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the best and most substantial tenant of the said tene. ment at any time within the memory of man had kept upon the waste. And then the lord might approve, leaving sufficient common according to such rate.

747

Fawcett vi

$ 62. It is laid down by Lord Chief Justice Willes, Strickland, and the other judges of the court of common pleas, Com. Rep. 577. that, although a lord of a manor cannot, by virtue of 6 Term Rep. the statute of Merton, inclose and approve against com

mon of turbary ; yet, that where there is common of pasture and common of turbary in the same waste, the common of turbary will not hinder the lord from inclofing against the common of pasture; for they are two distinct rights.

Ante 959.

2 Term R. 391, 392 n.

§ 63. Although the custom of a manor authorizes the commoners to inclose a part of the waste under certain circumstances ; yet this does not take away the lord's right of approving under the statute of Merton, provided he leave common sufficient for the tenants.

Clarkson v. Woodhouse, 5 Term R. 412 n.

$ 64. In a modern case, the court of king's bench held, that a custom, authorising the owners of ancient messuages within a manor to have certain portions of the common called moss dales assigned to them in severalty, for digging turves, and after clearing them of turves, to approve them, and hold them in severalty discharged from all right of common, was good in law.

Shakespear v. Peppin, 6 Term R. 741.

$ 65. Where commoners have some other right on the common, beside that of pasture, as of digging

fand, fand, &c., the lord may, notwithstanding, approve, if he leave fufficient common of pasture, and if fuch inclosure be no interruption to the enjoyment of the other kind of common.

$ 66. Athough the statutes of Merton and Wes- Glover v.

Lane. minster speak of the lords of manors, as the only per. 3 Term R. fons enabled to approve of commons; yet it has been 4+5. determined in a modern case, that any person, who is feifed in fee of a waste within a manor, may approve, leaving a sufficiency of common : for otherwise not half the wastes in the kingdom could be approved; as many of the places, that are called manors, would Tit. 1. $ 13; not be found such in point of law, if the matter were strictly examined. And Lord Kenyon observed, that, though in the statutes of Merton and Weftminster 2, only the lord is mentioned, yet in those days there was a paucity of expression in acts of parliament; and the lord of the manor is put as the owner of the soil, where they stand in the fame predicament : and a contrary decision would be ruinous indeed, and extremely prejudicial to the public.

$ 67. The court of chancery will allift and protect a lord of a manor, in approving a common under the statute of Merton.

9. 68. There having been an inclosure made out of Weekes v.

Slake, a common, and young wood and timber growing

2 Vera. 305. thereon, and the plaintiff insisting that it was an approvement within the statutes of Merton and Weft. minster 2.; the court thought fit to continue the injunction, and directed a trial to be had at the next

aflizes,

aflizes, whether sufficient common was left for the tenants.

Arthington v.
Fawkes,
2 Vern. 356.

$ 69. The lord of a manor having inclosed part of a common, and the tenants by force throwing open the inclosures, brought his bill to quiet him in poffeffion; furmising he had only improved according to the statute of Merton, and had left a sufficiency of common; but that some of the defendants, although they pretended to have a right, were not intitled to intercommon upon the waste in question.

Upon the hearing, two issues were directed to be tried at law: ist, as to some of the defendants, whether they had a right of common; then 2dly, whether there was sufficient common left, beyond what was inclosed. And the injunction was continued in the mean time, although it was a new inclosure, and made not above two years before the bill exhibited.

Palmer,
5 Vin. Ab. 7.

$ 70. Upon a bill, brought in chancery by the tenants of a manor against the lessee of the lord, to establish their right of common of pasture, and for an injunction against the defendant for inclusing part of the common ; Lord C. King, assisted by Sir 7. Feykyll, denied the motion : for, by the statute of Merton, the lord might inclose part of the waste, leaving fufficient common.

That at common law, in an action brought against the lord, the tenant must alledge in the declaration, that there is not sufficient common left; or he cannot maintain the action : and, if that should be the case, the tenants might have their remedy at common

law,

law, and it was too soon for an injunction before answer.

$71. The inclosure of commons having been Inclosure of

Commons found to be extremely beneficial to the public, by increasing tillage and agriculture, it was enacted by the Itatute 29 Geo. 2. c. 36. § 1. That his Majesty, his heirs and successors, and all other owners of wastes, woods, and pastures, wherein any persons or bodies politic have right of common of pasture, by and with the assent of the major part in number and value of the owners and occupiers of the tenements to which such right of pasture doth belong, and to and for the major part in number and value of the owners and occupiers of such tenements, by and with the affent of the owner or owners of the said wastes, woods, and pastures, and to and for any other person or persons or bodies politic, by and with the assent and grant of the owner or owners of such wastes, woods, and pas. tures, and the major part in number and value of the owners and occupiers of such tenements, may inclose, for the growth and preservation of timber and underwood, any part of such wastes, woods and pastures.

S 72. By the stat. 31 Geo. 2. C. 41. it is provided, that if any recompence be agreed to be given for such inclosure, it shall be made to the persons interested in the right of common, in proportion to their respective interests; and not to the overseers of the poor as was directed by the second section of the preceding act : and the powers given to owners by that act

may

be exercised by tenants for life or years, during their VOL. III.

I

respective

respective interests, with a proviso that nothing done
by them shall have effect after the determination of
their estates.

$ 73. By the statute 13 Geo. 3. c. 81. $ 15. lords of manors, with the consent of three fourths of the persons having right of common, are enabled to lease for four years, any part of the said commons, not exceeding a twelfth part thereof; and to apply the rent in draining, fencing, or otherwise improving the residue of the said wastes.

m

$ 74. The inclosure of commons is now usually effected by means of private acts of parliament; of which an account will be given in a subsequent title.

Extinguishment of Common.

$ 75. A right of common may be extinguished by a release, or by unity of possession of the land.

By Releafe.

S 76. With respect to a release of common, it has

been determined that, if the commoner releases part Rotheram v.

of the common, it will operate as an extinguishment
Green,
Cro. Eliz. of the right of common in the whole ; because the
593:
1 Show. 350. right of common is entire throughout the whole land:

and, therefore, a release of part is a release of the
whole.

$ 77. Common appendant and appurtenant become extinguished by unity of the land, to which the right of common is annexed, with the land in which the common was : for, where a man has as high and perdurable an estate in the land, as in a rent common or

By Unity of
Poflcifion.

other

4 Rep. 38 a.

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