COMMON PLEAS, COUBT OF. 



COMMON, RIGHT OP. 



oooereU magnitude* in the manner laid down in the fifth book of 

 I. . 



In Algebra the conrwponding proceu doM not Meet-tain the greatest 

 common uioMuro, which depend* upon the specific value* of i K. letter*. ; 

 ..!y the highest common factor, or that which ha* the highe*t 

 dimension*. Thu part of algebra U frequently rendered singularly 

 obecure by the application of the arithmetical word. Thui, though 

 the highen algebraical factor i a' JT and o* * ii a x ; thin but 

 ia not the greatest common meature in all culm, a* tho reader ma; try 

 bj *uppu*ing a and x to be 8 and (V 



COMMON I'M of the luperior court* of 



record, baring original jurisdiction over Kiigtond and Wale* in all 

 common plea* or civil action* commenced by subject against subject. 

 It U at present eompo*ed of five judges, one of them being chief justice 

 and the other four i-nit*e justices. 



During the xiitence of the Aula or Curia Begin, established by the 

 Conqueror in the hall of hia usual resilience, the palace at Westminster, 

 that tribunal exercued supreme jurisdiction over all temporal causes, 

 which were adjudicated upon by the principal officers of the royal 

 household, often aaauted by (persons learned in the law, called the 

 king'* justiciary. In this state of things, the poorer class of suitors in 

 the common pleas, between man and man, laboured under the heavy 

 inconvenience of either attending the frequent and distant progresses 

 of the court, or of losing their remedies altogether. This evil, as well 

 as the jealousy entertained by the crown of the ascendancy of tho 

 chief justiciar, who presided over the whole Aula Regis, occasioned the 

 article in Magna Charta, that common pleas should not follow the 

 king's court, but be held in some certain place. This court of Common 

 Pleas thereupon became gradually detached from the Aula Regis, and 

 assumed its present separate form. It has ever since continued its 

 sitting*, without removal from the palace of Westminster or its 

 immediate vicinity, except on a few occasions, in time of plague or 



. :.'... i.-. 



Thu court has by its constitution, an exclusive jurisdiction in all 

 those actions, which, as they concern the right of freehold or realty, 

 are called real, and on this account it is styled by Coke the " lock and 

 key of the common law." The great mass of real actions have been 

 abolished, and of the only three remaining dower, right of dower, 

 and quare impe<lit this court has still exclusive jurisdiction. The 

 Court of Common Pleas had originally also an exclusive jurisdiction 

 in suiU between subject and subject ; but in these personal actions 

 the Queen's Bench and Exchequer of Pleas have long exercised con- 

 current authority. 



Before 1880, the appeal from the judgments of this court was by 

 writ of error to the justices of the King's Bench ; a vestige of superiority 

 resulting to the latter as constituting the remnant of that Aula Regis 

 from which this court as well as those of Chancery and Exchequer 

 have been gradually carved out. But now by statute 11 Geo. IV. & 

 1 Will. IV., c. 70, the judgments of this court can only be reviewed by 

 the judges of the other two superior courts of law, forming a court of 

 error in the Exchequer Chamber ; the further appeal thence is to the 

 House of Lords. 



Betides its ordinary jurisdiction, this court exercises a summary 

 exclusive and final jurisdiction over railway and canal companies, 

 under the statute 17 A 18 Viet c. 81, and is also a court of appeal 

 from the decision of the revising barristers. [ELECTION.] 



The only persons admitted to audience as advocates in the Court of 

 Common Pleas during its sittings in term were, till 1884, serjeants-at- 

 law. [SERJEANT-AT-LAW.] By a royal warrant in April of that year, 

 the right of audience was directed to cease to be exercised exclusively 

 by the serjeants-at-law ; and other counsel were to have an equal 

 right with them so to practise there. Doubts having subsequently 

 arisen as to the authority of the crown to abolish the privilege of the 

 serjeanU, the act 9 & 10 Viet c. 67, was obtained to effect that object. 

 (Blaclut. ' Comm.,' Mr. KBIT'S ed. vol. iii. pp. 29, 44.) 



COMMON RECOVERY. [RKCOVKRY.] 



COMMON, RIGHT OF, in law, is the right of taking a profit in the 

 land of another in common with him, whence the name arises. Su. h a 

 right enjoyed in exclusion of the owner of the land seems not to be 

 properly common, though belonging to several persons tog. 



The profit* which may be the subjects of common are the natural 

 produce of land (or water, which is included in the legal signification 

 of land); such a* grass and herbage, turf, wood, and fish. The com- 

 mon* relating to these subject* are accordingly called common of 

 pasture, turbary, estovers, and piscary. Other things which cannot be 

 called products of land, but rather part of tho land iteelf, as stones and 

 minerals, may alao be the subject* of common right. Rights of way 

 and other accommodations in the land of another, though enjoyed in 

 common, do not bear that name, but are called tattmenti. 



M all common*, that of pasture is the most frequent. It is the 

 right of taking grass and herbage by the mouths of grazing animals. 

