5 who has a common thereby on the Lord's Waste, may sat up a custom to cut rushes, as annexed to his right of common. Bean v. Bloom. 2 Blackstone, 926. 3 Wils. 4 6. The party claiming a common of pasture, in pleading, need not say in express terms, whether it be common appendant, appurtenant, or in gross; but the court will judge of it, from the nature of the right claimed. Musgrave v. Cave and another. Willes, 319. Common of pasture, without land, may be parcel of a manor, though demised, and demisable by copy of court roll; and if it be claimed by the lord of a manor, in the soil of another, for a certain number of cattle, without regard to levancy and couchancy, and be not claimed as incident to arable land; it will be taken to be common appurtenant. Ib. 6 Common appendant only belongs to arable land, and levancy and couchancy are incident to it as well as to common appurtenant. Bennett v. Reeve & others. Willes, 227. the tenants and inhabitants, &c. to use and enjoy the same as they had formerly done, or been accustomed to do, must be taken to mean such a right of common as may by law exist, namely, a right of common limited by levaney and couchaney. 8 Term Rep. 396. 11 A prescription for common of pasture, for a certain number of sheep, on A., every year, at all times of the year, is well laid, though the evidence which proves the right of common, proves also that the tenant of a certain farm has a right to have the sheep folded at night on his farm, after they have fed on the common during the day. Brooke v. Willet. 2 H. Black. 221. have 12 The owner of a tenement may two distinct rights of common for his cattle levant and couchant upon such tenement, upon different wastes; in different manors, under several lords; and therefore an allotment under one inclosure act, in lieu of his right of common upon one of such wastes, will not do away or lessen his claim for an equal alotment with other commoners under a subsequent act for inclosing the other waste. Semble aliter; if the different waste had appeared to have been originally holden unthe same lord. Hollinshead v. Walton. 7 East, 485. 1 2 3 II. Inclosure and Appropriation. Commoner cannot justify dispersing fern ashes burnt by a stranger. Woodson v. Nawton. 2 Str. 777. A custom for one commoner to inclose against another is good. Barker v. Ďixon. 1 Wils. 44. The lord of a manor may inclose part of a common against tenants having common of pasture, notwithstanding they have also common of turbary, if he leave sufficient common of pasture. Fawcett v. Strickland and others. Willes, 57. But if the lord in approving injure the common of turbary, the person whose right is so injured may have an action against the lord. Fawcett v. Strickland and others. Willes, 57. 4 The lord has no right, under the statute of Merton, to inclose and approve the wastes of a manor, where the tenants of the manor have a right to dig gravel on the wastes, or to take estovers there. Duberly v. Page. 2 Term Rep. 391. 5 A custom in a manor, tha any person being desirous of inclosing may apply to the court, &c. first obtaining the consent of the lord, does not abridge the lord's common law right of inclosing without any such application, provided he leave a common sufficient for the tenants, 2 Term Rep. 392, n. 6. Any person who is seized in fee of part of the waste within a manor may approve, leaving a sufficiency of common, though he be not the lord of the manor. Glover v. Lane, 3 Term Rep. 445. 10 Where, by the terms of an inclosure act for inclosing the wastes a manor, a certain portion was to be made to the lord in lieu of his right and interest in the soil, and the residue was to be allotted to the several tenants in fee, discharged from all customary tenures, &c, a saving clause, reserving to the lord of the manor, all seigniories incident to the manor, and all rents, fines, services, &c., and all other royalties and manerial jurisdictions whatever, will not reserve mines under those allotments to the tenants; though it appear that there was a subsisting lease of such mines at the time the act passed, granted by the lord of the manor. Townley v. Gibson. 2 Term Rep. 701. III. A custom that the owners of ancient messuages, &c. within a manor have had assigned to them by the Moss-Reeve certain portions of the common to be held by them in sev- 1 eralty for digging turves, &c. called Moss-Dales, and have inclosed and approved such moss-dales, (after clearing them of turves,) and held them so inclosed in severalty, discharged from all right of common, is good in law. Clarkson. v. Woodhouse. 5 Term Rep. 412, n. The lord of a manor, or his grantee, may inclose and approve part of a common against tenants hav- 2 ing common of pasture, notwithstanding they have also some other right on the common, as a right to dig for sand, &c. if he leave sufficient common of pasture. Shakespeare v. Peppin. 6 Term Rep. 741. 9 By a grant of a manor with an exception of the wastes, they are thereby severed from the manor, though the copyholders continue to have a right of common thereon by immemorial custom; and after 3 Surcharging, or otherwise injuring, and Remedies for. If a commoner, having right of common for one beast, put in two, the lord can only destrain the one put in last, unless they were both turned on together; and it must be shewn in a plea (justifying the taking as a surcharge) whether they were put on together or separately; and if the latter, which was put on first. Ellis v. Kowles and another. Willes, 638. If a common be absolutely stinted in point of number, one commoner may distrain the supernumerary cattle of another; but not if an admeasurement is necessary, as where the stint has a relation to the commoner's land. Hall v. Harding. 1 Black. 673. 4 Burr. 2426. In an action on the case for a surcharge of common, the plaintiff may declare generally for the inquiry, without stating precisely what the defendant's true right of 9 cessary to let himself into the common. 6 Term Rep. 485. The right of commoners in a common may be subservient to the right of the lord in the soil; so that the lord may dig clay pits there, or empower others to do so, without leaving sufficient herbage for the commoners, if such a right can be proved to have been always exercised by the lord. Bateson v. Green. 