so defective in several material respects, (perfectly collateral to the question upon which the determination of the judges was sought,) that no judgment could be given for the plaintiff upon either of them (t). But where an action on the case was brought against ten defendants, proprietors of a coach, for the carriage of passengers for hire, for injuries sustained by plaintiff, a passenger, in consequence of negligence in driving, whereby the coach was overset, and the jury found against eight of the defendants, and in favour of the other two; and judgment was entered accordingly in B. R. On error in Exchequer Chamber, the judgment was affirmed (u), the court observing, that in this case a duty was imposed on the defendants which did not arise by the contract, but by the custom or common law of England.

Trover will not lie against a common carrier for merely losing goods entrusted to his care without any actual wrong (x) (10). The proper form of action is the action on the case before mentioned. Although goods are spoiled by the default of the master of the ship, yet the owners are liable in respect of the freight (y), if charged on the custom of the realm, or as usually carrying for hire, or upon an express undertaking: but not otherwise (z). In this case the declaration, (if in assumpsit,) ought to be against all the owners; but if one or more are not named as defendants, advantage can be taken of the omission by plea in abatement only (a). The same rule holds with respect to all common carriers who are partners, or who make a joint contract (b). A ship was chartered to the commissioners of the navy as an armed vessel, who put on board a commander in the navy and a king's pilot, the master and crew being appointed and paid by the owners. In consequence of the improper

(t) Max v. Roberts, 12 East, 89. But see Weall v. King, 12 East, 452.

(u) Bretherton and others v. Wood, Exch. Ch. 3 Brod. & Bingh. 54; 9 Price, 408; 6 Moore, 141; recognized in Pozzi v. Shipton, 8 A. & E. 963; 1 P. & D. 4.

(x) Ross v. Johnson, 5 Burr. 2825; Kirkman v. Hargreaves, (case from Lancaster Sum. Ass. 1800, before Graham, B.,) B. R. H. 41 G. III. MSS. S. P.

(y) Boson v. Sandford, Salk. 440; 3

Lev. 238; 1 Show. 29; 2 Show. 478; Skin. 278; 3 Mod. 321; Carth. 58, S. C. See also Colvin v. Newberry, 8 B. & C. 166, reversed on error in Exch. Chr. 7 Bingh. 190; 1 Tyrwh. 81.

(z) Boucher v. Lawson, Ca. temp. Hardw. 194.

(a) Rice v. Shute, 5 Burr. 2611. (b) But see stat. 1 Will. IV. c. 68, s. 5, ante, p. 422.

(10) But if the carrier has the goods in his custody at the time when he refuses to deliver them, this will be evidence of a conversion, Salk. 655. So trover will lie against a carrier who deliver goods to a wrong person through mistake. Per Kenyon, C. J., Youl v. Harbottle, Peake's N. P. C. 49, recognized in Devereux v. Barclay, 2 B. & A. 704. The owner of goods on board a vessel directed the captain not to land them on the wharf, against which the vessel was moored, which the captain promised not to do, but afterwards delivered them to the wharfinger, conceiving that the wharfinger had a lien on the goods for wharfage fees; it was holden, that the owner might maintain trover against the captain, who could not prove that any wharfage duty was due.-Syeds v. Hay, 4 T. R. 260.

execution of an order given by the commander, the chartered ship ran foul of another ship. It was holden (c), that the owners of the chartered ship, were liable for the injury which the other ship sustained; for the chartered ship, notwithstanding it had an officer on board, was, with regard to third persons, to be considered as the ship of the owners.

Pleading under new Rules.-In case against a carrier the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purposes for which they were received. R. G. H. T. 4 Will. IV. See Webb v. Page, 6 Scott's N. R. 951. All matters in confession and avoidance of actions on the case shall be pleaded specially, as in actions of assumpsit. R. G. H. T. 4 Will. ÎV.

As to payment of money into court, see ante, p. 140, and new rules.

VI. Evidence.

ACTION against defendants (d) as owners of a coach, for the loss of a parcel. To prove the ownership, on the part of the plaintiff, an entry in the book, kept at the proper office in Somerset House, stating the defendants to be licensed as owners of the coach was produced; and it was contended, that as the entry was made in pursuance of stat. 25 Geo. III. c. 51, ss. 50, 51, it must be presumed to be accurate, and was at least primâ facie evidence; but Gibbs, C. J., rejected it, observing that the entry not being signed by the defendants, and nothing being shown to connect them with it, it was no evidence to prove them to be owners of the coach. The inscription (e) on a stage-coach of the name of the party is evidence, in an action against him, of ownership, for the statute is not confined to proceedings before magistrates.

