these cases of prescriptive or customary modus's, the law supposes an original real composition to have been regularly9 made; which being lost by length of time, the immemorial usage is admitted as evidence to shew that it once did exist, and that from thence [31] such usage was derived. Now *time of memory hath been long ago ascertained by the law to commence from the reign of Richard the first; and any custom may be destroyed by evidence of it's non-existence in any part of the long period from his days to the present; wherefore, as this real composition is supposed to have been an equitable contract, or the full value of the tithes, at the time of making it, if the modus set up is so rank and large, as that it beyond dispute exceeds the value of the tithes in the time of Richard the first, this modus is9 felo de se and destroys itself. For, as it would be destroyed by any direct evidence to prove it's non-existence at any time since that aera, so also it is destroyed by carrying in itself this internal evidence of a much later original. A prescription de non decimando is a claim to be entirely discharged of tithes, and to pay no compensation in lieu of them. Thus the king by his prerogative is discharged from all tithes." So a vicar shall pay no tithes to the rector, nor the rector to the vicar, for t This rule was adopted, when by the statute of Westm. 1. (3 Edw. I. c. 39) the reign of Richard I. was made the time of limitation in a writ of right. But, since by tne statute 32 Hen. VIII. c. 2. this period (in a writ of right) hath been very rationally reduced to sixty years, it seems unaccountable, that the date of legal prescription or memory, should still continue to be reckoned from an aera so very antiquated. See 9 2 Roll. Abr. 269. pl. 16.† 9 Ninth edition inserts here, "Litt. 170; 34 Hen. VI. 37," u Cro. Eliz. 511. 9 Ninth edition reads "it is supposed that." 9 Ninth edition reads "was antiently." 9 Ninth edition inserts here, "beginning of the." 9 Ninth edition reads "that time." 9 Ninth edition inserts here, "(in point of evidence)." **Quoted, 8 N. J. L. 130. Ref. 30 N. H. 445. 5 ecclesia decimas non solvit ecclesiæ.. But these personal privileges (not arising from or being annexed to the land) are personally confined to both the king and the clergy; for their tenant or lessee shall pay tithes, though in their own occupation their lands are not generally 5 tithable. And, generally speaking, it is an established rule, that, in lay hands, modus de non decimando non valet. But spiritual persons or corporations, as monasteries, abbots, bishops, and the like, were always capable of having their lands totally discharged of tithes, by various ways, as, 1. By real composition: 2. By the pope's bull of exemption: 3. By unity of possession; as when the rectory of a parish, and lands in the same parish, both belonged to a religious [32] house, those lands were discharged of tithes by this unity of possession: 4. By prescription; having never been liable to tithes, by being always in spiritual hands: 5. By virtue of their order; as the knights templars, cistercians, and others, whose lands were privileged by the pope with a discharge of tithes. Though upon the dissolution of abbeys by Henry VIII. most of these exemptions from tithes would have fallen with them, and the lands become tithable again; had they not been supported and upheld by the statute 31 Hen. VIII. c. 13. which enacts, that all persons who should come to the possession of the lands of any abbey then dissolved, should hold them free and discharged of tithes, in as large and ample a manner as the abbeys themselves formerly held them. And from this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: for, if a man v Cro. Eliz. 479. 5511. Sav. 3. Moor. 910,5 w Ibid. 479. X Ibid. 511. y Hob. 309. Cro. Jac. 308. z 2 Rep. 44. Seld. tith. c. 13. § 2. 5 Previously, "privileges are personal." 5 Previously, "it is not." can shew his lands to have been such abbey lands, and also immemorially discharged of tithes by any of the means before-mentioned, this is now a good prescription de ron decimando. But he must shew both these requisites: for abbey lands, without a special ground of discharge, are not discharged of course; neither will any prescription de non decimando avail in total discharge of tithes, unless it relates to such abbey lands. III. Common, or right of common, appears from it's [ very definition to be an incorporeal hereditament: being a profit which a man hath in the land of another; | as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like. And hence common is chiefly of four sorts; common of pasture, of piscary, of turbary, and of estovers. 1. Common of pasture is a right of feeding one's beasts on another's land; for in those waste grounds, which are usually called commons, the property of the soil is generally in the lord of the manor; as in common fields it is in the particular tenants. This kind of common is either appendant, appurtenant, because of vicinage, or in gross.b [33] Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough, or such as manure the ground. This is a matter of most universal right and it was originally permitted, not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of land to tenants, for services either done or to be done, these tenants could not plough or manure the land without beasts; these beasts could not be sustained without pasture; and pasture could not be had but in a Finch, law. 157. 2 BLACKST -6. c 2 Inst. 86. b Co. Litt. 122. the lord's wastes, and on the unenclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident, to the grant of the lands; and this was the original of common appendant: which obtains in Sweden, and the other northern kingdoms, much in the same manner as in England. Common appurtenant 1ariseth from no connexion of tenure, nor from any absolute neccesity: but may be annexed to lands in other lordships, or extend to other beasts, besides such as are generally commonable; as hogs, goates, or the like, which neither plough nor manure the ground. This not arising from 5 any natural propriety or necessity,5 like common appendant, it is therefore not of 5 general 5 right; but can only be claimed by immemorial usage and prescription,' which the law esteems sufficient proof of a special grant or agreement for this purpose.* Common because of vicinage [see note 9, page 78], or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying mutually into the other's fields, without any molestation from either. This is indeed only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits: and therefore either township may enclose and bar out the other,† though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally [34] into the other's common: but if d Stiernh. de jure Sueonum, l. 2. c. 6. e 5 Cro. Car. 482. 1 Jon. 397.5 f Co. Litt. 5 121,5 122. 5 Previously, "Is where the owner of land has a right to put in." 8 Previously, "and." 5 Previously, "the necessity of the thing." 5 Previously, "common." *Cited, 33 How. (Miss.) 433. +-+ Quoted, 13 Pick. 248. they escape, and stray thither of themselves, the law winks at the trespass. Common in gross, or at large, is 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 landed property, and may be vested in one who has not a foot of ground in the manor. All these species, of pasturable common, may be and usually are limited as to number and time; but there are also commons without stint, and which last all the year. By the statute of Merton however, and other subsequent statutes, the lord of a manor may enclose so much of the waste as he pleases, for tillage or woodground, provided he leaves common sufficient for such as are entitled thereto. This enclosure, when justifiable, is called in law "approving;" an antient expression signifying the same as "improving." The lord hath the sole interest in the soil; but the interest of the lord and commoner, in the common, are looked upon in law as mutual. They may both bring actions for damage done, either against strangers, or each other: the lord for the public injury, and each commoner for his private damage. 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's ground. There is also a common of digging for coals, minerals, stones, and the like. All these bear a resemblance to cominon of pasture in many respects; though in one point they go much farther: common of pasture being only a right of g Co. Litt. 122. h 20 Hen. III. c. 4. 29 Geo. II. c. 36, and 31 Geo. II. c. 41. i 2 Inst. 474. k 9 Rep. 113. 1 Co. Litt. 132. |