[a right to put his beasts originally into the other's common; but if they escape and stray thither of themselves, the law winks at the trespass (2).] In close connection with this, and substantially of the same kind, is the right described in the books as common of shack—or the right of persons occupying lands lying together in the same common field, to turn out their cattle after harvest to feed promiscuously in that field (a). Indeed, this kind of common, which in the beginning was but in the nature of a pasture "because of vicinage," and founded on the same reason (b), has now long since in many parts of the country insensibly changed its nature; and become, by the force of custom, a right so fixed, that even though the owner of any particular parcel should assume, merely on his own. authority, to inclose his land in severalty, it would still continue subject to the antient rights of the intercommoners (c). In a case like this (which is of familiar occurrence in parts of the country where the land still lies in open field), the right would seem to be properly classed under the head of common appurtenant (d).

[Common in gross, or at large, in such as is neither appendant nor appurtenant to land, but is annexed to a man's person, being granted to him and his heirs by deed; or it may be claimed by prescriptive right,-as by a parson of a church, or the like corporation sole. This is a separate inheritance,] entirely distinct from any other landed property vested in the person to whom the common right belongs.

Common of pasture, of whatever kind, may, in respect of time, be either limited or unlimited; that is, may either be confined to particular seasons of the year, or last all the

year round (e). As to the number of beasts to be turned on, the right is in general subject to restriction; for all commons (except those in gross) must be either claimed in respect of some number in particular, or at least in such manner as tends to limit the number, or for all cattle levant and couchant on the land to which the common is appendant or appurtenant; that is, for so many as the land is capable of maintaining during the winter. And a claim subject to no limitation of either kind, (except perhaps in the case where an express grant to that effect could be shown,) would be void (f). But with respect to a common in gross, it would seem that it may be either limited to a particular number, or be absolutely unlimited; which is called a common without stint, or sans nombre(g).

2, 3. [Common of piscary is a liberty of fishing in another man's water-as common of turbary is a liberty of digging turf upon another man's ground (h).] And with respect to common of turbary, in particular, it may be remarked that, like common of pasture, it may be either by grant or prescription; and may be either appurtenant or in gross; but it is usually claimed as appurtenant, and by prescription; and as to a common of turbary of this kind, we may notice that it cannot be claimed as appurtenant to land, but only to a house (i); and it authorizes not the taking of turf except for the purpose of using

(e) 2 Bl. Com. 34.

(f) 1 Saund. by Wms. 28 b, n. (4); Bennett v. Reeve, Willes, 231; Benson v. Chester, 8 T. R. 396; Cheesman v. Hardham, 1 Barn. & Ald. 711. As to the number of beasts which may be turned on because of vicinage, see Corbet's case, 7 Rep. 5.

(g) Co. Litt. 122 a; How v. Strode, 2 Wils. 274; 3 Bl. C. 237, 239. It has been denied that even a common in gross can be sans nombre, 1 Saund.

346. But see Co. Litt. by Harg. ubi sup. n. (5). We may observe here, that the term sans nombre is sometimes applied to the case of common for cattle levant and couchant, 1 Saund. by Wms. 28 b, n. (4). But this is not the sense in which it is used by Lord Coke.

(h) Co. Litt. 122; Wilson v. Willes, 7 East, 121. See Peardon v. Underhill and others, 20 L. J. (Q. B.) 133.

(i) Tyringham's case, 4 Rep. 37 a.

the same as fuel in the particular house to which the right is annexed (1).

4. [Common of estovers or estouviers (from estoffer, to furnish), is a liberty of taking necessary wood for the use or furniture of a house or farm from off another's estate;] and may be claimed, like common of pasture, either by grant or prescription. Estovers indeed may be taken (as formerly shown) by every tenant or lessee from off the land demised to him, [without waiting for any leave, assignment, or appointment of the lessor, unless he be restrained by special covenant to the contrary (m).] But this right is not to be confounded with common of estovers, which (as already explained) is the liberty of taking such wood on the soil of a stranger.

These several species of common, when originally established in our law, had all reference, no doubt, to the same object as common of pasture, viz. [the maintenance and carrying on of husbandry; common of piscary being given for the sustenance of the tenant's family; common of turbary for his fuel;] and estovers [for repairing his house, his instruments of tillage, and the necessary fences of his grounds.]

In addition to the above-mentioned rights of common, there is also common in the soil (n); which consists of the right [of digging for coals, minerals, stones, and the like ;] and this last species, and common of turbary, [bear a resemblance to common of pasture in many respects, though in one point they go much further: common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually, while common of turbary, and of digging for coals, and the like, are a right of carrying away the very soil itself.]