5 Term Rep. 411. 10 So the lord may, with the consent of the homage, grant part of the soil of the common for building, if he has immemorially exercised such a right. Folkard v. Hemmett. 5 Term Rep. 417, n. 11 The immemorial exercise of such a right by the lord is evidence that he reserved that right to himself when he granted the right of common to the commoners. 5 Term Rep. 417. 12 5 One commoner, who has surcharg- (Affirmed in Cam. Scac. Kirby v. 2 A commoner may maintain an action on the case for an injury done to the common by taking away from thence the manure which was dropped on it by the cattle; though his proportion of the damage be found only to the amount of a farthing; at least the smallness of the damage found is no ground for a nonsuit. Pindar v. Wadsworth. East, 154. COMPOUNDING ACTIONS. 2 Leave to compound denied upon the statute for selling gold rings of less fineness than it directs. Howell qui tam v. Morris. 1 Wils. 79. Motion for leave to compound on the building act by consent of the plaintiff'; but the court would not grant the rule as of course, for it might be covin or collusion. Anon. Lofft, 372, 395. 3 An indictment on a popular statute cannot be compounded after the conviction. Brery qui tam v. Levy. 1 Black. 443. COMPOSITION WITH CREDI TORS. 1 Composition made with the parties siguing, binds. Ellis v. Ollave. 3 Salk. 60. 2 Composition made by virtue of the statute against bankrupts must be final. Feltham v. Cudworth. Salk. 59. 3 Debt upon judgment. 3 2 He has no right to adjudge a com- 3 The defendant pleaded a composition made with two thirds of his real creditors, &c. and the act of parliament 8 and 1 9 W. 3, c. 18, and in his plea he avers that he se ab usuali loco commonrantiae suae such a day subtraxit et abscondidit, being unable to pay his debts; but does not say he ab- 2 sconded for debt. And for this fault judgment was given for the plaintiff, as it had been before in a case in this court between Southouse Rutter. Greenway v. Freeman. V. 2 L. Raym. 810. 4 Debt upon bond. The defendant pleaded the act of composition 8 and 9 W. 3, c. 18, &c. Exception was taken to the plea that the dedefendant only says that he absconded the 17th day of November, 1696, and does not say that he absconded at the time of the making the act; for the seventeenth of November extended only to the being a prisoner for debt, but the absconding ought to be at the time of the act, &c. and for this reason the plea was held ill, and judgment for the plaintiff. Nicholls v. Tirrett. 2 L. Raym. 811. COMPTROLLER GENERAL. 1 The power of the comptroller general in the settlement of accounts against the Commonwealth, is expressly limited by the act of Assembly to claims for services performed, monies advanced, or articles furnished, by order of the legislature, or the executive council. 1 Dallas, 263. 3 4 Where he has no jurisdiction originally, the supreme court, on appeal from his decision, can have Ib. none. CONDITION. Condition to make A. a lease for life, or pay him 100l. A. dies before lease made. His executors shall have the 100l. Anon. 1 Salk. 171. Void condition makes the lien void where it is part of it; otherwise where it is indorsed or underwritten. Pullerton v. Agnew. 1 Salk. 172. Where he who is to perform a condition is only in nature of a trustee or instrument, there a temporary disability is absolute and for ever; but where the performance is for his own advantage it is otherwise; for the disability may be removed, and then he may perform the condition. Page v. Heyward. 3 Salk. 96. Condition to exhibit an inventory into the spiritual court before such a day defendant in excuse must not only plead that no court was held, but also that he was there read. Archbishop of Canterbury v. Willes. 1 Salk. 172. 5 An obligor binds himself to leave his children 100l. He leaves four children, and gives the eldest an estate in London, and to the other three 50l. apiece. This is not a performance of the condition. Taylor v. Bird. 1 Wils. 280. 6 The resolve of the General Court dated March 5th, 1801, relating to the Pejepscot proprietors, and to setiers on their lands, being upon condition to be performed by the said proprietors, and the condition 8 A bond from a deputy sheriff to 1 2 If a confiscating act, independent of the treaty, would be construed to destroy the claim of a British mortgagee the treaty reinstates the lien in its full force; and a subsequent sale could only pass it with its burden. Higginson v. Mein. 4 Cranch, 419. A writ of error lies to the highest court of a state in a case where the question is whether a confiscation under the law of the state was complete before the treaty of peace with Great Britain. Smith v. Maryland. 6 Cranch, 286. By the confiscating acts of Maryland the equitable interests of British subjects were confiscated without office found, or entry or other act done, although such equitable interests were not discovered until long after the peace. Ib. CONGRESS, The resolves of Congress are evidence on a trial touching the subjects to which they relate. 3 Dal las, 39 to 42. Congress, before the ratification of the articles of confederation, had authority to institute the court of commissioners of appeals, with appellate jurisdiction in cases of prize. 3 Dallas, 54 to 120. What were the revolutionary pow. ers of Congress during the war with Great Britain. Ib. 4 The jurisdiction of the congressional court of appeals, after the ratification of the articles of confederation. Ib. 5 6 The act of Georgia, confiscating the estate of the mortgagor, is no bar to the claim of the mortgagee, a British merchant, whose debt was only sequestered during the war. The estate of the mortgagor only was confiscated, not that of the mortgagee. Higginson v. Mein. 47 Cranch, 415. The operation of the amendment of the constitution in relation to the jurisdiction of the federal court in suits brought by individuals against States. 3 Dallas, 382, 3. The prohibition in the constitution, respecting ex post facto laws, considered and expounded. 3 Dall. 386 to 401. The privilege of members of Congress in cases of arrest on mesne |