"We are of opinion, therefore, that the evidence of repu-"tation offered in this case was, according to the well estab-"lished rule in the modern cases, inadmissible, as it is in "reality in support of a mere private prescription; and the "number of these private rights does not make them to be "of a public nature.
" Therefore the judgment must be affirmed."
(g) 1 M. & S. 679.
(h) 10 Q. B. 589.
The substance of the argument of the Court appears to be this : Common appendant is not a right of all tenants, but only of certain of the tenants, namely, the tenants of arable land; and being the individual right of some, and not the general right of all, it is not of so public a nature as to warrant the admission of evidence of reputation concerning it.
The authorities cited are : -
1. Note (I) to Mellor v. Spateman (i'). This is as follows: - "Common appendant, being the common law right "of every free tenant of a manor on the lord's wastes (Com. "Dig. tit. Common (B), is confined to such and so many "cattle as the tenant has occasion for, to plough and manure "his laud, in proportion to the quantity thereof."
2. The case of Bennett v. Reeve (k). It is there said - "The reason for common appendant appears to be this, that "as the tenant would necessarily have occasion for cattle, "not only to plough but likewise to manure his own land, "he must have some place to keep such cattle in whilst the "corn is growing on his own arable land, and therefore of "common right (if the lord had any waste) he might put his "cattle there when they could not go on his own arable land. "This is a simple and intelligible reason for this custom, and "is said to be the reason in Co. Litt. 122 a."
3. Comyn's Digest, tit. Common (B). It is there said - "Common appendant is of common right. 1 Rol. 396, 1. 44. "For if a man had enfeoffed others, before the Statute of "Quia Emptores Terrarum, of lauds parcel of his manor, "the feoffees should have common for their commonable "cattle within the wastes, etc. of the lord, as incident to "their feoffment. 2 Inst. 85, 6, per 2 J.; 1 Rol. 396, 1. 45; "4 Co. 37."
The last authority is Lord Coke's Commentary on the Statute of -Morton, which is set out at length in the judgment of the Court.
The substance of the argument of the Court.
Serjeant Williams's note.
(i) 1 Wms. Saund. 346 d. (6th edit.)
(k) Willcs, 227, 281
It is admitted that common appendant cannot belong to any but arable land. It cannot belong to a house, as such, exclusive of any yard or place for cattle, nor can it belong to ancient meadow or pasture, nor to an ancient wood (I), nor to the bed of a river, nor, it is presumed, to the soil of a highway, nor to mines and minerals, of all which there may be tenants. All these are admitted exceptions. But the admission of an exception is not necessarily the destruction of a rule. And it is submitted that, as a rule, in the times of the Normans, all tenant- were tenants of arable land, that the meadow and pasture lands were subservient to the arable, that by land was primarily meant arable land, that the exceptions depend simply on the nature of their subject-matter, and that the rights of the owners of arable land in a manor were the rights of the whole agricultural public in that manor, and, as such, of a sufficiently public nature to make reputation properly admissible in questions concerning them.
A tenant in former times required a house to live in, arable land for his maintenance, pasture for his cattle, acorns for his pigs, and wood for fuel and repairs. Accordingly, in the argument in Hill v. Grange (m), it is said, " Every -"thing is placed in writs by the rule of the register accord-"ing to its dignity; for which reason a messuage is placed "before land, and land before meadow, and meadow before "pasture, et sic de similibus. And everything is ranked "and distinguished in dignity according to its necessary use "in life; for to have a house for a man to dwell in, and to "defend his body against the coldness and inclemency of the "air, is more necessary than to have land to plough for "bread; and to have land for bread is again more neces-"sary than to have meadow for hay for cattle; and to have "meadow for hay, which will serve the whole year, is more "necessary than pasture, et sic de similibus." Here it is said that land is for bread. By "land" is meant "arable land," according to the well-understood meaning of the word in ancient times. And the laud was for bread. Every tenant took land because he desired to live upon the corn it grew. Meadow, pasture or wood, without arable land, was of no use, and therefore not taken alone. The meadow and pasture were required to support the horses, cattle and sheep, by means of which the land was tilled and manured, and the woods in those days were chiefly valuable as affording sustenance for the pigs. Porci inannulati, or unrung pigs, are the objects of frequent animadversion in sundry old court rolls (n). In Domesday Book the meadow land is frequently measured by ploughs. Thus in Kensington (Chenesit) there was land to ten ploughs, meadow for two ploughs, pasture for the cattle of the village, and pannage for two hundred hogs (o). By "meadow for two ploughs" was meant so much meadow as would support the oxen necessary for two ploughs (p). So in the ancient Saxon grants (q), and also in the Norman grauts made prior to the statute of Quia Emptores (r), meadows and pastures are mentioned with other appurtenances as belonging to the land (s). So in the Abbreviatio Placitorum it is recorded that in Michaelmas term, 2 John, Walter de Witifeld recovers his seisin of twenty acres of pasture and forty acres of wood belonging to his free tenement (t).
(I) See Earl of Sefton v. Court, 5 B. & C. 917, 922.
(m) Plowd. 164, 169.