COM 
tie melioration or improvement of the common, as cut¬ 
ting down of bufhes, fern, See. i Sid. 251. 12 Hen. VIII. 
c. 2. Therefore if a common every year in a flood is 
furrounded with water, the commoner cannot make a 
trench in the loil to avoid the water, becaufe lie has no¬ 
thing to do with the foil, but only to take the grafs with 
the mouth .of the cattle. 1 Rol. Abr. 405. 2 Bulft. 116. 
Every commoner may break the common if it be in- 
clofed; and, although he does not put his cattle in at the 
time, yet his right of commonage (hall excufe him from be¬ 
ing a trefpaflerl Lit. Rep. 38. That is, fuppofing the in- 
clolure made by the lord, and that there is not fufticient 
common, or that the inclofure is made by any other per- 
fon than the lord. If a tenant of the freehold ploughs it, 
and lows it with corn, the commoner may put in his cat¬ 
tle, and therewith eat the corn growing upon the land ; 
fo if he lets his corn lie in the field beyond the ufual 
time, the other commoners may, notwithftanding, put in 
their beafts. 2 Leon. 202. The commoner cannot ufe com¬ 
mon but with his own proper cattle; but, if he hath not 
any cattle to manure the land, he may borrow other cat¬ 
tle to manure it, and rife the common with them j for, 
by the loan, they are in a manner made his own cattle, 
i Dativ. 798. Grantee of common appurtenant, for a 
certain number of cattle, cannot common with the cattle 
of a ftranger: he that hath common in grofs., may put in 
a Granger's cattle, and ufe the common with fuch cattle. 
Common appendant or appurtenant, cannot be made com¬ 
mon in grofs : and approvement extends not to common 
in grofs. 2 Injl. 86. A commoner may diftrain beafls put 
into the common by a ftranger, or every commoner may 
bring aftion of the cafe, where damage is received. 9 Rep. 
si. But one commoner cannot diftrain the cattle of ano¬ 
ther commoner, though he may thofe of a ftranger, who 
hath no right to the common. 2 Lutw. 1238. Wherever 
there is colour of right for putting in cattle, a commoner 
cannot diftrain ; where there is no colour he may: fo he 
may diftrain a (hanger’s cattle, but not thofe of a com¬ 
moner, though he exceeds his number. Where writ of 
admeafurement lies, he cannot diftrain. Square, whether 
lie may diftrain cattle furcharged, where the right of 
common is for a number certain. 4 Burr. 2426. 1 Black. 
Rep- 673. 
The ufual remedies for furcharging the common, are 
■either by diftraining fo many of the beafts as are above 
the number allowed, or elfe by an aftion of trefpafs; 
both which may lie had by the lord : or laftly, by a fpe- 
tial action on the cafe for damages, in which any com¬ 
moner may be plantifF. Freem. 273. But the ancient 
and molt effectual method of proceeding, is by writ of 
admeafurement of pafture. This lies, either where a com¬ 
mon appurtenant or in grofs is certain as to number ; or 
where a man has common appendant, or appurtenant to 
his land, the quantity of which common lias never yet 
been afeertained. In either of thefe cafes, as well the lord, 
as any of the commoners, is entitled to this writ of admea¬ 
furement ; which is one of thofe writs, that are called 
*uicontiel, {ilnjl. 369. Finch. L. 314.) being direfted to the 
ftieriff, ( vicecomiti ,) and not to be returned to any fu- 
perior court, till finally executed by him. It recites a 
complaint, that the defendant hath furcharged the com¬ 
mon : and therefore commands the fherifF to admeafure 
and apportion it; that the defendant may not have more 
than belongs to him, and that the plantiff may have his 
rightful fliare. And upon this fuit all the commoners 
fliall be admeafured, as well thofe who have not, as thofe 
who have, furcharged the common ; as well the plantiff 
as defendant. F. N B. 125. The execution of this writ 
muft be by a jury of twelve men, who are upon their oaths 
to afeertain, under the fuperintendance of the ftieriff, 
what and how many cattle each commoner is entitled to 
feed. And the rule for this admeafurement is generally 
underltood to be, that the commoner fliall not turn more 
cattle upon the common, than are fufticient to manure 
and ftock the land to which his right of common is au- 
VOL. IV. No. 245. 
