circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would be very unjust to deprive them. In the present case we find that the only circumstances communicated by the plaintiff to the defendant at the time the contract was made, were, that the article to be carried was the broken shaft of a mill, and that the plaintiff' was the miller of that mill. But how do these circumstances reasonably show that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to the third person?" (e) The damages to which a passenger, whom the carrier has failed in his contract to carry, is entitled, are those only which in the ordinary course of things resulted from the breach of contract, and these generally will be the expenses incurred by the passenger in trying to perform, as nearly as he can, the contract which the carrier engaged to do (ƒ).

(e) Hadley v. Baxendale, 9 Exch. 341; S. C. 23 L. J., Exch. 179. See also Fletcher v. Tayleur, 19 C. B. 21.

(f) Hamlin v. Great Northern Railway, 26 L. J., Exch. 20.

III. Of the Interest of the Owner of the Soil, subject to
Right of Common,

470

471

476

478

..

478

VIII. Evidence,

482

483

IV. Of Approvement and Inclosure,

V. Of the Remedy for Disturbance of Right of Common,

VI. Of Surcharges by Commoners,

VII. Prescription, 2 & 3 Will. IV. c. 71,

Levancy and Couchancy..

I. Of Right of Common.

RIGHT of Common is an incorporeal hereditament, or a right (lying in grant) which certain persons have to take or use in common a part of the natural produce of land (common of pasture and common of turbary (a)), water (common of fishery), wood (common of estovers), &c., belonging to other persons, who have the permanent or limited interest in the soil, &c.

If a person claim by prescription any species of common in the land of another, and that the owner shall be excluded to have pasture, estovers, or the like; this is a prescription against law (b). But a person may prescribe for the several pasture, and exclude the owner of the soil from feeding his cattle there (c); and such a right is transferable (d). The common over which the right is claimed is generally situate in the same manor in which the tenements lie, in respect of which the right is claimed; but a person may prescribe for right of common over a waste in one manor, in respect of a tenement lying in another; but stronger evidence. should be given to establish such a right than in ordinary cases.

(a) See Davies v. Williams, 16 Q. B. 546.

(b) 1 Inst. 122, a.

VOL. I.

(c) 1 Inst. 122, a.; Hoskins v. Robins,

2 Wms. Saund. 324.

(d) Welcome v. Upton, 6 M. & W. 536.

H H

A person may have two distinct substantial grants of right of common over different wastes, from different lords, in respect of the same tenements; and immemorial usage is evidence of such distinct grants (d).

If A. has a common by prescription, and takes a lease of the land for twenty years, whereby the common is suspended; after the years ended, A. may claim the common generally by prescription; for the suspension was to the possession only, and not to the right, and the inheritance of the common did always remain (e). Title once gained by prescription or custom, cannot be lost by interruption of the possession for ten or twenty years; but by interruption in the right it may; as if a man had a rent or common by prescription, unity of possession of as high and perdurable estate, is an interruption in the right. 1 Inst. 114, b(f). Declaration stated that the plaintiff was possessed of a messuage and land, in right of which he was entitled to common for all his commonable cattle levant and couchant, on a common called Bentry Heath, and that defendant had enclosed the same. At the trial it appeared that the messuage and land, in respect of which the right of common was claimed, had about fifty years ago vested in the lord by forfeiture, and that he re-granted the same as a copyhold with its appurtenances. It was contended that the right of common became extinguished, and that the re-grant of it as a copyhold with its appurtenances did not re-create the right of common. But per Abbott, C. J., "When a copyhold tenement is seized into the hands of the lord, it does not thereby lose its right of common; for that right is annexed to all tenements demised or demisable by copy of court roll; and while the estate remains in the lord, it continues demisable" (g).

II. Of Common of Pasture.

Common of Pasture is, where one person has, in common with other persons, the right of taking, by the mouths of his cattle, the herbage growing on land of which some other person is the owner. Common of Pasture is either common appendant, common appurtenant, or common in gross.

With respect to two other kinds of common of pasture, which are sometimes mentioned in the books, viz. common of vicinage, and common in gross sans nombre, or without stint; it may be observed, that the former cannot, strictly speaking, be a right of common, for if it were, it would prevent an enclosure, which it has been always held that it will not (h). The truth is, "it is but matter of

(d) Hollinshead v. Walton, 7 East, 485. (e) 1 Inst. 114, b.

