233.

ed to have been always exereised 5 One commoner, who has surcharg- by the lord. Bateson v. Green. 5

ed, may nevertheless maintain an Term Rep. 411. action against another for surcharg. 10 So the lord may, with the consent ing the common.

Hobson v. Todd. of the homage, grant part of the soil 4 Term Rep. 71.

of the common for building, if he A. being possessed of a quantity of has immemorially exercised such a land in a common field, and having

Folkard v. Hemmett. 5 a right of common over the whole Term Rep. 417, n. field, and B. having also a right of 11 The immemorial exercise of such common over the whole field, they a right by the lord is evidence that enter into an agreement for their he reserved that right to himself mutual advantage and convenience, when he granted the right of comnot to exercise their rights for a

mon to the commoners. 5 Term certain terin of years, and each par

Rep. 417. ty covenants to that effect: If, dur- 12 A commoner may maintain an aeing the term, the cattle of B. come tion on the case for an injury done upon the land of A., he may distrain to the common by taking away from them damage feasant; for the gen- thence the manure which was droperal rule that one commoner cannot ped on it by the cattle; though his distrain the cattle of another is su- proportion of the damage be found perseded by the special agreement, only to the amount of a farthing; by which, (with regard to 1.) B. at least the smallness of the dambecame a stranger.–And A. may age found is no ground for a nonin his replication (in answer to a

Pindar v. Wadsworth. 2 plea pleaded by B. of his right of East, 154. common, in bar of the cognizance of A.) set forth the special circumstances of the agreement and cove- COMPOUNDING ACTIONS. nants, and leave the construction of them to the court. Whiteman v. 1 Leave to compound denied upon King. 2 H. Black. 4.

the statute for selling gold rings of A commoner cannot justify cutting less fineness than it directs. Howedown trees planted by the lord on ell qui tam v. Morris. 1 Wils. 79. the waste though there be not a suf- 2 Motion for leave to compound on ficiency of common left; but his the building act by consent of the remedy is by action on the case, or plaintiff'; but the court would not by assise. Sadgrove v. Kirby. 6 grant the rule as of course, for it Term Rep. 183.

might be corin or collusion. Anon. (Affirmed in Cam. Scac. Kirby v. Lofft, 372, 395.

Sadgrove. 1 Bos. & Pul. 13.) 3 An indictment on a popular sta8 But if the lord totally exclude a tute cannot be compounded after

commoner from the common, the the conviction. Brery qui tam v. commoner may

do whatever is ne- Levy. 1 Black. 443.


2 He has no right to adjudge a comCOMPOSITION WITH CREDI- pensation from the state for damaTORS.

ges which individuals


have suf

fered, in the course of military ope1 Composition made with the par- rations for the con:mon security and

ties siguing, binds. Ellis v. Ollave. defence. Ib.
3 Salk. 60.

3 Where he has no jurisdiction ori2 Composition made by virtue of the ginally, the supreme court, on ap

statute against bankrupts must be peal from his decision, can have final. Feltham v. Cudworth. 3

pone. Ib. Salk. 59. 3 Debt upon judgment. The defendant pleaded a composition made

CONDITION. with two thirds of his real creditors, &c. and the act of parliament 8 and 1 Condition to make I. a lease for 9 W. 3, c. 18, and in his plea he life, or pay him 1001. A. dies beavers that he se ab usuali loco com- fore lease inade. His executors monrantiae suae such a day subtrax

shall have the 100l. Anon. 1 Salk. it et abscondidit, being unable to pay

171. his debts; but does not say he ab- 2 Void condition makes the lien sconded for debt. And for this void where it is part of it; otherfault judgment was given for the wise where it is indorsed or underplaintiff, as it had been before in a written. Pullerton v. Agnew. 1 case in this court betweeu Southouse Salk. 172. v. Rutter.

