Distress. Tithes.

The Statutes of Merton and Westminster the second.

The lord's freemen.

(c) Com. Dig. tit. Distress (C); 2 Inst. 132.

(d) 1 Eagle on Tithes, 289,290. (e) Stat. 20 Hen. III. c. 4.

(f) Stat.l3 Edw.I.c.46. And see stat. 3 & 4 Edw. VI. c. 3, s. 2. (g) Mad. Form. Angl. No. 303, p. 184.

The fact that when "land" is spoken of in legal instruments arable land is always understood, unless the contrary appears, shows the importance attached to arable land, and tends to prove that the tenants of the arable lands in a manor were not merely certain individual tenants, but were in ancient times all the tenants as a class. When every tenant held and lived upon arable land, nothing could be more natural than that by the word "land" arable land should be primarily understood.

The exceptions to the rule, that common appendant is the common law right of every free tenant of a manor, depend simply on this, that the special nature of certain subjects of tenure renders common appendant inappropriate to their enjoyment. Common appendant was the right which every free tenant of arable land had, by the common law, to depasture upon the lord's wastes all cattle subservient to the tillage and manurance of such land, namely, horses, kine and sheep, which are thence called commonable beasts; and the number of beasts to be put upon the common was as many as were levant and couchant upon the land, - that is, as many as the land was capable of maintaining on it by its produce through the winter. Common appendant could not be claimed in respect of a bouse without any curtilage or yard; for it was truly said, "beasts cannot be rising and lying down on a house, unless it be on the top of the house" (l). But a curtilage was supposed to belong to a house or cottage unless the contrary appeared (m). So common appendant could not be claimed in respect of ancient meadow or pasture; for the meadow and pasture itself helped to depasture the beasts which tilled and manured the arable land to which it belonged; and meadow and pasture did not require beasts to till it. The tenant who had pasture laud of his own would not require to put so many cattle on the lord's wastes; and by custom common appendant might be limited to a certain number of beasts (n). But the fact that the tenant might feed his beasts elsewhere did not destroy his claim to common appendant (o); and even if arable land was converted into meadow or pasture, the right to common appendant still remained, for the land might be ploughed up again (p). In some cases the meadow land was periodically allotted to the owners of the arable land in the manor, giving rise to an exceptional estate of inheritance peculiar to meadow land. The freehold was not in the lord, but in the tenants (q); and a feoffment by the tenant of the allotment for the time being allotted to him was sufficient to pass his interest in the whole of the mead (r). Meadow or pasture land is then, from its nature, an exception to the ordinary rule which gives common appendant of common right to every freehold. But such exceptions as these do but illustrate and confirm the rule, that of common right every freeholder is entitled to common appendant in the lord's wastes.

Land menns arable land.


Commonable beasts.

(h) Abbrcviatio Placitorum, p. 32.

(i) Mad. Form. Angl. No. 153, p. 83.

(k) Mad. Form. Angl. No. 341, pp. 258, 259. See also No. 361, pp. 274, 275.

No common for a house.

No common for ancient meadow.

Lot mead.

(l) 2 Brownlow, 101; Scholes v. Hargreaves, 5 T. Rep. 46; Benson v. Chester, 8 T. Rep. 396.

(m) Com. Dig. tit. Common (B).

(n) 1 Rol. Abr.tit.Common(G), 4; Com. Dig. tit. Common (B).

(o) Year Book, 17 Edw. III., 34 b; 1 Rol. Abr. tit. Common

(p) Tyrringham's case, 4 Rep.

36 b, 37 b; Carr v. Lambert, Law-Rep., 1 Exch. 168.

(q) Welden v. Bridgewater, Cro.Eliz.421; Moor, 302; Co.Litt. 4 a; Rol. Abr. tit. Estate (C). See also Archaeologia, vol. 23, p. 275; vol. 35, p. 470; Case and opinion. of Sir Orlando Bridgman, 12 Jur., X. S., pt. 1, p. L03; and see Pate v. Bronmlow, 1 Keble, 876.

(r) Co. Litt. 48 b.

The authorities above cited from Williams's Saunders, Willes's Reports, and Comyn's Digest (s), are strictly in accordance with the principles above stated. And Lord Coke's Commentary on the Statute of Merton, which is cited at length by the court in the judgment in Lord Dunravert v. Llewellyn (t), so far from shaking these authorities, evidently confirms them. The court, however, says, that common appendant is not a common right of all tenants, but belongs only to each grantee, before the statute of Quia Emptores, of arable land by virtue of his individual giant, and as an incident thereto, and is as much a peculiar right of the grantee as one derived by express grant or by prescription. But the principle that common appendant is not a peculiar right, but the common right of all tenants, is not only asserted by the authorities above mentioned, and consistent with the language of the legislature and of ancient documents, but it has produced doctrines of law which are undeniable, and which turn solely on the distinction that this kind of common is of common right, whilst other kinds are not. These doctrines are two. First, because common appendant is of common right, therefore a man need not prescribe for it (u). Lord Coke, who lays down this doctrine, had previously said that appendants are ever by prescription (x). Mr. Hargravc, in his note, reconciles the two doctrines thus: that "as appendancy cannot be without prescription, the former always implies the latter; and therefore, if one pleads common appendant, it is unnecessary to add the usual form of prescribing" (y). In other words, common appendant is not a peculiar right belonging to each grantee, but a common right belonging to all, and so well known to the law as such, that it is sufficient in pleading merely to mention its name, without entering into a more minute description. Had it been a peculiar right belonging to each grantee, it would have been necessary to set it out, the tenant claiming that he, and all those whose estate he had, from time immemorial used to place so many beasts of such a kind upon such a common. In this respect common appendant resembles the customs of gavelkind and borough English, which are known to the law and need not be particularly described, whereas any other customary mode of descent requires to be particularly stated (z). Secondly, " If a man purchase part of the land wherein common appendant is to be had, the common shall be apportioned because it is of common rigid; but not so of a common appurtenant, or of any other common of what nature soever"(a). Here common appendant is distinguished from all other kinds of common, on the simple ground of its being of common right or a right given by the law. Tyrringham's case (b) turned on this distinction. The tenant there lost his common by claiming it as annexed to meadow and pasture; whereby was understood ancient meadow and pasture, to which, as we have seen (c), common cannot be appendant. Common may, however, by a grant or prescription, be appurtenant to meadow and pasture; and such in this case it was held to be. The owner of part of the land over which the common was claimed, purchased the premises in respect of which it was claimed, and then demised them to the plaintiff, who put in two cows into the residue of the land over which the right of common had existed. The defendant, who was the farmer of the owner of this land, with a little dog drove out the cows; and it was held that he was justified in so doing. By the union of part of the land wherein the common was to be had with the premises in respect of which it was to be had, the entire right of common was destroyed, because it was merely common appurtenant. "Forasmuch as the court resolved that the common was appurtenant and not appendant, and so against common right, it was adjudged that by the said purchase all the common was extinct" (d). Common appurtenant is against common right because it depends upon a special grant, either expressed or implied from long usage; and the law accordingly allows it to fail altogether whenever it cannot be exercised in its integrity. But common appendant, being of common rigbt, a right common to every freeholder, is favoured by the law, and allowed to be apportioned on the union of the tenements in respect of which it is claimed with part of the lands over which the right is exercised. Had the common been appendant in Tyrring-ham's case, it is clear that the court would have held the plaintiff justified in putting in an apportioned number of cattle on the residue of the lands over which the right of common originally existed.