(ƒ) When a prescription or custom makes a title of inheritance, the party

caunot alter or waive the same in pais. (g) Badger v. Ford, 3 B. & Ald. 153. (h) Musgrave v. Cave, Willes, 322.

excuse for a trespass" (i). Where the enclosure is incomplete, common by vicinage still continues (k). An actual undisturbed intercommuning of cattle must be shown. It is not sufficient to show that there was no fence between the two districts, and that the cattle in fact strayed; it must be shown that they fed without molestation (1). Such common may, it seems, exist between two adjoining proprietors by prescription, although not by custom (m). As to common in gross sans nombre, it has been truly said, that the notion of this species of common, in the latitude in which it was formerly understood, has been exploded long ago, and it can have no rational meaning, but in contradistinction to stinted common, where a man has a right to put in such a particular number of cattle only (n). In Mellor v. Spateman, (1 Wms. Saund. 346 d,) Kelynge, C. J., said, positively, that there could not be any common in gross sans nombre. See also Benson v. Chester, 8 T. R. 396, where it was held, that a claim of a right of common, without stint, as annexed to an ancient messuage, without land, could not be supported, such a right of common not existing in law.

Common Appendant is of common right (and therefore a man need not prescribe for it) for beasts commonable, that is, that serve for the maintenance of the plough, as horses and oxen, and for kine and sheep to manure the land (0), and is appendant to ancient arable land only (p). It must have existed from time immemorial (q), but it ought not to be claimed by prescription. The proper way of pleading it is, that the party was seised in fee of certain arable land, to which he had common appendant in the locus. See 4 Hen. VI. 13, a. It must be claimed in the waste of the lord, not for a certain number of cattle, but. for such only as are levant and couchant on the land, and therefore it cannot be severed, not even for a moment, nor turned into common in gross.

"The reason for common appendant appears to be this: that as the tenant would necessarily have occasion for cattle, not only to plough, but likewise to manure his own land, he must have some place to keep such cattle in, while the corn is growing on his own arable land; and therefore of common right (if the lord had any waste) he might put his cattle there, when they could not go on his own arable land;-hence it is plain, that the tenant can only have a right of common for such cattle as are levant and couchant on his estate, that is, for such and so many as he has occasion for to plough and manure his land, in proportion to the quantity thereof.""It is plain that a person cannot have a right of common appendant for cattle which he borrows, unless he make use of them all the

(i) Prichard v. Powell, 10 Q. B. 603.
(k) Gullett v. Lopes, 13 East, 348.
(1) Clarke v. Tinker, 10 Q. B. 604.
(m) Jones v. Robin (in error), 10 Q. B.
620.

(n) Bennett v. Reeve, Willes, 232.

(0) 1 Inst. 122, a.; Bro. Abr. Common, 1, 11, 35.

(p) 4 Rep. 37, b; Willes, 322.
(g) 26 H. IV. a.

year to plough or manure his land" (r). "Levancy and couchancy mean the possession of such land as will keep the cattle claimed to be commoned during the winter; and as many as the land will maintain during the winter shall be said to be levant and couchant." Per Buller, J., Scholes v. Hargreaves, 5 T. R. 48. See Rogers v. Benstead, post, p. 484.

Common appendant, being of common right, may be apportioned, by alienation of part of the land to which the common is appendant (s); and if the land be divided ever so often, each parcel of land is entitled to common appendant (t). Although the commoner purchases part of the land in which he is entitled to common, yet the common shall be apportioned (u), because common appendant is of common right; but otherwise it is of common appurtenant (c).

Common Appurtenant is a right of common founded on a grant (y), or prescription (which supposes a grant), annexed to the enjoyment of land. This species of common may be granted for all manner of cattle, that is, not only for those which serve for the maintenance of the plough, and to manure the land, but for swine, goats, and the like (2). It may be granted for an unlimited number, or for a certain number of cattle. Where common appurtenant is granted for an unlimited number of cattle, the measure of profit which the commoner is to have, is, as in the case of common appendant, levancy and couchancy (a); and, consequently, like common appendant, such common appurtenant cannot be converted into common in gross. But common appurtenant for a certain number of cattle may be granted over, and so become common in gross. Such a right cannot be claimed by prescription by the occupiers for the time being of a certain messuage (b).

Common appurtenant may be granted at this day (c), and may be apportioned by a conveyance of part of the land to which the right is appurtenant (d). This point was determined also in Sacheverill v. Porter, Cro. Car. 482, where a right of common in a waste having been granted to A. (who was seised of lands in S.), and all his tenants in S., for all commonable cattle, and A. conveyed parcel of the lands in S.; it was held, that the alienee was entitled to common for all his commonable cattle, levant and couchant, on the parcel of the lands conveyed.

Common appurtenant, as well as common appendant, may become extinct by unity of possession (e). And where common appur tenant has been extinguished by unity of possession, a new right of common is not created by a deed granting the messuage and land, with all common thereto belonging; although the occupiers of the