Writ of novel disseisin of common of pasture.
The remedy ascertained the right.
(z) P. 866 of fol. edit, by Record Commissioners. (a) Vol. 2, p. 179.
(b) Fitz. Nat. Brev. vol 2, p.
In the case of Lord Dunravcn v. Llewellyn, the lord who claimed the land in dispute as part of the waste tendered, as we have seen, evidence of reputation - that so it was considered by the commoners. This evidence was rejected, and the commoners were not considered as a body or class, because certain tenants only - namely, the tenants of arable lands - have by law a right to common appendant. If, however, the dispute had been between the rector of the parish and an occupier of arable land, with respect to a parochial modus payable in lieu of great tithe, evidence of reputation would have been clearly admissible (c). And yet the question would have been one which did not concern every occupier of land in the parish, for the occupier of pasture land paid no great tithe. The tithe of agistment of pasture was a small tithe only (d). This exception, however, arising as it did from the nature of the subject of occupancy, did not prevent the other occupiers from being treated as a class. So in the case of common appendant, the exceptions which arise from the nature of certain holdings should not prevent the claimants, who all claim under one common title - namely, a right given by the law itself - from being considered as a class of persons, with respect to whose rights evidence of reputation is admissible.
If the commoners who claimed common appendant for their commonable beasts had claimed by the custom of the manor a right to put on the waste beasts not commonable, such as geese and pigs, evidence of reputation would have been admissible on the ground that a custom was in dispute (e). But such evidence is admissible in the case of a custom solely on the ground that a custom affects a class or body of persons in a particular place (f). Can it be said that the commoners are less a class when the custom of the manor coincides with the common law, which is the general custom of the realm, than when it differs from it?
(c) White v. Lisle, 4 Mad. 214, 225.
(d) 1 Eagle on Tithes, 44.
(e) Damerell v. Proiheroe, 10
Q. B. 20; Priehard v. Powell, 10 Q. B. 589, 603, as explained in Lord Dunraven v. Llewellyn, ante, p. 466.
It may be said that common appendant at the present day is comparatively rare, that many such rights have now become extinguished, and that, supposing a single right to remain in a manor, ought evidence of reputation to be given in support of it? The answer is, that this depends upon the manner in which the claimant frames his claim. He may choose to rely on his continuous enjoyment of the right of common in respect of his tenement, and in that case he will have the benefit of the provisions and also be liable to the limitations of the Prescription Act (g); but will not be able to avail himself of the former exercise of similar rights in respect of other tenements holden of the same manor. If, however, he claim his common as appendant, there seems no reason why, in relying on a general right, he should not have the benefit of evidence of reputation as to similar rights once existing but now extinct. Reputation is admissible as to the boundaries of a manor, and none the less though the manor as such has ceased to exist (h). The cesser, therefore, of any general right ought not to prevent the admission of evidence of reputation as to its former existence. The cases as to customs afford an analogy. If all the copyholds but one, parcel of a certain manor, should become extinct, the tenant of that one may, if he pleases, allege a customary right of common as belonging to that tenement only (i); but in that case he cannot adduce evidence of the enjoyment of a similar right by other tenants of the same manor (k). He must prove the custom as he alleges it (l). He may, however, if he pleases allege the right as belonging by custom to all the customary tenements of the manor (m), and in that case evidence as to the other tenements will be admissible in his behalf; but at the same time he will expose his claim to be met by evidence relating to any other tenement in the manor standing in the same situation as his own (n).
Extinguishment of rights.
(f) Jones v. Rubin, 10 Q. B. 581, 583, 620, 635.
(g) Stat. 2 & 3 Will. IV. c. 71.
(h) Steel v. Prichett, 2 Stark. 463; Doe d. Molesworth v. Slee-man, 9 Q. B.298; and See Barnes v. .Manson, 1 Mau. & Sci. 77.
(i) Bac. Abr. tit. Copyhold (E); Foiston and Crachroode's case, 4 Rep. 31 b.
(k) Wilson v. Page, 4 Esp. 71.
For these reasons the author is of opinion that the case of Lord Dunraven v. Llewellyn was, on the point in question, wrongly decided. There was another point decided, namely, this, that evidence of actual exercise is not essential to the admission of evidence of reputation. With this decision the author has no fault to find.
(l) Dunstan v. Tresider, 5 T. Rep. 2.
(m) See Potter v. North, 1 Wms. Saund. 346, 348; 1 Lev. 268.
(n) 1 Scriv. Cop. 597, 3rd edit.; Cort v. Birliheelt, 1 Doug. 218, 219, 223; Freeman v. Phillipps, 4 Mau. & Sel. 486, 495.