 It differs from that general property, which may exist in the rnturt or 

 vegetable produce of the land, without any property in the land iteelf, 

 and which is a corporeal hereditament; whereas all common* are in- 

 corporeal, " as appears," says Blackstone, " from their very definition " 

 an incorporeal hereditament being "a right iasuing out of a thing 

 corporate, or concerning or annexed to the ame." (2 HI. ' Com.' di. .'U 

 Th Mine remark applies to other commons, the subject* of which a* 



for instance woods and mine* may belong a* corporeal hereditament* 

 to one, while the land generally belongs to another. 



Common of turbary is the right of taking turf for fuel ; and common 

 of estovers ia the right of taking irW for fuel, and for the repairs of 

 house*, fences, and implement* of husbandry. These su|>i 

 are called fire bote, house bote (which include* the former), plough 

 boto, and hedge or hay bote. These estovers or bote* may also be 

 taken by every tenant for lit'.' or years from the land which he himself 

 occupies, but they are not thru the gubjucts of comma* rights. 



i '"Mimon of pisoary U the right of /uArry in river* not navigable; 

 the right of fishing in the sea and in navigable rivers being common to 

 all the subjects of the realm. 



The extant of rights of common depends very much upon tie 

 to them. There are four titles on which such right* may be fomicKil ; 

 common right (which seems to be nearly the same thing as the common 

 law), prescription, custom, and grant 



The title by common right arose with the creation of manor*, when 

 land was granted out in fee to be htld of the grantor as lw- 

 grants were forbidden by the statute ' yuia cmptont '.(18 Kdw. I . , 1 ), 

 AS that all commons appondant now existing must have been 

 created before the date of that statute. The law allowed to every 

 such grantee, of course, and of common right, common of jiasture, 

 turbary, estovers, and piscary in the mute of the lord, or that part of 

 his land* which was neither taken by him into his lieuxjtiu or actual 

 occu)utiou, nor granted out by him to others. These implied rights 

 of common 1. e allotted no farther than necessity seemed 



t<> require, and right's of common thus originating are .- 

 nearly within their ancient limit-. Springing from grants 01 

 they were considered a* inseparably <o the land, so th . 



could not be severed from it without extinguishment. Tlic common 

 of pasture wag confined to the purpose of maintaining, from need time 

 to harvest, the cattle of the commoner which were u.-ed )>y him in 

 cultivating his land, an.l which that land would maintain tliroi, 

 winter, or which were, as the law styled it, Itcant and <:'!, a, <t upon it. 

 Horses, oxen, kine, and sheep, used either for tilling or manuring land, 

 were the comuumaUc cattle. The land to which the < 

 appendont must have been originally arable, though the subn 

 change of arable into meadow, Ac., does not ' the right. 



Common of turbary appendout was confined to the purpose of supply- 

 ing fuel for the domestic use of the tenant; and so strictly m< 

 light be still confined within it* ancient limits, that it must be appen- 

 dont to an ancient messuage, and no more turves can be taken under it 

 than will be spent in the house. Conine, appemlant gives, 



as it gave originally, only the right of taking woo< I I.M -tin- n-pair of 

 ancient fences and housi -. ('"inmoii of piacniy appi n< i .1 

 for supplying the tenant's own table with fish, and it mii.-t ! 

 limited to this purpose. 



Commons claimed by prescription (which supposes a grant) may be 

 as various a* grants may be. A right of common thus I'.nindcd may 

 be either annexed to land (when it ia said to be appurtenant), or alto- 

 gether independent of any property in land, when it is said to be i' 

 gnat. If common of pasture, it may be for any kind of animals, 

 whether commonable or not, as swine and geese. The nun 

 animals may be fixed, or absolutely unlimited, and they need not be 

 the commoner's own. 



Common appurtenant may be severed from the land to which it won 

 originally annexed, and then it becomes common in gross. 



The title to common by custom is peculiar to copyholders, and may 

 also give the commoner various modifications of right. 



Right of common of pasture may also be claimed because of vicinage, 

 or neighbourhood. This is where two wastes belonging to di:' 

 lords of manors adjoin each other, without being separated by : 

 The cattle lawfully put upon the one common may then sti 

 rather are excused for straying, into the other. 



The rights of the owner of the soil over which a right of common 

 exists, are all such rights as flow from ownership, and are not incon- 

 sistent with the commoner's right*. 



Right* of common are conveyed, like all other incorporeal hci 

 mcnts, by deed of grant. When they are annexed to land, they will 

 pass with the land by any assurance adapted to transfer the latter. 



Rights of common are liable to be extinguished in several wa\ 

 often contrary to the intentions of parties. It is a rule, that it tin- 

 owner of common appurtenant purchases any part of the land over 

 which the right extends, the right of common is altogether extinguished ; 

 it is the same if he release his right over any part of tho laml. Thi < 

 unreasonable rule however does not extend to common /r i m/mit, 

 though that will be extinguished if the commoner becomes the owner 

 of ail the land in which he has common, and partial extinguishment of 

 the common will follow from u of part of the land. Tho 



enfranchisement of a copyhold to which a right of common is annexed 

 extinguishes the right. 



The most common mode of extinguishing rights of common in 

 modern times is by inclo "( of parliament, and these < 



tions have been systematised by the general inclosure nets, under 

 which commissioners have be. .1 for the purpose of super- 



intending inclosures, and the process rendered much less difficult and 

 ilv was. (See INCLOSIIRE ; also generally on 

 this subject Wo..hy.-li. . <! ' Right* of Common;' Comyn's 'Digest, 1 



