vS$4 '• CO M 
plough, had at firft, by the curtefy orpermiffion of the 
lord, common in his wattes for necell'ary beafts to eat and 
compoit his land, and that-for two caul'es; one, for that 
it was tacitly implied in the feoffment, by reafon the feof¬ 
fee could not till or compoft his land without cattle, and 
cattle could not be fuftained without pafture ; fo by con¬ 
sequence the feoffee had, as a thing neceffary and inci¬ 
dent, common in the wafte and lands of the lord ; and 
this may be collected from the ancient books and ftatutes; 
and the lecond reafon of this common was, for the main¬ 
tenance and advantage of tillage, which is much regarded 
and favoured by the law. 4 Rep. 37. 
Common pur caufe de vicinage, common by reafon of 
neighbourhood ; is a liberty that the tenants of one lord 
in one town have to common with the tenants of another 
lord in another town ; it is where the tenants of two lords 
have ufed, time out of mind, to have common promilcu- 
oufly in both lordfhips lying together and open to one 
another. 8 Rep. 78. And thole that challenge this kind of 
common, which is ufually called inttrccmmorting , may not 
put their cattle in the common of the other lord, for then 
they are diftrainable; but they may turn them into their 
own fields, and if they ftrav into the neighbouring com¬ 
mon, they mud be fuffered. Terms de Ley. The inhabi¬ 
tants of one town or lordlhip may not put in as many 
beads' as they will, but with regard to the freehold of the 
inhabitants of the other; for otherwile it were no good 
neighbourhood, upon which all this depends. If one lord 
in doles the common, the other town cannot then com- 
mon'i but, though the common of vicinage is gone, com¬ 
mon appendant remains. 4. Rep. 38. Every common per 
caufe de vicinage is a common appendant. 1 Dan-v. Abr. 
799. This .is, indeed, only a permifiive right intended to 
excufe what in ftriiStnels is a trefpafs' in both, and to pre¬ 
vent a multiplicity of fuits. And therefore either townflii'p 
may in dole and bar but the other; though they have in- 
tercommoned. time out of mind. 2 Comm. 34. 
Common appendant is only to ancient arable land, not 
to a houle, meadow, pafture, &c. It is againft the nature 
of common appendant to be appendant to meadow or paf¬ 
ture ; but, if in the beginning land be arable, and of late 
u lioufe hath been built on fome part of the land, and 
Tome-acres are employed to meadow and" pafture, in fuch 
cafe it is appendant ; though it mull be pleaded as ap¬ 
pendant to the land, and not to the houle, pafture, See. 
1 Nelf. Abr. 457. This may be common appendant, though 
it belongs to a manor, farm, or plough-land ; and com¬ 
mon appendant is of common right; but it is not com¬ 
mon appendant, twrlels it has been appendant time out of 
-mind. 1 Dativ. 746. It may be upon condition, for 
all the year, or for a certain time, or for a certain number 
of beafts, &c. by ufage; though it ought to be for fitch 
cattle as plough and compoft the land to which it is ap¬ 
pendant. Common appendant may be to common in a 
field after the corn is fevered, till the ground is re-fowr,; 
io it may be to have common in a meadow after the hay 
is tarried off the lame, till Candlemas, &c. Yelv. 185. 
This common, which is in its nature without number, 
by cuftom may be limited as to the beafts ; common ap¬ 
purtenant ought always to be for thole levant and couch- 
ant, and may be fans number. Plo-ivd. 161. A man may 
preferibe to have common appurtenant for all manner of 
cattle, at every fealon in the year. 25 AJf. 8. Common by 
prefcription for all manner of commonable cattle as be¬ 
longing to a tenement, &c. muft be for cattle levant and 
couchant upon the land, (which is fo many as the land 
will maintain,) or it will not be good; and, if a perfon 
grants common fans number, the grantee cannot put in fo 
many cattle, but that the grantor may have. fufficient 
common in the fame land. 1 Dam>. Abr. 798, He who hath 
common appendant or appurtenant, can keep but a num¬ 
ber of cattle proportionable to his land ; for he can com- 
ynon with no more than the lands to which his common 
belongs is able to maintain, 3 Saift. 93. Cpmmon appur¬ 
M O N. 
tenant may be to a houfe, pafture, Sec. though Comma® 
appendant cannot; but it ought to be prelcnbed for a.s 
.againft common right; and uncommonable cattle, as hogs, 
goats. Sec. are appurtenant: this common may be created 
by grant at this day; fo may not common appendant. 
