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the best and most fubftantial tenant of the faid tenement at any time within the memory of man had kept upon the waste. And then the lord might approve, leaving fufficient common according to fuch rate.
§ 62. It is laid down by Lord Chief Juftice Willes, and the other judges of the court of common pleas, that, although a lord of a manor cannot, by virtue of the ftatute of Merton, inclofe and approve against common of turbary; yet, that where there is common of pasture and common of turbary in the fame wafte, the common of turbary will not hinder the lord from inclofing against the common of pasture; for they are two distinct rights.
S 63. Although the custom of a manor authorizes the commoners to inclofe 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 fufficient for the tenants.
§ 64. In a modern cafe, the court of king's bench held, that a custom, authorifing the owners of ancient meffuages within a manor to have certain portions of the common called mofs dales affigned to them in feveralty, for digging turves, and after clearing them of turves, to approve them, and hold them in feveralty difcharged from all right of common, was good in
$65. Where commoners have fome other right on the common, befide that of pasture, as of digging
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 ftatutes of Merton and West minster speak of the lords of manors, as the only perfons enabled to approve of commons; yet it has been determined in a modern cafe, that any perfon, who is feifed in fee of a waste within a manor, may approve, leaving a fufficiency of common: for otherwife not half the wastes in the kingdom could be approved;
3 Term R.
as many of the places, that are called manors, would Tit. 1. § 13. not be found fuch in point of law, if the matter were strictly examined. And Lord Kenyon obferved, that, though in the ftatutes of Merton and Weftminster 2, only the lord is mentioned, yet in those days there was a paucity of expreffion in acts of parliament; and the lord of the manor is put as the owner of the foil, 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 affift and protect a lord of a manor, in approving a common under the ftatute of Merton.
§ 68. There having been an inclosure made out of Weekes v. a common, and young wood and timber growing thereon, and the plaintiff infifting that it was an approvement within the ftatutes of Merton and Westminster 2.; the court thought fit to continue the injunction, and directed a trial to be had at the next
affizes, whether fufficient common was left for the
§ 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; furmifing he had only improved according to the ftatute of Merton, and had left a fufficiency of common; but that fome of the defendants, although they pretended to have a right, were not intitled to intercommon upon the wafte in question.
Upon the hearing, two iffues were directed to be tried at law: 1ft, as to fome of the defendants, whether they had a right of common; then 2dly, whether there was fufficient common left, beyond what was inclofed. 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.
§ 70. Upon a bill, brought in chancery by the tenants of a manor against the leffee of the lord, to establish their right of common of pafture, and for an injunction against the defendant for inclosing part of the common; Lord C. King, affifted by Sir J. Feykyll, denied the motion: for, by the statute of Merton, the lord might inclofe part of the wafte, 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 fufficient common left; or he cannot maintain the action: and, if that fhould be the cafe, the tenants might have their remedy at common
law, and it was too foon for an injunction before
§ 71. The inclofure of commons having been found to be extremely beneficial to the public, by increasing tillage and agriculture, it was enacted by the ftatute 29 Geo. 2. c. 36. § 1. That his Majesty, his heirs and fucceffors, and all other owners of wastes, woods, and pastures, wherein any perfons or bodies politic have right of common of pasture, by and with the affent of the major part in number and value of the owners and occupiers of the tenements to which fuch right of pasture doth belong, and to and for the major part in number and value of the owners and occupiers of fuch tenements, by and with the affent of the owner or owners of the faid waftes, woods, and pastures, and to and for any other person or perfons or bodies politic, by and with the affent and grant of the owner or owners of fuch waftes, woods, and paftures, and the major part in number and value of the owners and occupiers of fuch tenements, may inclose, for the growth and preservation of timber and underwood, any part of fuch wastes, woods and pastures.
$ 72. By the ftat. 31 Geo. 2. c. 41. it is provided, that if any recompence be agreed to be given for fuch inclosure, it shall be made to the perfons interested in the right of common, in proportion to their respective interests; and not to the overfeers of the poor as was directed by the fecond fection of the preceding act: and the powers given to owners by that act may be exercised by tenants for life or years, during their
Extinguishment of Common.
refpective interests, with a provifo that nothing done
$73. By the ftatute 13 Geo. 3. c. 81. § 15. lords of manors, with the confent of three fourths of the perfons having right of common, are enabled to leafe for four years any part of the faid commons, not exceeding a twelfth part thereof; and to apply the rent in draining, fencing, or otherwife improving the refidue of the said wastes.
§ 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.
§ 75. A right of common may be extinguished by a release, or by unity of poffeffion of the land.
§ 76. With refpect to a release of common, it has been determined that, if the commoner releases part of the common, it will operate as an extinguifhment of the right of common in the whole; because the Show. 350. right of common is entire throughout the whole land: and, therefore, a release of part is a release of the whole.
By Unity of
4 Rep. 38 a.
§ 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