Greenway v. Freeman. 3 Where he who is to perform a 2 L. Raym. 810.

condition is only in nature of a trus4 Debt


bond. The defendant tee or instrument, there a temporapleaded the act of composition 8 ry disability is absolute and for exand 9 W. 3, c. 18, &c. Exception er; but where the performance is was taken to the plea that the de- for his own advantage it is otherdefendant only says that he ab- wise; for the disability may be resconded the 17th day of November, moved, and then he may perform 1696, and does not say that he ab- the condition. Page v. Heyward. sconded at the time of the making

3 Salk, 96. the act; for the seventeenth of 4 Condition to exhibit an inventory November extended only to the be- into the spiritual court before such ing a prisoner for debt, but the ab- a day; defendant in excuse must seonding ought to be at the time of

not only plead that no court was the act, &c. and for this reason the held, but also that he was there plea was held ill, and judgment for read. Archbishop of Canterbury v. the plaintiff. Nicholls v. Tirrett. Willes. 1 Salk. 172. 2 L. Raym. 811.

An obligor binds himself to leave his children 1001. He leaves four

children, and gives the eldest an esCOMPTROLLER GENERAL. tate in London, and to the other

three 501. apiece. This is not a 1 The power of the comptroller gen- performance of the condition. Tay

eral in the settlement of accounts a- lor v. Bird. 1 Wils. 280. gainst the Commonwealth, is ex- 6 The resolve of the General Court pressly limited by the act of Assem- dated March 5th, 1801, relating to bly to claims for services perform- the Pejepscot proprietors, and to ed, monies advanced, or articles setiers on their lands, being upon furnished, by order of the legisla- condition to be performed by the ture, or the executive council. 1 said proprietors, and the condition Dallas, 263.

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not having been fulfilled, the resolve : If a confiscating act, independent has effect. Little v. Frost. 3 of the treaty, would be construed to Mass. 106.

destroy the claim of a British nortWhere one conveys an


gagee the treaty reinstates the lien upon a condition, to be thereafter in its ful force; and a subsequent performed by the grantee, and the sale could only pass it with its burgrantor continues in possession, he den. Higginsov v. Mein. 4 Cranch, need not make a formal entry for 419. the condition broken, and the fee A writ of error lies to the 'highest remains in him without entry. Lin- court of a state in a case where the coln and Kennebeck Bank v. Drum- question is whether a confiscation inond. 5 Mass. 321.

under the law of the state was com. 8 A bond from a deputy sheriff to plete before the treaty of peace

the sheriff, conditioned to render with Great Britain. Smith v. Maa and pay to the obligee one third ryland. 6 Cranch, 286. part of the legal fees on all writs o By the confiscating acts of Maryand executions that should come to land the equitable interests of Britthe hands of the deputy, is void by ish subjects were confiscated with: stat. of 1795, C. 41, coinmonly call- out office found, or entry or other ed the fee-bill. Farrar, adm. v. act done, although such equitable Barton et. al. 5 Mass. 395.

interests were not discovered until 9 No parol assent, or silent acquies- long after the peace. Ib.

cence, will destroy the effect of a condition contained in a deed, or amount to a waiver of the forfeiture.

CONGRESS, Jackson v. Cuyler. Johns. Cases, 125.

1 The resolves of Congress are evi

dence on a trial touching the sub

jects to which they relate. 3 Dal, CONFESSIONS.

las, 39 to 42.

2 Congress, before the ratifieation of Confessions of guilt, obtained by the articles of confederation, had promises of favour to be shewn, not authority to institute the court of admissible in evidence. 1 Mass. commissioners of appeals, with ap 144.

pellate jurisdiction in cases of prize. 2 In a libel for divorce uncorroborat- 3 Dallas, 84 to 120.

ed confessions of the fact of adulte- 3 What were the revolutionary pow. ry not admissible. 1 Mass. 346. ers of Congress during the war

with Great Britain. Ib.

4 The jurisdiction of the congresCONFISCATION.

sional court of appeals, after the

ratification of the articles of confed1 The confiscation acts of Georgia eration. Ib.

are not repugnant to its constitu- 5 The operation of the amendment tion. 4 Dallas, 14.

of the constitution in relation to the 2 The act of Georgia, confiscating jurisdiction of the federal court in

the estate of the mortgagor, is no suits brought by individuals agaiust bar to the claim of the mortgagee, a

States. 3 Dallas, 382, 3. British merchant, whose debt was 6 The prohibition in the constituonly sequestered during the war. tion, respecting ex post facto laws, The estate of the nortgagor only considered and expounded. 3 Dall. was confiscated, not that of the 386 to 401. mortgagee. Higginson v. Mein. 4. The privilege of members of Con Cranch, 413.

gress in cases of arrest on mesne

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