county (m); and for the delivery by the officer of the court or the clerk of the peace to any person requesting the same, of "a copy of the said award, or any part thereof, signed by the proper officer of the court, wherein the same shall be enrolled, or by the clerk of the peace for such county or his deputy, purporting the same to be a true copy;"-" And the said award, and each copy of the same or of any part thereof signed as aforesaid, shall at all times be admitted and allowed in all courts whatever as legal evidence, &c." The award when made relates back to the time of allotment (n); and it need not contain all the authorities the commissioners had, the presumption being, that they acted according to their jurisdiction, until the contrary appears (o).

By the 8 & 9 Vict. c. 118, certain powers for the enclosure and improvement of commons, &c. are given to "The Inclosure Commissioners for England and Wales,' -"who shall cause to be made a seal of the said board, and shall cause to be sealed therewith all awards and orders made or confirmed by the commissioners, in pursuance of this act; and all such awards and orders and other instruments proceeding from the said board, or copies thereof, purporting to be sealed with the seal of the said board, shall be received in evidence without any further proof thereof, &c.' (s. 2). (p).

The 94th section enacts, that all the land exchanged, partitioned or allotted under the act shall be held by the person to whom it is given in exchange, &c. under the same tenures, rents, customs and services, as the land in respect of which it shall have been so given in exchange, &c., and the land exchanged, partitioned or allotted in respect of leasehold land shall be deemed leasehold, and be held under the same rents and covenants as the land in respect of which it may have been allotted, and the remainder or reversion thereof shall be vested in the same lessor respectively as the remainder or reversion of such other land was vested before the exchange, &c., except where otherwise directed by the act.

The 104th section provides for the drawing up and confirmation of the award by the commissioners, "under their hands and seal," and the 105th section enacts, "That such confirmation as aforesaid shall be conclusive evidence that all the directions of this act in relation to such award, and to every allotment, exchange, partition, and matter therein set forth and contained, which ought to have been obeyed and performed previously to such confirmation, shall have been obeyed and performed, and no such award shall be impeached by reason of any mistake or informality, &c., and every

(m) Any omission to enrol it in due time is remedied by the 3 & 4 Will. IV. c. 87.

(n) Doe v. Willis, 5 Bingh. 441.

(0) Goodtitle v. Milburn, 2 M. & W. 853. (p) The 69th section enables the valuer to extinguish or suspend rights of common during the inclosure.

allotment, exchange, &c. specified and set forth in such award as aforesaid shall be binding and conclusive on all persons whomsoever."

The 146th section enacts- "That two copies of every confirmed award shall be made, and sealed with the seal of the said commissioners, and one such copy shall be deposited with the clerk of the peace of the county in which the lands inclosed shall be situate, who is hereby required to deposit and keep the same among the records of the said county, so that recourse may be had thereto by any persons interested in the premises, and the other copy shall be deposited with the church or chapel-wardens for the time being of the parish in which the lands or the greater part thereof shall be situated, to be kept by them and by their successors in office, with the public books, writings and papers of the parish, or shall be de posited with such other fit persons as the commissioners shall approve; and all persons interested therein may have access to and be furnished with copies of or extracts from any such copy, on giving reasonable notice to the person having custody of the same, and on payment of two shillings and sixpence for such inspection, and after the rate of threepence for every seventy-two words contained in such copy or extract, and all such copies of and extracts from any such copy of any confirmed award as shall be furnished by the clerk of the peace shall be signed by the said clerk of the peace or his deputy, purporting the same to be a true copy, and every such copy and extract so signed shall be received in evidence without further proof thereof, and every recital or statement in such confirmed award, or any sealed copy thereof, shall be deemed satisfactory evidence of the matters therein recited or stated."

