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Real Compofition. Gwill. 801.

Heathcote v.

wherever there has been a conftant annual payment for time immemorial, it fhall be intended, that fuch payment had a proper commencement.

§ 101. A real compofition is, where an agreement is made between the owner of lands and the parfon or vicar, with the consent of the patron and ordinary; that his lands fhall in future be freed from the payment of all tithes, in confideration of fome land, or other real recompence to the parfon or vicar, in lieu and fatisfaction of fuch tithe.

S 102. This kind of compofition was formerly permitted, because it was fuppofed that the clergy would be no lofers by fuch compofition; as the confent of the ordinary, whofe duty it was to take care of the church in general, and of the patron, whofe interest it was to protect that particular church, were both required to render the compofition effectual.

§ 103. Formerly, it was held, that a compofition Mainwaring, real could not be established, without fhewing the deed Gwill. 1345. by which it was created, or proving the actual existence

Sawbridge v. Benton,

Anftr. 372.

of fuch a deed. But it is laid down in a modern cafe, that, where there has been a compofition real within time of memory, its commencement must be fhewn; though it is not neceffary to produce the deeds under which it took place. Prefumptions are admitted in this as in other cafes; and the existence of fuch deeds may be inferred from other evidences. It is not neceffary, that the consent of all the parties fhould be by the same deed this may frequently not happen. In the cafe of

the

the king, who confents by letters patent, it never can

take place; but a compofition real is not fupported by Anftr.R. 375. evidence of immemorial payment.

S 104. No compofition real can be good, unless it was made before the 13 Eliz.: for, by a statute paffed in that year, chap. 10., it is enacted, that no parfon or vicar fhall make any conveyance of the estates of their churches, other than for three lives or thirty-one years.

§ 105. There have been several decrees made in Wilf.R.128. courts of equity, to confirm compofitions entered into by the consent of the parson, patron, and ordinary, subsequent to the ftatute 13 Eliz.; but ftill these compofitions are not held binding against the fucceeding incumbents.

Atty. Gen.

v. Cholmley, 3 Gwill. 914

Acts.

S 106. In many of the modern inclosure acts, the Inclosure lands inclosed are for ever exempted from the payment of tithes; and a portion of land is allotted to the parson and his fucceffors as a glebe, in lieu of them. In other acts of this kind, a corn-rent is fubftituted in lieu of tithes.

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Nature of.

Section 1.

COMMON is a right or privilege, which one or

more perfons have, to take or use some part or portion of that, which another person's lands, waters, woods, &c. produce. It is a right which commenced in fome agreement between the lords and tenants, for fome valuable purposes; which, being continued by Vide Tit. 31. ufage, is good, though there be no deed, or inftrument in writing, to prove the original agreement.

Common of
Pafture.

Tit. 1. 9.

§ 2. The most general and valuable kind of common is that of pafture; which is a right of feeding one's beasts in another's land: for, in those waste` grounds, which are called commons, the property of the foil is generally in the lord of the manor.

This kind of common is either appendant, appurtenant, because of vicinage, or in grofs.

§ 3. Common appendant is a right annexed to the poffeffion of arable land; by which the owner of fuch arable land is intitled to feed his beasts on the wastes. of the manor.

The origin of this fpecies of common is thus defcribed by Lord Coke.-" When a lord of a manor, "wherein was great waste grounds, did enfeoff others "of some parcels of arable land, the feoffors ad manu"tendum fervitium foca fhould have common in the "faid waftes of the lord, for two causes; ft. As in"cident to the feoffment; for the feoffee could not "plough and manure his ground without beafts, and they could not be fuftained without pasture; and, "by confequence, the tenant fhould have common in "the waftes of the lord for his beafts, which do plough and manure his tenancy, as appendant to his

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tenancy; and this was the beginning of common "appendant. The second reason was for maintenance " and advancement of agriculture and tillage, which cc was much favoured in law."

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1 Roll. Ab.

4 Rep. 37 4.

& b.

§ 4. Common appendant must be time out of mind, fo that it cannot now be created: and it is regularly 396. appendant to arable land only. Yet it may be claimed as appendant to a manor, farm, or carve of land, though it contains pasture, meadow, and wood: for it will be prefumed to have all been originally arable; but a prefcription to have common appendant to a house, meadow, or pasture, is void.

§ 5. Common

Emerfon v.
Selby,

§ 5. Common of pasture may be appendant to a

2 Ld. Raym. cottage: for a cottage has at least a curtilage annexed to it; nor is it deemed in law to be a cottage, unless there are four acres of land belonging to it.

1015.

1 Inft. 122 a.

1 Roll. Ab. 397, 8.

Bennet v.
Reeve,
4 Vin. Ab,
583.
Willes R.
227.
Benson v.
Chester, 8
Term R. 396.

Appurtenant. 1 Inft. 122 a.

1 Roll. Ab. 399.

§ 6. Common appendant can only be claimed for fuch cattle as are neceffary to tillage; fuch as horses and oxen to plough the land, and cows and sheep to compefter or manure it.

$ 7. Common appendant may, by ufage, be limited to any certain number of cattle; but, where there is no fuch ufage, it is reftrained to cattle levant et couchant upon the land, to which the right is appendant and the number of cattle, which are allowed to be levant et couchant on the land, fhall be ascertained by the number of cattle, which can be maintained on the land during the winter.

8. Common appurtenant does not arife from any connexion of tenure, but must be claimed by grant or prescription, and may be annexed to lands lying in different manors from thofe, in which it is claimed. This fpecies of common, though frequently confounded with common appendant, differs from it in many circumstances. It may be created by grant; whereas common appendant can only arife from prescription. It may be claimed, as annexed to any kind of land; whereas common appendant can only be claimed, on account of ancient arable land. It may be not only for beafts ufually commonable, fuch as horses,

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