M O N. 86 $ 
nexed; or, as our ancient law etfprefled it, fuel) cattle as 
only are levant and couchant upon his tenement, (Era. 
Abr. 1. Prefcription 28.) which being a thing uncertain 
before admeafurement, lias frequently, though erroneoufly 
occafioned this unmeafured right of common to be called 
a common without flint, or fans nombre, ( Hardr. 117.) 
a thing, which though poflible in law, does in faft very 
rarely exift. Lord Raym. 407. 
If, after the admeafurement has thus afeertained the 
right, the fame defendant furcharges the common again, 
the plaintiff may have a writ of fecond furcharge, (defe~ 
cundd fuperoneratione,) which is given by the ftat. Weffan. 2. 
13 Edw. I. c. 8. and thereby the fherifF' is diredted to in¬ 
quire by a jury, whether the defendant has in fa ft again 
furcharged the common, contrary to the tenor of the laft: 
admealiirement; and if he has, lie fliall then forfeit to the 
king the fupernumerary cattle put in, and alfo fliall pay da¬ 
mages to the plantiff. F. N. B. 126. 2 Fuji. 370. This 
procefs feems highly equitable, for the firfi offence is held 
to be committed through mere inadvertence, and there¬ 
fore there are no damages or forfeiture on the firft writ, 
which was only to afeertain the right which was difputed : 
but the fecond offence is a wilful contempt and injuftief, 
and therefore puniflied, very properly, with not only 
damages, but alfo forfeiture. And herein, the right 
being once fettled, is never again difputed ; but only the 
faft is tried, whether there be any fecond furcharge or no : 
which gives this neglefted proceeding a great advantage 
over the modern method by aftion on the cafe, wherein, 
the quantum of common belonging to the defendant mull: 
be proved upon every frefh trial, for every repeated of¬ 
fence. This injury, by furcharging, can, properly fpeak- 
ing, only happen where the common is appendant or ap¬ 
purtenant, and of courfe limited by law 5 or where, when 
in grofs, it is exprefsly limited and certain ; for where a 
man hath common in grok, fans nombre, or without flinty 
he cannot be a furcharger. However, even where a man 
is faid to have common without flint, ftill there muft be 
left fufticient for the lord’s own beafts. 1 Rol. Abr. 399. 
For the law will not fuppofe that, at the original grant of 
the common, the lord meant to exclude liimlelf. 
There is yet another dillurbance of common, when the 
owner of the land, or other perfon, fo inciofes or other- 
wife obftrufts it, that the commoner is precluded from 
enjoying the benefit, to which he is by law entitled. 
This may be done either by erefting fences, or by driv^ 
ing the cattle off the land, or by ploughing up the foil 
of the common. Cro. F.liz. 198. Or it may be done by 
erefting a warren therein, and Hocking it with rabbits in 
fuch quantities, that they devour the herbage, and there¬ 
by deftroy the common. For in fuch cafe, though the 
commoner may not deftroy the rabbits, yet the law looks 
upon this as an injurious dillurbance of his right, and has 
given him remedy by aftion againfl the owner. Cro. Jac. 
193. This kind of dillurbance does indeed amount to a. 
difleifin, and if the commoner chufes to confider it in that 
light, the law has given him an aftife of novel diiTeiiin e 
againfl the lord, to recover the pofTeflion of his common. 
F. N.'B. 179. Or it has given a writ of quodpermittat^ 
againfl any ftranger, as well as the owner of the land, in 
ca.fe of fuch a dillurbance to the plantiff as amounts to 3. 
total deprivation of his common ; whereby the defendant 
fliall be compelled to permit the plaintiff io enjoy his 
common as he ought. Finch. L. 275, But if the com¬ 
moner does not chufe to bring a real aftion to recover 
feifin, or to try the right, he may (which is the eafier and 
more ufual way) bring an aftion on the cafe for his da¬ 
mages, inftead of an aftife, or a quod permittat. Cre. 
Jac. 195. 
If any commoner inciofes, or builds on the common,, 
every commoner may have an aftion for the damage. 
Where turf is taken away from the common, the lord 
only is to bring the aftion: but it is faid the commoners 
may have an aftion for the injury, by entering on the com¬ 
mon, Si c. 2 Leon, zoi. If a commoner who hath a freq- 
10 L kolti 
