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wherever there has been a constant annual payment for time immemorial, it shall be intended, that such payment had a proper commencement.
Real Compofirion. Gwill. 801.
$ 101. A real composition 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 consideration of some land, or other real recompence to the parson or vicar, in lieu and fatisfaction of such tithe.
$ 102. This kind of composition was formerly permitted, because it was supposed that the clergy would be no losers by such composition; as the consent of the ordinary, whose duty it was to take care of the church in general, and of the patron, whose interest it was to protect that particular church, were both required to render the composition effectual.
Heathcote v. S 103. Formerly, it was held, that a composition Mainwaring, real could not be established, without shewing the deed
by which it was created, or proving the actual existence Sawbridge of such a deed. But it is laid down in a modern case, v. Benton,
that, where there has been a composition real within time of memory, its commencement must be shewn; though it is not neceffary to produce the deeds under which it took place. Presumptions are admitted in this as in other cases; and the existence of such deeds may be inferred from other evidences. It is not necessary, that the consent of all the parties should be by the same deed: this may frequently not happen. In the case of
the king, who consents by letters patent, it never can
S 104. No composition real can be good, unless it was made before the 13 Eliz. : for, by a statute passed in that year, chap. 10., it is enacted, that no parson or vicar shall 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 Will.R.128. courts of equity, to confirm compositions entered into by the consent of the parson, patron, and ordinary, subsequent to the statute 13 Eliz. ; but still these com- Atty. Gen. positions are not held binding against the succeeding
3 Gwill. 914 incumbents.
S 106. In many of the modern inclosure acts, the Inclosure
§ 1. Nature of
2. Common of Pallure.
$38. Rights of the Lord.
47. Rights of the Commoners.
Section 1, Nature of. COMMON is a right or privilege, which one or
more persons 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 some agreement between the lords and tenants, for
some valuable purposes; which, being continued by Vide Tit. 31. usage, is good, though there be no deed, or instru
ment in writing, to prove the original agreement.
§ 2. The most general and valuable kind of common is that of pasture; 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 soil is generally in the lord of the manor.
Tit. 1. $ 9.
This kind of common is either appendant, appurtenant, because of vicinage, or in gross.
S 3. Common appendant is a right annexed to the possession 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 species of common is thus described by Lord Coke.—“ When a lord of a manor, 2 Inft. 85.
4 Rep. 37 a. “ wherein was great waste grounds, did enfeoff others “ of some parcels of arable land, the feoffors ad manu“ tendum fervitium foce should have common in the " said wastes of the lord, for two causes; ist. As in“ cident to the feoffment; for the feoffee could not “ plough and manure his ground without beasts, and
they could not be sustained without pasture; and,
by consequence, the tenant should have common in " the wastes of the lord for his beasts, which do
plough and manure his tenancy, as appendant to his
tenancy; and this was the beginning of common “ appendant. The second reason was for maintenance “ and advancement of agriculture and tillage, which
was much favoured in law."
$ 4. Common appendant must be time out of mind, 1 Roll. Ab. so that it cannot now be created : and it is regularly 396. appendant to arable land only. Yet it may
4 Rep. 37 4. as appendant to a manor, farm, or carve of land, & b. though it contains pasture, meadow, and wood: for it will be presumed to have all been originally arable ; but a prescription to have common appendant to a house, meadow, or pasture, is void.
§ 5. Common
S 5. Common of pasture may be appendant to a 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.
i Inft. 122 a.
S 6. Common appendant can only be claimed for such cattle as are necessary to tillage ; such as horses and oxen to plough the land, and cows and sheep to compefter or manure it.
$ 7. Common appendant may, by usage, be limited to any certain number of cattle; but, where there is no such usage, it is restrained 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, shall be ascertained by the number of cattle, which can be maintained on the land during the winter.
Appurtenant. i Inft. 122 a.
i Roll. Ab. 399.
S 8. Common appurtenant does not arise from any connexion of tenure, but must be claimed by grant or prescription, and may be annexed to lands lying in different manors from those, in which it is claimed. This species 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 arise 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 beasts usually commonable, such as