V. 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. 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 holden, that this action may be maintained by one commoner against another for a surcharge", although the plaintiff himself has been guilty of a surcharge. In the declaration it is not necessary for the plaintiff to set forth the defendant's right of common, and shew in what manner he has exceeded that right", by putting in a greater number or an improper species of cattle; but the disturbance may be alleged generally (12) thus, "that the defendant wrongfully and injuriously ate up and depastured the grass on the common with divers sheep and lambs, to wit, 200 sheep and 200 lambs." Neither is it necessary that the plaintiff should state that he was exercising his right of common at the time of the surcharge. VI. Evidence. IN replevin defendant avowed taking the cattle damage feasant, plaintiff prescribed for common in the locus in quo as appendant to his messuage. The plaintiff produced as a witness a person who claimed common in the same place. 1 F. N. B. 125. B. m Hobson v. Todd, 4 T. R. 71. o Wells v. Watling, 2 Bl. R. 1233. (12) 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 shew a particular surcharge. His testimony being objected to, Raymond, C. J. overruled the objection, observing that where a person prescribes for common, not as appendant to his messuage, but by virtue of a custom within a parish or manor, and the custom is in issue, there a person within the manor or parish claiming common is interested, and cannot be a witness: but where a person prescribes for common, for all cattle levant and couchant on his messuage, as belonging to that messuage, there is nothing but that person's particular right of common in question, as belonging to that particular messuage; and another person who claims common in the same place by virtue of another messuage, may be a witness, because not interested in the present question. Trespass for entering plaintiff's close with cows and sheep, and destroying his grass. As to sheep, plea not guilty, and issue thereon. As to cows, defendant justified, and prescribed for common, for all cattle (except sheep) levant and couchant on defendant's messuage, and one acre of land; the issue was on the levancy and couchancy. The evidence on the first issue was, that defendant's sheep were seen at several times depasturing in locus in quo, and that at such time the defendant's shepherd was with them. Mr. Gatward, (recorder of Cambridge) for the defendant, insisted, that as it did not appear that defendant had knowledge or consented, that his sheep should feed there, and had a servant to take care of them, the shepherd, and not the defendant, was the trespasser, and that the action could not be maintained against the master'. Per Lord Raymond, C. J. "The action lies against the master, his sheep did the trespass; he has his remedy against the servant." As to the second issue, the evidence was, that defendant was seized of a copyhold messuage, and one acre of pasture land, that he foddered eight or nine cows in the yard of the said messuage with hay brought from another farm about two miles off. Lord Raymond, C. J. "These cows cannot be levant and couchant upon the one acre; for I am clear that levancy and couchancy is a stint of common in contradistinction to common sans nombre, and signifies only so many as the messuage or farm will by its produce maintain; and it was so resolved in the case of the town of Derby'. I know there are cases q Rogers v. Benstead, Cambr. Sum. r Ass. 1727. cor. Ld Raymond, C. J. s 2 R. A. Mellor v. Spateman, 1 Saund. 343. 1 Mod. 7. which say, that foddering in a yard makes levancy and couchaney, but then the meaning is, foddering with stubble, &c. produced from the messuage or land itself, to which the yard belongs; for example, if an acre of land will produce only so much hay, &c. as will maintain but one cow, the occupier shall not put two on the common, because he fodders them in the yard with the produce of other land; for, by the same rule, he might put 1000 of his own, or of other persons, and deprive the other commoners of the benefit of common." Trespass for impounding plaintiff's colt and three fillies'. Defendant sets out his right to a messuage with the appurte nants, to which the defendant has a right of common belonging in the loc. in quo, and that defendant took the cattle damage feasant. Plaintiff replies, that he is possessed of a copyhold messuage in Drayton, and prescribes for a right of common in the loc. in quo, for all commonable cattle, levant and couchant, on the said messuage, at all times of the year. Defendant protestando, that plaintiff has not such right, traverses the levancy and couchancy of the beasts taken, and issue thereon. Per Lee, C. J. "The protestando is not part of the issue, and need not be proved." It appearing by the evidence, that the messuage was only a yard where the horses were foddered, and one acre of orchard, with the produce of which the plaintiff could not maintain the colt and three fillies, and for that reason he foddered them with hay and straw from other land hired by him. Per Lee, C. J. "These beasts cannot be levant and couchant on this yard, though they are foddered there, unless they can be foddered with the produce of the messuage, and so it was determined by Lord Raymond in Rogers v. Benstead at Cambr. 