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his tenants, &c. every year when the common field should be
Shepherd Serjeant for the Plaintiff in error. The replication
bring an aslize of novel diffeisin for their common of pasture, 46 and it is acknowleged before the justices that they have as much
pasture as fufficeth to their tenements, and that they have free
egress and regress from their tenement unto the pasture, then let “ them be contented therewith.” Sufficiency of common is the right, and ingress and egress are the means of enjoying it. The
ditinction of the other fide admits that the commoner has a right
“ in another's land, and the owner makes a hedge on the land “where the common is, I may break down the whole hedge; “ but if he incloses the whole land in which the common is, by “ making a hedge on other land which surrounds the land in “ which the common is, I may not break down the whole hedge, 6 but only part, so as to have a way to the land where the com6 mon is, and this is the diversity.' So Co. 2 Inst. p. 88. . “ If “ the lord doth inclose any part, and leave not sufficient com
mon in the residue, the commoner may break down the whole ** inclofure, because it ftandeth on the ground which is his s6 common.” See also 29 Ed. 3. 6. Now this proves that the commoner may
abate a nuisance on the common, as well as one obstructing his way to the common, only confining his abatement to the extent of his injury. The facts of this
case do not vary the principle. Upon the record it must stand confessed that the lord infringes the right of common tam amplo modo. He does not say, I did this act as lord, and left a fufficiency, which he ought to do, for otherwise he does not shew, that he has planted legally. In Mafon v. Cæfar, 2 Mod. 66., the commoner did not state that he was deprived of his enjoyment altogether, but only in ea parte where the hedges stood, and so juftified pulling them down; and the iffue was, whether he could enjoy tam amplo modo, &c. and judgment was given for the commoner. This warrants my argument; for it is the same thing whether a hedge or a tree be planted on the common. (Buller J. Are you aware that Mafon y. Cæfar was decided on the point that the hedge was no part of the foil.) Meddling with the foil or not does not decide the question; if it did, it would equally apply where the obstruction was total as where it was partial. For in both cases the lord is equally entitled to the foil, and in the latter the commoner's right to abate has been acknowledged. As in 29 Ed. 3. 6. where the defendants juftified cutting down trees, because they were planted in a hedge which deprived them of ingress to the common. It is true that there are several cases(a) to Thew that a commoner has no right to destroy the beasts or coney-burrows of the lord, though they do not leave him a fufficiency of common; and the reason why abatement is not there allowed, is because the beasts and conies are only in the nature of a surcharge. A free warren is compatible with a right of common: but the right exercised here is incompatible. An erection
(a) Cope v.Marfall, Will.51. Cooper v. Marfall, Burr. 259. and the cases there cited.
by the lord is no enjoyment of the common quà common, but is 1797 rather a subftraction of the common itself. In the case of free varren the commoner may not redress himself; for though his right and that of the lord are not of the same nature, the modes of SADGROVE. enjoyment are. A furcharge is not a continued nuisance, but an erection is: to confine the party therefore to an action, would be to give him a perpetual right of action. Suppose the commoner were to bring an aslize of nuisance, he would then have a right to abate after recovery: then why should he not as well abate before? for the reafon for abatement given in the books is to prevent a multiplicity of actions. There is no distinction in principle, between defiroying the enjoyment of a right and preventing the enjoyment tam amplo modo. There are cafes where total and partial obfi ructions of rights have been considered as equally abateable; and I have found none the other way but those relating to free warren.
Williams Serjt. for the Defendant was ftopped by the Court.
EYRE CH.J. This case is governed by that of Cooper v. Marshall unless a good distinction can be stated between them. A tree is not an erection on the foil; it is the very fruit and produce of the foil, it is part of the foil and freehold itself, and does it not pass as such? In public ways you might abate a tree, becaufe it would necessarily be a nuisance. But in cafes like the present, it will be a nuisance or not, according as it injures the easement or not. This case has been argued as if it were a case of approvement under the Statute of Merton; but in fact it is no such thing. The right here exercised by the lord is an original right in the soil, prior to that of common, which is only concurrent with it. But where there is a right of common the lord's right must be so exercised as not to injure the commoner. If the lord fo use it as to desiroy the easement, such an act would be confidered as a nuisance, and abateable. If the casement be injured to a certain degree only, or if it may be a question whether injured or not, in the nature of things it cannot be a subject of abatement. The easement in question is a right of pasture over the whole foil, consistent with a free warren in the lord, and, as I think, with a right to plant. If the eafement be injured, the commoner may bring his action and have satisfaction in damages. Even where the right of common is totally destroyed, and the commoner may, generally speaking, abate the nuisance; yet if he cannot abate it without interfering with the right of soil in the lord, he must not pursue that remedy. We cannot overtuin the case of Cooper v. VOL. I.
Marshall. Indeed we ought to adhere to it, not only as founded in principles of law, between the commoner, and his lord, but also in principles of general convenience. Abatement ought to be allowed in very few cases; for the abator is judge in his own cause. The just measure of damages sustained will be best found by an action.
Unless the clearest analogies compel us to pronounce in favour of abatement, there can be no reason to strain a point in order to give that remedy. It is a remedy in addition to that given by action, and ought to be allowed but sparingly. I think the case of Cooper v. Marshall decisive.
CROWDER V, WAGSTAFF.
e Blanc Serjt. moved for leave to compound in a qui tam not give leave to
action after verdict on the usual affidavit, saying that the compound in a penal action, fame had been done by consent in the King's Bench. (a) after verdict, unless the De- Shepherd Serjt. on the part of the Plaintiff consented. fendant can thew circumitances
per Eyre Ch.J. What case do you make for such indulwhich entitle him to fuch an gence? We cannot pay attention to the consent of the Plaintiff, ndulgence. after verdict. I do not know that the Court can do this without
the consent of the Attorney General. It is no longer compounding; the debt is ascertained, the suit is at an end, and the Crown may intervene. Here the affidavit states no circumstances to entitle you to this indulgence, if we are at liberty to grant it; at least you ought to ftate a case of favor. You must pay the whole money into Court. (6)
(a) The case alluded to by: Le Blanc pro- who was then in execution, on an affidavit bably was Maugban v. Walker, 5 T.R.98. of his poverty. But in Brery qui tam v. but there favorable circumstances were Levy, i Blac. Rep.443. which was a popular stated on the part of the Defendant. indictment on the coal act, the Court re
(6) In Bradfoaw v. Mottram, i Str. 167. fuled leave to compound after verdict, faythe Plaintiff obtained the leave of the ing that the King's moiety was vested. Court, to compound with the Defendant