A parcel, containing bank-notes, stamps, and a letter, was sent, by a common carrier, from one stamp distributor to another; it was holden (f), in an action against the carrier, that the circumstance of the letter accompanying the stamps was primâ facie evidence that it related to them, so as to bring the case within the proviso of the 42 Geo. III. c. 81, s. 6 (g), which enacts, "that the prohibition to send letters otherwise than by the post, shall not extend

(c) Fletcher v. Braddick, 2 Bos. & Pul. N. R. 182. See also Fenton v. City of Dublin Steam Packet Co. 8 A. & E. 835; 1 P. & D. 103.

(d) Strother v. Willan and others, 4 Campb. 24. See also Tinkler v. Walpole, 14 East, 226; S. P. as to register of a ship.

(e) Barford v. Nelson, 1 B. & Ad. 571. (f) Bennett v. Clough, 1 B. & A. 461.

VOL. I.

(g) Repealed by stat. 7 Will. IV. & 1 Vict. c. 32; stat. 7 Will. IV. & 1 Vict. c. 33, excepts from the exclusive privilege of the post office, "Letters concerning goods or merchandize sent by common known carriers, to be delivered with the goods which such letters concern, without hire or reward or other profit or advantage for receiving or delivering such letters."

2 F

to letters sent by any common carrier, with and for the purpose of being delivered with the goods that the letter concerns: " and that the defendant not having proved the letter to relate to any other subject-matter, was liable for the value of the parcel.

Declaration, that for certain hire and reward, defendants undertook to carry goods from London and deliver them safely at Dover. The contract proved was to carry and deliver safely, (fire and robbery excepted). It was holden (h) that this was a variance. A memorandum by a wharfinger (i) of the receipt of goods to be shipped in a particular manner, may be given in evidence to show the terms on which they were received without a stamp, although the value of the goods was above 201., the wharfage being of a less amount. To sustain an action against the keeper of a bookingoffice for the loss of a parcel, it is not sufficient merely to show nondelivery of the goods to the consignee (k); and that it had not reached its destination. The office-keeper's duty is to deliver to a carrier and some evidence must be given showing specifically a breach of that duty. By taking charge of a parcel at a bookingoffice, the office-keeper merely makes himself an agent to book for the stage-coaches; so that he sends the parcel to the proper coachoffice, and once delivers it there, he has discharged himself; he has nothing to do with the carriage of the goods (1).

(h) Latham v. Rutley, 2 B. & C. 20. (i) Chadwick v. Sills, 1 Ry. & M. 15, recognized by Abbot, C. J., in Latham v. Rutley, ib. 13.

(k) Gilbart v. Dale, 5 A. & E. 543;

1 Nev. & P. 22.

(1) Per Lord Abinger, C. B., in Muschamp v. Lancaster and Preston Junction Railway Co. 8 M. & W. 428, ante, p. 419.

(435

CHAPTER XI.

COMMON.

I. Of Right of Common, p. 435.

II. Of Common of Pasture, p. 436; and herein of Common appendant, p. 437; Common Appurtenant, p. 438; and Common in gross, p. 439.

III. Of the Interest of the Owner of the Soil, subject to Right of Common p. 440; and herein of Approvement and Inclosure,

p. 441.

IV. Of the Remedy for Disturbance of Right of Common, p. 443. V. Of Surcharges by Commoners, p. 444.

VI. Pleadings; Evidence, p. 445; Stat. 6 & 7 Vict. c. 85, p. 450.

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 (1), water (2), wood (3), &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 (a). But a person may prescribe for the several pasture, and exclude the owner of the soil from feeding his cattle there (b).

The common over which the right is claimed, generally is 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

(a) 1 Inst. 122, a.

(b) 1 Inst. 122, a.; Hoskins v. Robins, 2 Saund. 324, recognized in Jones v. Ri

chard, 6 A. & E. 530, and in Welcome v. Upton, 6 M. & W. 536.

(1) Common of pasture, and common of turbary.

(2) Common of fishery.

(3) Common of estovers.

another; but stronger evidence should be given to establish such a right than in ordinary cases. A person may have two distinct substantial grants of right of common over different wastes, from different lords, in respect of the same tenements (c); and immemorial usage is evidence of such distinct grants. If A. has a common

by prescription (d), 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 (4). 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. Plea, N. G. 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 the re-grant of it as a copyhold with its appurtenances did not re-create the right of common. But per Abbott, C. J., on motion to enter nonsuit, 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 (e).

II. Of Common of Pasture; and herein of Common Appendant, p. 437; Common Appurtenant, p. 438; and Common in Gross, p. 439.

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, (c) Hollinshead v. Walton, 7 East, 485. (e) Badger v. Ford, 3 B. & A. 153. (d) 1 Inst. 114, b.

(4) Title once gained by prescription or custom, cannot be lost by interruption of the possession for 10 or 20 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. When a prescription or custom makes a title of inheritance, the party cannot alter or waive the same in pais.