1 Inf. 122. Common appurtenant for a certain number 
of beafts may be granted over. 1 Danv. 802, By 33 Geo. 
III. c. 81, rams are not to remain on commons from tile 
25th of Auguft to the 25th of November. 
The property of the foil in the common is entirely in 
the lord; and the ufe of it jointly in him and the com¬ 
moners. Lords of manors may depafture in commons 
where their tenants put in cattle; and a prefcription to 
exclude the lord is againft law. 1 Inf 122. The lord 
may agift the cattle of a Itranger in the common by pre¬ 
fcription; and he may licenfe a ftranger to put in his cat¬ 
tle, if he leaves fufficient room for the commoners, s 
Danv. 795. Al’fo the lord may lurcharge an overplus of 
the common; and if, where there is not an overplus, the 
lord furcharges the common, the commoners are not to 
diltrain his beafts ; but muft commence an afilion againft 
the lord. But it is faid, if the lord of the foil put cattle 
into a clofe, contrary to cuftom, when it ought to lie frelb, 
a commoner may take the cattle damage feafant; other- 
wife it is a general rule that he cannot diltrain the cattle 
of the lord. 1 Dan-v. 807. The lord may diltrain where 
the common is furcharged-; and bring action of trefpals 
for any trefpafs done in the common. 9 Rep. 113. A lord 
may make a pond on the common ; though the lord can¬ 
not dig pits for gravel or coal, the ftatutes of approve¬ 
ment extending only to inclofure. 3 Inf. 204. If the lord 
makes a warren on the common, the commoners may not 
kill the conies; but are to bring their action, for they 
may not be their own judges. 1 Rol. 90. 405. 
By the ftatute of Merton, 20 ilen. III. c. 4. lords may 
approve againft their tenants, viz. indole part of the walte, 
and thereby difcharge it from being common, leaving 
common fufficient 5 and neighbours, as well as tenants, 
claiming common of pafture, lhall be bound by it. If 
the lord inclofes on the common, and leaves not common 
fufficient, the commoners may not only break down the 
inclofures, but may put in their cattle, although the lord 
ploughs and fows the land. 2 Inf. 88. 1 Rol. Abr. 406'. 
Where the tenants of the manor have a right to dig gravel 
on the waftes, or to take eftovers, there the lord -has no 
right under the ftatute of Merton, to inclofe. and approve 
the waftes of the manor. Yet a cuftom in a manor that: 
any perfon being defirous of inclofing, may apply to the 
court, Sec. firft obtaining the confent of the lord, does not 
abridge the lord’s common-law right of inclofing without 
any fuch application, provided he leave common fufficient 
for the tenants. 2 Term Rep. 391. By 29 Geo. II. c. 36, 
owners of common, with the confent of the majority, in 
number and value, of the commoners; the majority c c 
the commoners, with confent of the owners ; or any per¬ 
sons with the confent of both, may inclofe any part of a 
common for the growth of wood. If the wood is deftroy.- 
ed, the offender may be puniflied according to i Geo. L 
c. 48. if not convidled in fix months, the owner fliall have 
fatisfaftion from the adjoining parilhes, as for fences over¬ 
thrown, by flat. Weftm. 2. Perfons cutting wood on com? 
mons fliall incur the fame penalty. And, by 31 Geo. II. 
c. 41. the recompence is to be paid to perfons infereftedy 
in proportion to their interelf. Tenants for life, or for 
years determinable on lives, may confent for their term ; 
but that binds not, after determination of their eftate. 
A commoner hath only a Special and limited intereft 
in the foil, but yet he fliall have fuch remedies as are 
commenfurate to his right, and therefore may diltrain 
beafts damage-feafant,. bring an aftiop on the cafe, Sec. 
but not being ablolute owner of the foil, he cannot bring 
a general action of trefpafs for a trefpafs done upon the 
common. Eridg. 10. Godb. 123. 0. Leon. 201. A commoner 
cannot regularly do any thing on the foil which tends; to 
