sheep; not commonable are goats, hogs, and geese. Common of piscary is a liberty of fishing in another man's waters; as common of turbary is a liberty of digging turf upon another man's ground. Common of estovers is a right of taking necessary wood from another's estate for household use, and the making of implements of industry. There is also common for digging coal, stone, minerals, and the like; but the most general common right is that of pasture, and it is to that we shall limit our observations.

The property of the soil of the common is entirely in the lord, and the use of it jointly in him and the commoners: and the respective rights of the lord and commoner are ascertained by statute and usage.

In land subject to common right, the right of the lord of the soil ought to be so exercised as not to injure the right of the commoner to the surface. But the right of the commoner may be subservient to the right of the lord; so that the lord may dig clay-pits there without leaving sufficient herbage for the commoner, if it can be proved such a right has been constantly exercised. He may also inclose that part of the waste, whereby it ceases being common, provided he leave sufficient waste for the commoner. But when the tenants of the manor have a right to dig gravel or take estovers, the lord has no right to inclose and improve the waste of the manor. A commoner has only a special and limited interest in the soil, yet he has remedies commensurate to his right. If a tenant inclose or build on the waste, every commoner may have an action for the damage. Where turf is taken away from the common, the lord only is to bring the action. A right of common is presumptively established by thirty years' use, and the right becomes absolute and indefeasible after sixty years' enjoyment.

By 13 G. 3, c. 81, in every parish where there are common fields, all the arable lands shall be cultivated by the occupiers, under such rules as three-fourths of them in number and value shall agree to; the expense to be borne proportionately. Persons having right of common, but not having lands in such fields, and persons having sheep-walks, may compound for such right by written agreement, or may have parts allotted to them in common. Lords of manors, with the consent of three-fourths of the commoners, may lease, for not more than four years, any part of the waste, not exceeding one-twelfth part; and the clear rents reserved for the same shall be employed in improving the residue of such

waste.

By 4 & 5 W. 4, c. 30, the proprietor of any land in common field may exchange it for any other land, whether lying in the same or another common field, or for any inclosed land lying in the same or an adjoining parish. For the exchange of land held in right of the church, the consent of the patron and bishop is necessary. The 6 & 7 W. 4, c. 115, provides for the inclosure of open and common arable, meadow, and pasture lands, lying intermixed and dispersed

in parishes and townships, with the consent of two-thirds in number and value of the parties interested.

The 8 & 9 V. c. 118, is a general act, comprising 169 clauses, whose objects are described to be to facilitate the inclosure and improvement of commons and other lands now subject to rights of property which obstruct cultivation and the productive employment of labour, and to promote such exchanges of lands, and such divisions of lands intermixed or divided into inconvenient parcels, as may be beneficial to the respective owners; to provide remedies for the defective or incomplete execution, and for the non-execution of powers created by general and local acts of inclosure, and to authorize the revival of such powers in certain cases. The eleventh clause restricts the powers of the act to commons, and stinted pastures in which no part of the property of the soil is in the owners of such cattle-gates or stints, whether divided by metes or bounds or not; and it does not extend to wastes of manors in which the common right is indefinite; nor to the Forest of Dean and the New Forest; nor to within certain distances of large towns, the greatest distance being four miles, except the city of London, for which the distance is fifteen miles; while town or village greens are protected, but power is given to level and preserve the surface and to form boundaries. Commissioners to be appointed for the execution of the act, with secretary, &c. A proportional quantity of the land to be appropriated, according to population, for purposes of recreation and amusement, and for allotments to the labouring poor. Encroachments of more than twenty years' standing to be considered as valid, but not else, and school-houses are not to be deemed encroachments; a right given on proof of sixty years' usage; power is also given for the valuer to lay out water-courses, and to make and alter roads and ways. Land allotted for exercise or recreation to be vested in the churchwardens, who may let or sell the grass or herbage, the rents to be applied to the preservation and support of such land in good order, and it is also to be subjected to a rent-charge, which is to be divided among those having an interest in the same; or the person may take the same as a part or the whole of his allotment, in which case he must maintain the fences, surface, &c., and suffer it to be used, the herbage only belonging to him. The allotments to the poor are subjected to a corn rent-charge, to be recoverable as tithe rent-charges; and these rent-charges are to be allotted to the persons possessing the legal interest. Sec. 108 appoints allotment wardens, for the management of the poor allotments, who are to let them as gardens, in quantities not exceeding a quarter of an acre, at rents to be fixed every ten years by the valuer, but free of all tithes and taxes whatsoever, which are to be paid by the wardens; and no dwelling is in any case to be suffered to be erected, or if erected is to be pulled down. If the rent is in arrear for forty days, possession may be resumed, as also if the occupier removes to a distance of more than

a mile from the parish. The rents are to be applied to the payment of tithes, taxes, rent-charge, &c.; and the residue, if any, to go in aid of the poor rates.

With reference to allotments, the 9 & 10 V. c. 70, enacts that where any allotment for exercise or recreation, or for any other public purpose, shall have been made the condition of any provisional or supplemental provision, the commissioners may, at any time before the valuer has made his award, allot an equal quantity of land in lieu of that allotted by the previous order; and by s. 5, they may award rent-charges on the allotments to the lord of the manor, in lieu of any allotment of land to which he may be entitled. By s. 9, also copyhold and customary lands, though not subject to inclosure, may be exchanged under this act; as may also shares of land and cattle-gates and stints.

