COM 
point they go much farther; common of pafture being 
only a right of feeding on the herbage or velture of the 
foil which renews annually; but common of turbary and 
thole juft mentioned, are a right of carrying away the 
very foil itieif. Thefe feveral fpecies of common do how¬ 
ever all originally refuk from the fame neceftity as com¬ 
mon of pafture ; viz. for the maintenance and carrying 
on or hu(bandry : common of pifcary being given for 
the fuftenance of the tenant’s family ; common of tur¬ 
bary and fire bote for bis fuel; and houfe-bote, plough- 
bote, cart-bote, and hedge-bote, for repairing his houfe, 
his inltruments of tillage, and the neceffary fences of his 
grounds. 2 Coontn. 34, 5. See the article Inclosure. 
COM'lViON, adv. Commonly ; ordinarily.—I am more 
than common tall. Sbakefpeare. 
Ln COM'MON. Equally to be participated by a cer¬ 
tain number.—By making an explicit confent of every 
commoner rieceftary to any one’s appropriating to him- 
felf any part of what is given in common, children or fer- 
vants could not cut the meat which their father or maf- 
tcr had provided for them in common, without ailigning 
to every one his peculiar part. Locke. —Equally with an¬ 
other; indifcriminately.—In a work of this nature it is 
impoffible to avoid puerilities; it having that in common 
with dictionaries, and books of antiquities. Arbuthnot .— 
In law, a djltinCtion of tenancy.—Eftates may be held in 
four different ways; in feveraity, in joint-tenancy, in co¬ 
parcenary, and in common. Tenants in common are fuch 
as hold by feveral and diftinbt titles, but by unity of pol- 
fdfion. Black (1 one. 
To COM'MON, v. n. To have a joint right with others 
in fome common ground. 
COM / MON LAW ,f. Thofe cuftoms and ullages which 
have, by long prelcription, obtained in this nation the 
force of laws. It is diftinguilhed from the Itatute law, 
which owes it authority to acts of parliament.—The mu¬ 
nicipal law of England may with fufficient propriety be 
divided into two kinds; the unwritten or common law, 
the written or ftatute law. Blackflone. 
COM'MON LAW'YER, f. One verfed in the com¬ 
mon law.—Canonifts, civilians, and common lawyers, do 
all admit this diltinilion. Spelman. 
COM'MON PlEAS, f. \_communia placita, Bat.] One 
of the king’s courts now conftantly held in Weftminlter- 
hali; but in ancient time was moveable, as appears by 
Magna Charta,. c. 11. Before this charter of king John 
and Henry III. there were bu t two couits, called the king’s 
courts, viz. the king’s-bench and the exchequer, which 
were then llil'ed curia domini regis, and aula regis, becaufe 
they followed the court of the king; and, upon the grant 
of the great charter, the court of common pleas was ered¬ 
ed and fettled in one certain place, i. e. Weftminller-hall; 
and, after that, all the writs ran quod fit coram juJUciariis 
meis apud Wefim . whereas before, the party was required 
•by them to appear coram one <vel Jufiicijariis meis, without 
any addition of place, &c. But fir Edward Coke is of 
opinion, in his preface to the eighth report, and 1 Inft. 
71. b. that the court of common pleas exifted as a dif- 
tind court before the conqueft; and was not created by 
Magna'Charta, at which time, there were jufiiciarii de 
banco, &c. Though before this ad, common pleas might 
have been held m banco regis-, and all original writs were 
returnable there. According to Madox, the origin of the 
court of common pleas is of a much, later date than that 
affigned by lord Coke. He fo far agrees with lord Coke, as 
ti admit that the MagnaCharta of Henry III. rather con¬ 
firmed than ereded the bank or common pleas ; and that 
fuch a court was in being feveral years before the Magna 
Charta of 17 of king John, though it was then firft made 
ftationary : but, in other reipeds, lord Coke and Mr. Ma- 
•dox differ widely; for the latter thinks -.that, tome time 
after the conqueft, there was one great and fupreme judi¬ 
cature, called the curia regis, which lie iuppoies to have 
been of Norman, and not Anglo-Saxon, original, and to 
jbave exercifed jurifdidiou ovjr common, as well as other, 
COM 867 
pleas; that the common pleas and exchequer were gra¬ 
dually feparated from the curia regis, and became jurif- 
didions wholy diftind from it; and that the reparation 
of the common pleas began in the reign of Richard I. or 
early in the reign qf king John, and was completed by 
Henry III. Mad. Hifi . Excb. 63. 539. fo. ed. 