Regulated Pastures (q).-The 113th section enacts, "That it shall be lawful for the commissioners on the application in writing of persons interested in any land which shall be directed to be inclosed under this act, whose interest shall exceed in value one half of the whole interest in such land (such application to be made at any time before the instructions to the valuer shall have been delivered to him under the seal of the commissioners as hereinbefore provided), to direct such land or any part thereof to be converted into and used as a regulated pasture, to be stocked and depastured in common by the persons interested therein, in proportion to their respective rights and interests as the same shall be determined on the examination of claims, and in case part of such land only shall be so directed to be stocked and depastured in common, the valuer shall, subject to the instructions which shall be given to him under the provisions of this act, ascertain and set out the part which shall be so used as a regulated pasture, and shall direct how and at whose expense the same shall be fenced

(q) See 20 & 21 Vict. c. 31, ss. 1, 2.

and divided from the residue of such land, and the valuer, acting in the matter of such inclosure, shall, in every case where land shall be so directed to be used as a regulated pasture, ascertain and allot the respective stints or rights of pasturage, (specifying the respective numbers of the respective kinds of stock or animals to be admitted to the pasture in respect of such respective stints or rights of pasturage, with such option as to equivalent numbers of the respective kinds of stock and animals as he shall think just, and if he shall think fit, specifying the time during which such stock or animals may be kept on the pasture,) as he shall adjudge and determine to be proportionate to the value of the respective rights and interests of the persons interested as aforesaid, &c."

The 116th section enacts, "That the right of soil of and in all land which shall be converted into regulated pastures, shall, subject to the right of the lord of the manor to all or any of the mines, minerals, stone and other substrata, where the same shall be reserved to him under this act, and to the other rights given or reserved by this act, and the award in the matter of such inclosure, be vested in the persons, who, under the directions and determinations of such award shall be owners of the stints or rights of pasture therein, in proportion to the shares or aliquot parts which such stints shall be thereby declared liable to of any rate under this act, as tenants in common."

Exchange of Right of Common.-The 9 & 10 Vict. c. 70, s. 11, empowers the commissioners, on the application of the parties interested in any undivided share, or any cattle gate or other gate or any right of common defined by numbers or stints over any land (whether subject to be inclosed or not), to make an order of exchange of such respective shares without the concurrence of the other persons interested in the land. The provisions of the 8 & 9 Vict. c. 118, and this act, applicable to the exchange of land, are to be applicable to such exchange, except that, instead of a map, a sufficient description of the shares, rights, &c. so exchanged, and of the land on which the exchange is to operate, may be inserted in the order or annexed thereto (7).

V. Of the Remedy for Disturbance of Right of Common (r). Whatever destroys the right of common is a nuisance, and may be abated by the commoner, provided it can be done without interfering with the lord's right to, or interest in, the soil (s). But if the nuisance cannot be abated without such interference, the

(q) See further on the subject of inclosure, 10 & 11 Vict. c. 111; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83; 20 & 21 Vict. c. 31.

(r) As to the commoner's remedy against the lord in equity, see Powell v. Powis, 1 Y. & J. 159. (s) 2 Inst. 88.

commoner must resort to his action on the case, and have satisfaction in damages. If the right of common be partially injured, the commoner ought not to abate the cause of such injury, more especially if in so doing he must necessarily interfere with the right to the soil. On this principle it was held, in Cooper v. Marshall, 1 Burr. 265, that a commoner could not justify digging up the soil and destroying the coney-burrows erected in the common by the lord, who was entitled to free warren there. So where the lord had planted trees on the common, and the commoner cut them down, it was held, that the lord might maintain trespass, and that the commoner could not justify the abatement of the trees (t). Where a house obstructs the exercise of a right of common, the commoner may, after notice and request to the plaintiff to remove the house, pull it down, though the plaintiff is actually inhabiting and present in the house (u).

