tenant or lessee shall pay tithes (42), though in their own occupation their lands are not generally titheable (w). And, (w) Cro. Eliz. 479. (42) Our author, with proper caution, restricts this to cases in which the privilege of exemption is personal; and in such cases it is very like an identical proposition to say, that it does not extend to others than the persons privileged. But the privileges of the king, or of a bishop, or ecclesiastical corporation, to prescribe de non decimando, are not necessarily so confined. To be sure, if the king absolutely aliens lands, which, whilst they were royal demesnes, were, as such, discharged of tithes, the prescription may be totally destroyed, so as not to revive, although the lands return into the king's hands again. (Compost V. Hardr. 315. S. C. Gwill. 514. Lord Hertford v. Leech, W. Jones, 387). So if a bishop, or ecclesiastical corporation, make a feoffment, or grant in fee, of lands which, in their hands, were exonerated from tithes, on account of their spiritual character, their feoffees, or grantees, can lay no claim to the same exemption. (Sy own v. Holme, W. Jones, 368. Vicar of Sturton v. Gresley, Saville, 3); though it seems, (contrary to the rule which we have seen laid down respecting the privilege of the crown in a similar case), should the bishop regain possession of the lands, his prescription will be revived. (Bishop of Lincoln v. Cooper, Cro. Eliz. 216). It has been thought possible, however, that the apparent anomaly which this case presents may be accounted for, on the ground that the bishop's alienation was thought to have been a compulsory one, enforced by the power of the Duke of Somerset, whilst he was all but absolute, during the minority of Edw. VI., and that, notwithstanding this usurpation, the right to the lands remained all along vested in the bishop. (Page v. Wilson, 2 Jac. & Walk. 530). But the king is capable of prescribing de non decimando for himself and his farmers; although crown lands are not exempt from tithes, merely as belonging to the crown, without an express prescription alleged and proved. (Countess of Lennox's case, 2 Leon. 71. Fosset v. Franklin, 3 Keb. 217. Ingoldsby v. Wivell, Hardr. 382. Dickenson v. Greenhow, Poph. 158). And not only the annual farming tenants of a bishop, (Bishop of Winchester's case, 2 Rep. 45), but the copyhold tenants of his manor, notwithstanding they may have estates of inheritance, or even in fee, in such copyholds, may have the lands so holden exempted from tithes, by virtue of the bishop's prescription, in whom the freehold of such lands remains. (Wright v. Wright, Cro. Eliz. 511. Crouch v. Fryer, Cro. Eliz. 785. S. C. Yelv. 3. Hughes v. Keene, Godb. 183. Stephenson v. Hill, 3 Burr. 1278). Of course, these last resolutions apply equally to the tenants of any other person, or corporation, capable of prescribing de non decimando, as to the tenants of a bishop. And it seems to admit as little doubt, that where the land itself is exempt, it is discharged in whatever hands it may happen to be. (Benning v. Dowce, Buub. 26). generally speaking, it is an established rule, that, in lay hands, modus (43) de non decimando non valet (x). 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 (y) (44): 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 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 (2). Though upon the dissolution of abbeys by Henry VIII., most of these exemptions from tithes would have fallen with them, and the lands become titheable again; had they not been supported and upheld by the statue 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 (45). And from (x) Ibid. 511. (y) Hob. 309. Cro. Jac. 308. (≈) 2 Rep. 44. Seld. Tith. c. 13, s. 2. Spiritual persons how discharged of tithes. or corporations, [ *32 ] (43) It is not very accurate to speak of a modus de non decimando; a modus, as our author has taught us, is a particular manner of tithing; where the privilege asserted is that of not paying tithes at all, præscriptio is the more proper word, as the commencement of the paragraph shews Blackstone to have been well aware. It would be idle to notice so trivial an oversight, if some of the books of practice had not copied it, by which a non-professional reader might be misled into supposing, that modus and prescription are, in all cases, convertible terms. (44) See ante, note (26). (45) This provision extends not only to such possessions as vested in the king by force of the said act, but also to