principles of law, and those principles, as I understand for sale. Copyholders can only take the produce of the waste for Produce not their necessary uses on their tenements, and not for sale to be taken or profit (g). But in some cases of grant or prescription, which do not extend to copyholders, the commoner, who is entitled to a certain amount of pasture, or other profit, may sell or let his right (h). right. The copyholder's rights of common may be restricted in Limitations of many various ways, besides the limitation of the quantity measured by the necessities of the tenement, or by some other customary measure of quantity. In some manors the freeholders have their pasture upon one part of the waste, and the copyholders on another part (i). The copyholder's right of pasture may be stinted to a particular number of cattle, or to certain kinds of cattle, as to commonable cattle in the strict sense of the word, including (f) See Fitz. Abr. Prescription, 51, and Hoskins v. Robbins, Pollexf. 13, 21. (g) Valentine v. Penny, Noy, 145; Hayward v. Cannington, 2 Keb. 290, 311; and see De la Warr (Earl) v. Miles, 17 Ch. Div. 535. (h) Daniel v. Hanslip, 2 Lev. 67; which are used in Where the waste only the cows, oxen, horses, and sheep, ploughing and manuring the land (j). is part of an ancient forest, it is unusual for the privilege to extend to sheep, and hogs, goats, and geese are excluded (k). The right may also be limited as to the time of enjoyment, as that the waste or commonable ground shall only be depastured at certain times of the year (1), and there is frequently a custom for the homage to make bye-laws for the management and regulation of the common from time to time (m), and so with the other rights of common above described, the custom of the manor determining in each case, whether the wood, peat, &c., is to be taken at all times, or at certain seasons, and whether over the whole of the waste where the products are found, or in places to be assigned by the lord, and whether at the commoner's discretion, or after "view and delivery by the bailiff," or the like. It will also be remembered, that the rights of taking estovers, minerals, and the like, do not extend over the whole waste as seems to have been at some time supposed, but are confined to those places where the produce is actually found, and in this respect are unlike common of pasture, "which extends to every spot on which there is food for cattle, and also to every spot across which the cattle may wander in search of food" (n). In most places the customary rights of common are confined to ancient copyhold tenements, the tenants of new copyholds created under a custom being excluded from pasture, and the owners of new houses being excluded from taking turf for fuel, and the like; but a new house built upon an ancient site is regarded as having the (j) Morley v. Clifford, 20 Ch. Div. 753. (k) Manwood, Laws of the Forest, 3rd ed., 222; Williams, Commons, 232. (1) See Standred v. Shorditch, Cro. Jac. 580; Musgrave v. Cave, (m) See Fox v. Amhurst, L. R. 20 Eq. 403. (n) Per Patteson, J., in Pearson v. Underhill, 16 Q. B. 120, 125. privileges of the ancient tenement (o). It has been said, however, that a custom for the tenants of houses, whether new or old, to have estovers might be upheld as reasonable (p). freehold In the next place, mention may be made of the rights of Rights of common which the free tenants of a manor may have over tenants over the waste. There is no doubt that freeholders may have waste. many rights over the waste, besides their common of pasture appendant, similar to those which have been described as belonging by custom to copyholders; but there is a distinction between the nature of their claims. Copyholders, as has been seen, can allege a custom in the manor. "The freeholder, however, stands upon the presumed grant of his freehold, and he prescribes for himself and all those in whose interest he stands to have the use of certain things which for a time beyond legal memory have been attached to the land which he has as freeholder " (q). Of the rights of common which freehold tenants of Common appendant. a manor may possess, the most important is that kind of common of pasture which is known as common appendant. It is so called because on every original feoffment of arable land to be held of the manor in socage the law without express words presumed a grant of sufficient pasture on the waste appendant or belonging to the land for the commonable beasts levant and couchant thereon. "The reasons for this presumption were that in the scarcity of