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other profit issuing out of the same land, there the rent common and profit is extinct.
$ 78. In trespass for breaking his close in Abney, the Bradshaw v. defendant pleaded that long before, &c. one Brad
Cro. Eliz. shaw was seised of the place where, &c. in fee ; and 570. that one Fuljamb was feised in fee of a house and twenty acres of land in Abney aforesaid, and that the said Fuljamb, and all they whose estate, &c. had com. mon in the said place where &c.; and that the said Fuljambenfeoffed of the said tenement the said Brad. Shaw, and that afterwards the said Bradshaw let unto the defendant the said house, and twenty acres of land, with all commons, profits, and commodities thereto appertaining or used with the said messuage ; and thereby justifies putting in his cattle to use the common, &c.
It was therefore demurred; and it was held clearly that his common was extinguished by the unity of pofsession, and could not be revived again : and Gawdy Juft. said it was the fame of common appendant.
S 79. Where the abbot of D. was feised of a com- Nelson's Cafe, mon out of the abbey of S. as appurtenant to certain 3 Leon, 128. lands of the abbey of D.: afterwards both those abbies were dissolved, and the possession of both were given to the king, to hold in as ample a manner as the abbots held them. Afterwards, the king granted the lands of one abbey to A. and of the other abbey to B. It was determined that the words “ in as ample a manger” &c. were to be construed according to law, and
no further; and that the unity of poffeffion in the king had extinguished the common.
S 80. To constitute such an unity of possession, as will extinguish a right of common, the person must have an estate in the lands to which the common is annexed, and in those, where the right of common exists, equal in duration and all other circumstances of right.
S 81. A right of common was appendant to certain tenements, which were parcel of the abbey of Sarum, in a common, that was parcel of the dutchy of Corn. wall : Upon the dissolution of the abbey of Sarum, these tenements became vested in king Hen. 8. in fee; in whom the dutchy of Cornwall was then vested for want of a duke of Cornwall. It was resolved by Lord Chief Justice Holt, and the rest of the judges, that this was not such an unity of possession as would destroy the right of common; because king Henry 8. had not as perdurable an estate in the one as in the other. For, in the dutchy of Cornwall the king had only a fee, determinable on the birth of a duke of Cornwall, which was a base fee; but, in the tene. ments in Hermitage, he had a pure fee-simple, indeterminable jure corona.
S 82. A parson had common appendant to his parfonage in the lands of an abbey; and afterwards the abbot had the parsonage appropriated to him and his successors. By Windham and Meade contra Dyer, the abbot had not as perdurable an estate in the one as in
the other : for the parsonage might be disappropriated; and then the parson would have the common again.
S 83. 7. S. was feised of 100 acres of land, and Kimpton's
Cafe had common appurtenant in 46 acres, two of which were in the occupation of A. and the other 44 of B.; Cro. Eliz.
594. and he purchased the two acres in the occupation of A. It was resolved that the whole right of common was extinct by this purchase.
S 84. Where the lord approves a part of the waste, Dyer 339. pl. and afterwards one of the commoners purchases the Cro. Eliz.594. part so approved, this will not extinguish his right of common; because, by the approvement, the land was utterly discharged of common.
$ 85. Where a person, having common appurte. 8 Rep. 79 4. nant, takes a leafe, for life or years, of part of the 9 Rep. 135 a. land in which he has such right of common; all his common shall be suspended during the continuance of such lease: because it is the folly of the commoner to intermeddle with the land, over which he has the right of common.
$ 86. Where a right of common is annexed to a' By Enfrancopyhold estate, and the lord grants and confirms the chisement of
Copyhold, land to the copyholder and his heirs, cum pertinentiis, Gilb. Ten.
324. the common is extinguished, because it was annexed
Marsham v. to the customary estate; which, being destroyed and Hunter,
Cro. Jac. 2534 converted into a freehold, the right of common is ex- Tit. 10. c. 6.
$6. tinguished : and the words “ cum pertinentiis" will not Forth v. have the effect of continuing it; because this right of Ward,
Cro. Jac. 2534 13
common Moore 667.
common was not appurtenant to the freehold estate, granted by the lord.
S 87. This doctrine, however, appears not to be allowed in equity: for, where the lord of a manor enfranchised a copyhold, with all common thereto belonging or appertaining, and afterwards bought in all the copyholds, and then disputed the right of common with the copyholder he had enfranchised, and at law recovered against the plaintiff, because the prescription of common to the copyhold was destroyed by the enfranchisement; and the grant of the copyhold, with the common thereto belonging, gavę no right of common; because, when enfranchised, no common in point of law belonged to it: The court decreed, that the plaintiff should hold and enjoy against the defendant the same right of common, which belonged to the copyhold, and costs.
i Salk. 366. O Mod. 20.
S 88. But, where a copyholder claims common out of the manor, it belongs to the land and not to the estate in the land : and, therefore, an enfranchisement of the copyhold will not extinguish the common.
$ 89. So, if a copyholder of one manor has common in the wastes of another manor, he must prescribe in the name of his lord, and say that the lord of the manor, whereof he is copyholder, used time out of mind to have common for him and his copyholders : and there enfranchisement of copyhold does not extinguish the common ; for it is a derivative right, which the copyholder has : and so, if it be taken as appendant to land, enfranchisement will not extinguish it.
$ 90. A common,
§ 90. A common, which has been extinguished by Common may
be revived. unity of possession, may be revived by a new grant.
$ 91. Thus, in the case of Bradshaw v. Eyre, the Ante, 1. 78. court held, that the words of the lease “all commons,
profits, &c. occupied or used with the said mef“ suage,” &c. operated as a grant of a new right of common for the time : for, although it was not common in the purchaser's hands, yet it was quasi common, used therewith ; and, though not the same common, as was used before, yet it was the like common.
S 92. Where common appurtenant to a messuage, Sandys v.
Oliff, was extinguished by unity of possession in the lord's Mo. 467. hands; it was held, that a grant by the lord of the messuage with all common appurtenant did not pass the common extinct; but, that a grant of all com- Grymes v: mons, usually occupied with the said messuage, would Peacock, have passed such common as the first was.
$ 93. Where a copyhold messuage, to which com- Worledge v.
Kingswell, mon in the lord's demesnes belonged, escheated to the Cro. Eliz.794. lord; who granted it with all commons thereto belonging, or used therewith : It was adjudged, that this enured as a new grant of the common.
S 94. Where a person had common in gross, Sawyer's
Cafe, which was derived from the abbot of W. and was de
W. Jones 285. kroyed by unity of poffeffion in the crown, with the lands in which the common was; and the crown granted the lands, to which the common belonged, with the words tot, tanta, talia, libertates, privilegia,