Allotments under inclosure acts are freehold, unless otherwise directed by the Act of Inclosure. The 11 & 12 V. c. 99, allows the commissioners, in the case of an allotment of less value than five pounds, to compensate the person entitled thereto, with his consent, by a payment in money.

Commons must be driven yearly at Michaelmas, or within fifteen days after.

In 1866, the Metropolitan Commons Act (29 & 30 V. c. 122) was passed. The authority of commissioners to enclose is excluded, and under the act a memorial for a scheme as to the management and improvement of a metropolitan common may be presented to the commissioners by the lord of the manor or by any commoners, and the commissioners are to direct an examination and inquiry into the memorial. The commissioners are to receive objections to the memorial for two months after the publication of the draft scheme; and they can, after the expiration of the two months, order an inquiry before an assistant-commissioner, by public sitting. The assistant-commissioner is to report on the draft scheme, and, after the report, the commissioners may proceed to consider any objection, and can finally settle and approve of the scheme. The act further deals with the form of the scheme and the statements to be made in it. The commissioners must make a report in the month of February, in every year, of all their proceedings during the last year to the Queen, which report must be laid within fourteen days before both Houses of Parliament.

CHAPTER III.

Mortgage.

MORTGAGE is a pledge of land, tenement, or anything immovable, bound for money borrowed, to be the lender's if the money be not

repaid at the time stipulated the borrower in these bargains is called the mortgagor, and the lender the mortgagee.

The perpetual alienation of real property was interdicted by the Mosaic law, which provided that no estate could be sold, or any way conveyed to another, for a longer period than the next jubilee, which occurred every fifty years; when, if not previously redeemed, it reverted, free of incumbrance, to the original owner and his heirs.

Although, by law, a mortgage is forfeited on non-payment of the sum borrowed at the time agreed on, yet a court of equity will interfere to prevent the sale: and if the value of the mortgage is greater than the sum advanced, it will allow the mortgagor, within a reasonable time, to redeem his estate, paying to the mortgagee his principal, interest, and expenses: without this, an estate worth £500 might be forfeited for the non-payment of £50. The advantage thus allowed to the mortgagor is called the equity of redemption. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately, or else call upon the mortgagor to redeem his estate; or, in default, to be for ever foreclosed, and thus lose his equity of redemption.

The

But by the act of 1852, the 15 & 16 V. c. 86, s. 48, the court of Chancery is empowered to direct a sale of mortgaged property instead of a foreclosure, on such terms as it may think fit. court may order real estate to be sold, if required; and, where real or personal estate is the subject of proceedings, it may allow to parties a portion of the whole of the annual income.

When the mortgagee is in possession, the mortgagor is barred by 3 & 4 W. 4, c. 27, at the end of twenty years, unless in the interim the mortgagor has received from the mortgagee some acknowledgment of his claim in writing.

A mortgage is often effected by a simple deposit of deeds and if a memorandum in writing accompanies the deposit, equity will consider it a mortgage, and decree payment or sale of the property mortgaged. If no memorandum accompanies the deposit, the court will not readily interfere, and the lender has generally to go to a court of law for his money, retaining the deeds till he is paid. In a mortgage of real estate, the consent of the wife by deed is necessary to bar her of dower, if married before January 1, 1834. It has become the practice, of late years, to insert in a mortgage an absolute power of sale, in case of breach of the condition of the deed; this power it is not always advisable for the mortgagee to avail himself of.

By 4 & 5 W. & M. c. 16, if any person mortgage his estate a second time, and do not inform the mortgagee, in writing, of the prior mortgage, or of any judgment or incumbrance he has voluntarily brought upon the estate, the mortgagee shall hold the estate as an absolute purchaser, free from the equity of redemption of the mortgagor. But the statute does not bar the widow of any

mortgagor from her dower, who did not legally join with her husband in such second mortgage, or otherwise exclude herself.

It is held to be an established rule of equity that the second mortgagee, who has the title deeds, without notice of a prior incumbrance, shall be preferred; because the negligence of the first mortgagee, in lending money without taking the title deeds, enables the mortgagor to commit a fraud, 1 T. R. 762.

Whatever may be the value of the estate, it is of great importance to those who lend money upon real security to be certain that there is no prior incumbrance upon it; for it is settled, that if a third mortgagee, who, at the time of his mortgage, had no notice of the second, purchase the first mortgage, even pending a bill filed by the second to redeem the first, both the first and third mortgages shall be paid out of it before any share of it can be appropriated to the second: the reason assigned is, that the third, by thus obtaining the legal estate, has both law and equity on his side, which supersede the mere equity of the second. But, in mortgages where none has the legal estate, the rule in equity is that the prior mortgagee has a prior claim.

When two different estates are mortgaged to the same person, one cannot be redeemed without the other, Amb. 733. So of the other securities given by the mortgagor to the mortgagee.

The investment of estates of infants and lunatics on mortgage, unless under very special circumstances, is not allowed, 1 Cooper, 157.

The 3 & 4 V. c. 55, amended by 8 & 9 V. c. 56, enables the owners of settled estates to defray the expense of draining them, by way of mortgage. These acts apply to England and Ireland.

CHAPTER IV.

Wills and Testaments.

A WILL or testament is an act whereby a man declares his intention as to the disposal of his property after his decease.

The person who makes a will is called a testator; he who dies without a will is called an intestate.

A gift of land or tenements, by will, is called a derise; the person to whom they are given, the devisee; and the person who makes the will, the devisor.

I. DESCRIPTION OF WILLS.

Wills are of two kinds, written or verbal; the latter is called a nuncupative will, being made by word of mouth before witnesses;