meadows and enclosed pastures which prevailed in early times, the tenant might otherwise have been without pasture for his cattle when the crops were in the ground, and generally for the advancement of tillage which was much favoured in law; the socage tenants were, moreover, frequently bound by their tenure to assist in cultivating the lord's demesnes and to keep cattle for that purpose, which could not be conveniently pastured on their own lands throughout the year" ("). Although the right is in fact prescriptive in its nature, the prescription should not be specially pleaded, as it is implied in the legal definition of the term "appendant" (s). Further, as has already been indicated, this right of common is only appendant to land which can be taken to have been anciently arable, and not to any land which can be shown to have been approved within time of memory (t); and, as the right is held to be an incident of the original tenure, it must be taken to have been already in existence when the creation of new tenures was forbidden (u). There is accordingly a double limitation of time implied in the definition of common appendant: "it must not only be an immemorial right which would by the provisions of the Prescription Act be proved by a thirty years' user, and be rendered indefeasible by a user for sixty years, but it must also have existed before the date of Quia Emptores. A proof, therefore, that the land in question was first brought into cultivation or was in the full ownership of the lord at any period subsequent to that statute, will necessarily upset a user for sixty years or more. At first sight this appears to contradict the language of the Prescription Act, but it must be remembered that upon such proof it will be evident not only that the right was created within time of memory, which would be unimportant, but that it has never been common appendant during the period of user" (x). Freehold tenants may also have by grant or prescription common of pasture appurtenant, whether their lands have been held by the lord within time of legal memory or not, common of estovers, common of turbary, as well as rights of digging sand, gravel, clay, and occa (») Elton, Commons, 48; and see Tyrringham's Case, 4 Rep. 36 b, 37a; Bennett v. Reeve, Willes, 227, 231; Musgrave v. Cave, ibid. 319. (8) Co. Litt. 121 b, 122 a; Grymes v. Peacock, 1 Buls. 17. (t) Ante, p. 251; Yearb. Trin. 26 Hen. VIII. fo. 4, pl. 15. (u) See Tyrringham's Case, 4 Rep. 36 b. (x) Elton, Commons, 50. rights of sionally coal, in the lord's waste, and common of piscary in the lord's streams or ponds (y). In general these rights Limit of are limited, in the absence of express provision, either by common the requirements of the tenant in each case, or by some belonging to quantity fixed by usage (z). Common of pasture appur- tenants. tenant is not confined to beasts which plough and manure the land, but may be extended to hogs, goats and geese (a); and it may be created at the present day (b). freehold common in gross. In addition to the rights of common already mentioned, Rights of there may be other rights of a similar nature existing independently of the enjoyment of any tenement held of the manor (c). Such rights are termed rights of common in gross, and may be created either by grant or by long usage and acquiescence implying a grant. They are but rarely claimed by private persons, but corporations have in many instances claimed that they and their predecessors have from time immemorial exercised such rights (d). Claims of this kind are not within the provisions of the Prescription Act (e), and are therefore liable to be defeated. by proof that the right claimed was first taken or enjoyed at any time within legal memory. An exclusive right of pasturage has been established as belonging to a corporation through the immemorial exercise of such right by the predecessors of the corporation, not as a right of common annexed to lands within the borough, but as a right belonging in gross to the corporation and differing from a right of common (f). If a single burgess wishes to claim the benefit of a grant of a right of common to a corpora (y) Elton, Commons, 62, 83, 98, 105, 109. (z) See Bracton, iv. fos. 222, 228, 231; Fleta, iv. chaps. 19, 25; Heyward v. Cunington, 1 Sid. 354; Benson v. Chester, 8 T. R. 396; Clayton v. Corby, 5 Q. B. 415. (a) Co. Litt. 122 a; Smith v. Feverell, 2 Mod. 6; Dunraven (Earl) v. Llewellyn, 15 Q. B. 791, 811. (b) Cowlam v. Slack, 15 East, 108. (e) Elton, Commons, 76, 86, 98, 105. (d) Williams, Commons, 9. (f) Johnson v. Barnes, L. R. 8 |