Writs returnable in this court, are now coramjufiicia- 
riis nofir is 'apud Wefim. But original writs, &c. returnable 
in the court of king’s-bench, are, coram nobis ubicunque 
fuerimus in Anglia. The jurifdidion of the court of com¬ 
mon pleas is general, and extends itfelf throughout Eng¬ 
land ; it holds plea of all civil caufes at common law, be¬ 
tween fubjed and fubjed, in adions real, perfonal, and 
mixed ; and it feems to have been the only court for real 
caufes. In perfonal and mixed adions it hath a concur¬ 
rent jurifdidion with the king’s-bench ; but it hath no 
cognizance of pleas of the crown ; and common pleas are 
all pleas that are not fuch. 
The court of common pleas does not poifefs any ori¬ 
ginal jurildidion ; nor has it, like the court of king's- 
bench, any mode of proceeding in common cales peculiar 
to itfelf. Its authority is founded on original writs ifiu- 
ing out of the court of chancery; which original writs 
ate the'king’s mandates for the court to proceed in the 
determination of the caufes mentioned therein. The rea- 
Ibn of original writs iffuing out of chancery is, becaufe 
when the courts were united, which was formerly the cafe ff 
the chancellor held the feal; therefore, when they were 
divided, he, ftill keeping the feal, fealed all original writs,, 
Cilb. H. C. P. In all perfonal adions, therefore, brought 
by and againft common peifons, the only way of pro¬ 
ceeding in this court is by original. There is, indeed, 
one other way of proceeding in this court, in common 
cafes, which is fometimes.uled; and which is called pro¬ 
ceeding by original qitare claufum fregit . This method of 
proceeding is grounded, in point of law, upon the fame 
kind of original writ as the ufual proceeding by capias is,, 
the only difference between them being in the mefne pro- 
cefs after the original is fued out, or at leaft fbppofed lb 
to be. Inftead of the procels to compel the appearance 
of the defendant being by capias againft his perton, it is 
in this cafe by lit minions and diftrels againft bis goods. 
In a word, it is the fame as the ancient mode of proceed¬ 
ing in this court was before the general introdpdion of 
the capias. See the article Capias. The advantage and 
life of this mode of proceeding by original quare claufum' 
fregit, is where the defendant has effefts which can be dif- 
trained, but he himfelf cannot be met with to be perfofi- 
ally ferved ; the procels by capias requiring perfonal fir- 
vice, which is not required in the procefs by liimmons. 
All actions belonging to this court come hither either by 
original, as arreits and outlawries, or by privilege or at¬ 
tachment, for or againft privileged perlons ; or out of 
inferior courts, not of record, by pone, recordare, accedas' 
ad.curietm, writ of falfe judgment, &c. Abiions popular, 
and abtions penal, of debt, &c. upon any ftatute, are cog¬ 
nizable by this court; and befides having jurifdiftion for 
punifhment of its officers and minifters, tfte court 6f.com- 
mon pleas may grant prohibitions, to keep temporal and 
eccleliaftical courts within due bounds. In this court are 
four judges, created by letters patent; the feal of the court 
is committed to the cultody of the chief juftice. 
The other officers of the common pleas are the cuftos 
brevium, three prothonotaries and their iecondaries, the 
clerk of the warrants, clerk of the effoins, fourteen fila- 
zers, four exigenters, a clerk of the juries, the chirogra- 
pher, clerk of the king’s lilver, the clerk of the trealury, 
clerk of the leal, of outlawries, and the clerk.of the in- 
roliment of fines and recoveries, clerk of the errors, &c. 
The cuftos brevium is the.chief clerk in this court, who 
receives and keeps ail writs returnable therein ; and all 
records of nili prius, which are delivered to him by the 
clerks of the afiize of every circuit, &c. and he files thfe. 
roils together, and carries them into the trealury of re¬ 
cords 3 fie idfo makes out exemplifications, and copies of 