1727, after much consideration, that levancy and couchancy signify what the produce of the estate will bear, and is a stint of common with respect to other commoners; and I know no difference as to this, whether the common is for the whole year, or for half a year only." Lord Raymond, in the above case, cited 1 Ventr. The foddering cattle in a yard is said to be evidence of levancy and couchancy, Salk. 169; but it must be foddering with the produce of the ground belonging to the mesSuage. Plaintiff non-suited. N. There may be common appurtenant to a messuage with appurtenants; but not to a messuage only. In replevin" the plaintiff prescribed for common for horses by reason of his messuage. The evidence was of a right of t Fulcher v. Scales, Norfolk Sum. u Coney v. Verden, Norfolk Sum. Ass. Ass. 1738. MSS. Serjt. Leed's. 1727 Serjt. Leed's, M.S. common for horses and sheep. Raymond, C. J. "It has been adjudged, that in replevin this is no variance from the prescription; for the prescription for a common for horses and sheep is a justification of common for the cattle taken." So evidence of a right of common for sheep and cows will support a plea prescribing for common for sheep*. In an action on the case against defendant, plaintiff declared, that he was possessed of a messuage to which a right of common for all commonable cattle was appurtenant, and that defendant put his cattle on the said common, and also dug up part of it; per quod, the plaintiff could not enjoy his common in tam amplo modo, as by law he might. As to putting in his cattle, plea, not guilty; and, as to digging up the common, justification, that it was to make a watering place necessary for drink for the cattle on the common. On the first issue, it was insisted, for the plaintiff, that the defendant could not give in evidence his right of common, on Lord Holt's opinion in Salk. But, per Pengelly, C. B. "In trespass vi et armis the only evidence of defendant, on not guilty, is, that he did not come on the ground, and a right to do so must be pleaded. But here the whole declaration is in issue, and so the per quod he could not enjoy in tam amplo modo, as of right he ought, is part of the issue; and if defendant proves that he has a right, then, notwithstanding the plaintiff's complaint, he does enjoy, &c. as of right he ought. This point was settled by the Court of C. B. in a case I argued, which came before the court on a motion for a new trial, in a cause tried at Cambridge before the present Lord Chr. King, when C. J. of C. B. who had ruled that the defendant could not give in evidence his right of common; and on a motion for a new trial, Tracey, J. seemed surprised at it; and it was ruled otherwise by the court, and a new trial granted." x Bridges v. Sacr, 4 Mod. 89. y Bennett v. Spinke, Norfolk Sum, Ass. 3 G. 2. Serjt. Leed's, MS. СНАР. XII. CONSEQUENTIAL DAMAGES. Of Actions on the Case for consequential Damages, and herein of the general Rule for distinguishing Actions of Trespass vi et armis from Actions of Trespass on the Case. A QUESTION frequently arises respecting the form of action, which should be adopted by a person who has sustained an injury; that is, whether the proper remedy is by action of trespass vi et armis, or trespass on the case: and as, in order to avoid confusion, the judges have at all times been anxious that the boundaries of actions should be preserved, it may be proper to remark, that the true distinction, (and which seems to be now settled ',) is, that if the injury be occasioned by the act of the defendant at the time, or the defendant be the immediate cause of the injury, trespass vi et armis is the proper remedy: (1) but where the injury is not direct and immediate on the act done, but consequential only, there the remedy is by action on the case, sometimes termed an action on the case for consequential damages. The following case will illustrate the rule here laid down: On the evening of the fair day at Milborn Port in Somer a 3 Wils. 411. 1 Bos. & Pul. 476. Hughes, 2 T. R. 231. and Kenyon (1) "Looking into all the cases from the year book in the 21 H. 7. 28. a. down to the latest decisions on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally, or by misfortune, yet he is answerable in trespass." Per Grose, J. in Leame v. Bray, 3 East's R. 600. |