[By the Statute of Merton (20 Hen. III. c. 4), the lord

(1) Valentine v. Penny, Noy, 145. (m) Co. Litt. 41; vide sup. p.

262.

(n) Co. Litt. 41 b, 122 a; and see Cooke on the Law of Rights of Commons, pp. 8, 37 (2nd edit.).

[of a manor may inclose] against common of pasture (o), though not in general against common of estovers or of turbary (p), [so much of the waste as he pleases, for tillage or wood ground,-provided he leaves common sufficient for such as are entitled thereto (g). This inclosure, when justifiable, is called in law "approving," an antient expression, signifying the same as "improving (r)."] And this right is considered as applying equally to any owner of the waste, though he may not fall within the description of lord of the manor(s).

But the inclosure of common fields and waste lands, and the consequent extinction of common rights therein, are objects of so much importance to agricultural improvement, that they have not been left in modern times to depend on this antient statute; but have been extended very generally, throughout entire manors and parishes in almost every part of the kingdom, by force of local acts of parliament, passed from time to time for the purpose. And in aid of this practice was passed the statute 41 Geo. III. c. 109 (t),—consolidating a number of regulations, and making them applicable to every case of local inclosure, so far as the particular Act, under which the proceeding took place, contained no provision to the contrary.

It is not, however, by force of local Acts, or of the regulations contained in 41 Geo. III. c. 109, thus connected with them, that an improvement of this description

(0) And see 13 Edw. 1, c. 46; 29 Geo. 2, c. 36; 31 Geo. 2, c. 41; 10 Geo. 3, c. 42; see also 13 Geo. 3, c. 81, for regulation, by the commoners, of the mode of enjoying their common rights.

(p) 2 Inst. 87; Bateson v. Green, 5 T. R. 416; 1 Saund. by Wms. & Pat. 353 b, n. (b); Arlett v. Ellis, 7 Barn. & Cress. 369.

(1) Arlett v. Ellis, ubi sup. ; see Patrick v. Stubbs, 9 Mee. & W. 833;

Lake v. Plaxton, 10 Exch. 196.

(r) 2 Inst. 474.

(s) Glover v. Lane, 3 T. R. 445. (1) As to the construction of this statute, see Doe v. Spencer, 2 Exch. 692. It has been hitherto usually described as The General Inclosure Act; but since the passing of the more recent statutes to be presently mentioned, the description has become somewhat ambiguous.

is now effected; but under general provisions for facilitating inclosure which have been lately introduced by the legislature, to enable parties to avoid the expense and delay of obtaining a local Act for the purpose of each particular case. By the first Act containing provisions of this description, viz. 6 & 7 Will. IV. c. 115 (a), it was enacted, that (with certain exceptions) such inclosure might take place in any open and common lands, whether arable, meadow or pasture, without the sanction of an act of parliament, and under the conduct of commissioners appointed by the majority of the persons interested,—— provided the consent of two-thirds in number and value of such persons were obtained for the purpose; and, with the consent of seven-eighths, might take place without the intervention of commissioners (b). But the statute was restricted in several directions: and, in particular, did not extend to the inclosure of any waste whether the soil thereof was or was not vested in the lord of any manor; nor to places within ten miles of London, or within certain distances of other large towns comprising a certain amount of population. And as owing to the limits within which it was thus restrained, and to other causes, this Act was found inadequate to the public exigencies, it was succeeded not long afterwards by the 8 & 9 Vict. c. 118 (c); by which—after reciting that "it is expedient to facilitate "the inclosure and improvement of commons and other "lands, subject to rights of property which obstruct cul"tivation and the productive employment of labour; and "to facilitate such exchanges of lands (d), and such divi

(a) This statute is known as "The Common Fields Inclosure Act," and sometimes as "Lord Worsley's Act." (Cooke on Inclosures, p. 76.) (b) 6 & 7 Will. 4, c. 115, s. 40. (c) This Act (known as the Inclosure Commission Act) has been amended by 9 & 10 Vict. c. 70; 10 & 11 Vict. c. 111; 11 & 12 Vict.

c. 99; 12 & 13 Vict. c. 83; 14 & 15 Vict. c. 53; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31; 22 & 23 Vict. c. 43.

(d) As to exchanges and partitions of lands under the provisions of the Inclosure Acts, see 8 & 9 Vict. c. 118, s. 147; 9 & 10 Vict. c. 70, s. 9; 11 & 12 Vict. c. 99, ss. 13, 14;