possessions which vested in him by the subsequent act of 32 Hen. VIII. c. 24. (Whitton v. Weston, T. Jones, 187. Star v. Ellyot, Freem. K. B. R. 299. Fosset v. Francklin, T. Raym. 225). But, with respect to such lands of the lesser abbies as were only exempt from tithes ratione ordinis, and so long as propriis manibus excoleban Lands, in lay hands, formerly belonging to abbeys, discharg ed of tithes. III. Common, this original have sprung all the lands, which, being in lay hands, do at present claim to be tithe-free: for, if a man 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 non decimando. But he must shew both these requisites (46); 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 its 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 (a). is of four sorts: And hence common is chiefly of four sorts: common of pasture, of piscary, of turbary, and of estovers. 1. Common of pasture-which is either appendant, 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). *Common [of pasture] appendant is a right belonging to the owners or occupiers of arable land (47), 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 ma (a) Finch. Law, 157. (b) Co. Litt. 122. tur, and which abbies were dissolved qualification of this doctrine. (47) See ante, note (10), to chapter 2, that common of pasture may be appendant to a messuage or cottage. And see also post, note (54). The enjoyment Sy- of right of common of pasture has received some beneficial regulations, by stat. 13 Geo. III. c. 81, ss. 17-21. nure the ground (48). This is a matter of most universal right: and it was originally permitted (c), 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 the lords' wastes, and on the uninclosed 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 (d). Common appurte- appurtenant, nant ariseth from no connexion of tenure, nor from any absolute necessity: but may be annexed to lands in other lordships (e), or extend to other beasts, besides such as are generally commonable; as hogs, goats, or the like, which neither plough nor manure the ground. This not arising from any natural propriety or necessity, like common appendant, is therefore not of general right; but can only be claimed by immemorial usage and prescription (ƒ) (49), which the law (c) 2 Inst. 86. (d) Stiernh. de jure Sueonum, 1. 2, c. 6. (e) Cro. Car. 482. 1 Jon. 397. (How v. Strode, 2 Wils. 274. Benson (48) Common appendant may, by usage, be limited to any certain number of cattle; but where there is no such usage, it is restrained to cattle levant and couchant upon the land to which the right of common is appendant; and the number of cattle to be so considered and allowed, shall be ascertained by the number of cattle which the land is equal to maintain during the winter. A claim of right of common, without any limitation, is not recognized by our courts of law. (49) When a man prescribes for common for a certain number of cattle, as a right appurtenant, it is not necessary to shew that they were levant and couchant, for the number being ascertained, no encroachment is possible. (Richards v. Squibb, 1 Ld. Raym. 726). nage, esteems sufficient proof of a special grant or agreement for because of vici- this purpose. Common because of vicinage, 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 (50). 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 inclose 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 into the other's common: but if they escape, and stray thither of themselves, the law winks at the trespass (g). 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 (g) Co. Litt. 122. [ *34 ] or, in gross; But, a man who claims common ap- Mr. Wooddeson (in his 21st Vin. right." As Mr. Wooddeson is fully borne out by the authority of the cases of Sacheverill v. Porter, Cro. Car. 482. Wyatt Wild's case, 8 Rep. 157. Tyringham's case, 4 Rep. 38. and Gawen v. Stacie, 1 Rolle's Ab. 400; the passage in our author's text must be qualified. (50) Common because of vicinage can only be used by cattle levant and couchant upon the lands to which such permissive right of common is annexed. (Sir Miles Corbet's case, 7 Rep. 66). Common for cause of vicinage is not common appendant; but, inasmuch as it ought to be by immemorial prescription, it is in this respect resembled to common appendant. (Tyringham's case, 4 Rep. 38). It seems, that common because of vicinage can only subsist between two immediately adjoining townships; and not where they are separated, however slightly, by any |