The usual remedy adopted by commoners is an action on the case for a disturbance of the right of common, which may be maintained either against the lord or the owner of the soil, a stranger, or a commoner (x). If the action is brought against the wrong-doer, title being only inducement, it is not necessary to set it forth; it will be sufficient for the plaintiff to state in his declaration, that he was possessed of a certain quantity of land, &c., and by reason of such possession was entitled to the right, in the exercise of which he was disturbed; secus, if it be brought against the lord (y). The right must be truly stated, for otherwise the variance will be ground of nonsuit (z). If, to an action on the case by a commoner for injuring his right of common, the defendant plead that he dug turves under a licence from the lord, he should add, that sufficient common was left for the commoner; and if he do not, the plaintiff is not obliged to reply, that there was not sufficient common left; because it is the gist of the action, and set forth in the declaration (a). Case for disturbing the plaintiff's right of common by turning on cattle; defendant pleaded a right of common in himself and justified turning on the cattle, being his own commonable cattle levant and couchant on his land; plaintiff must new assign, if he intends to prove a surcharge (b).

In this action the plaintiff must prove an injury sustained, but any injury in the minutest degree is sufficient; e. g. the taking away the manure which has been dropped on the common by the cattle, although the proportion of the damage sustained by the plaintiff be found to amount to a farthing only (c); for if, where the

(t) Kirby v. Sadgrove (in error), 1 B. &
P. 13.

(u) Davies v. Williams, 16 Q. B. 546.
(x) Hassard v. Cantrell, Lutw. 101.
(y) Greenhow v. Ilsley, Willes, 621.
(z) Beadsworth v. Torkington, 1 Q. B.

(a) Greenhow v. Ilsley, Willes, 619.

(b) Bowen v. Jenkin, 6 A. & E. 911. (c) Pindar v. Wadsworth, 2 East, 154. See cases cited by Taunton, J., in Marzetti v. Williams, 1 B. & Ad. 426, and Blofeld v. Payne, 4 B. & Ad. 410.

injury was small, a commoner could not maintain an action, a mere wrongdoer might by repeated torts in course of time establish evidence of a right of common (d).

VI. Of Surcharges by Commoners.

Formerly, if one of the commoners had surcharged the common, that is, had put more cattle into the common than he was entitled to, the commoner who was aggrieved might sue out a writ of admeasurement of pasture, and by that suit the common was admeasured in respect of all the commoners, as well those who had not surcharged as those who had surcharged it, and the person who brought the action (e). An action on the case has been substituted in the place of this writ of admeasurement, as a more easy and speedy remedy; and it has been held, that this action may be maintained by one commoner against another for a surcharge, although the plaintiff himself has been guilty of a surcharge (f). In the declaration, it is not necessary for the plaintiff to set forth the defendant's right of common, and show in what manner he has exceeded that right, by putting on a greater number or an improper species of cattle; but the disturbance may be alleged generally, "that the defendant wrongfully and injuriously ate up and depastured the grass on the common with divers sheep and lambs (g). Neither is it necessary that the plaintiff should state that he was exercising his right of common at the time of the surcharge (h). But it seems from Smith v. Feverel, 2 Mod. 6, and from a dictum of the court in Hassard v. Cantrell, Lutw. 107, that in an action against the lord it is necessary to show a particular surcharge.

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

To an action of trespass quare clausum fregit, the defendant may plead a right of common of pasture, of common of turbary, and of common of estovers.

By 2 & 3 Will. IV. c. 71 (i), it is enacted, "That no claim which may be lawfully made at the common law by custom, prescription, or grant, to any right of common or other profit or benefit, to be taken and enjoyed from or upon any land of the king, his heirs or successors, or any land, being parcel of the Duchy of Lancaster, or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except tithes, rent, and services, shall,

(d) See Patrick v. Greenway, 1 Wms. Saund. 346, b., n. (2).

(e) F. N. B. 125, B.

(f) Hobson v. Todd, 4 T. R. 71.

(g) Atkinson v. Teasdale, 3 Wils. 278. (h) Wells v. Watling, 2 W. Bl. 1233. (i) See further on the subject of this statute, post, tit. "Nuisance."