led Hingell-Hall in L. and of a moor called Kingfly-Moor in D. and the tenants of Sir R. G. have used to have common in the faid moor; and Sir R. G. being feised, did demise the faid tenements to K. for her jointure by these words, by the name of Hingell-Hall, and certain land, meadow and pafture in certainty, and with all lands, tenements and hereditaments to that belonging, or with that occupied, or enjoyed, now, or late in the tenure of one N. and N. was tenant of the faid premises, and had common in Kingfly-Moor. The queftion was, if K. by this demife shall have common in Kingfly-Moor, or not? If it were taken to be a common, it did pafs. But by Coke, this is only a feeding, and not an hereditament; and if fo, it shall be intended the like feeding that the tenant hath. Quære. 2 Brownl. 52. Hargrave's cafe.

One grants to a man and his heirs common as appurtenant to his manor of F. to common in fuch a moor, &c. by this grant the grantee fhall have common appurtenant to this manor; and if he makes a feoffment in fee, or for term of life, of "the manor, the feoffee, or leffee, fhall have this common. So it is of common of eftovers or turbary. Note, common appurtenant to a manor, may be by grant by deed, fince time of memory; and this as well for beafts certain, as beasts without number. So is Rolle, Fitz. N. B. 180. n.

If at this day a grant de novo be made of common of pafture for beasts levant and couchant on his manor of Dale, or common of eltovers, or turbary in fee, to be¦ ufed or spent within his manor; these are common appurtenant, and will pafs by grant of the manor. 1 Inft.

121. b.

But if A. feifed in fee of Black Acre, and White Acre, grants Black Acre to C. with common for the beafts levant and couchant upon W. Acre, this is not good with out deed. 2 Roll. Abr. 63. Tanner and Hobb's cafe. If A. being feifed of 100 acres of land, to which common for beats levant and couchant upon the land is appurtenant, and by grant within the time of memory, grants to of thefe acres only, without faying cum pertinentiis; yet a proportionable common for beats levant and couchant upon thefe 10 acres fhall pafs,inafmuch as it is appurtenant to the faid acres, and the common is to be

Grant of common expreff

eth not any place certain.

cafe.

By the grant of all lands and tenements common grofs fhall not pafs; and common in grofs fhall not p by the grant of all his paftures. 2 Roll. Abr. 57.

3. The Expofition and Extent of Grants of Common.

One feifed of the manor of C. and of 42 acres, par of the faid manor (where the trefpafs was.) and of a m fuage, and two yard lands parcel of the faid manor, vied a fine of the faid meffuage, and two yard-lands the defendant, and granted them to the defendant and heirs; and further, by the faid fine granted to him co mon for 4 horfes, 5 beafts, and 200 fheep in the fa manor and lands in C. This plea is good, though doth not plead that it was wafte or common. For by t plea (as the fine is) he may claim common in any pa of the manor; for there is not any restraint as to t wafte or common. Cro. Car. 599. Strange's cafe.

If a man grant common to another for his bea through all the manor; yet he may not common in t garden of the grantor parcel of the manor, but only fuch place where a man of common right ought to cor mon, nor in land fowed, nor with beafts not commonabl 9 H. 6. 36. 3 Leon. 250. Finch. 158.

If a man grants land to one with right of common all his lands, &c. and does not exprefs any place in ce tain; he shall have common in all lands which he ha at the time of the grant: but if I grant common another for years, and do not declare in what place shall have it, it is void. 1 Bulfr. p. 18, Fitz, N. B. 18 Grant of common to a man wherever his cattle fha go, how it fhall be expounded, 6 Rep. 64. 2 Rep. 32.

If a man grant common newly created, whenever h cattle fhall go in, the grantee fhall not have commo there, but in this very manner. 1 Rep.87.a.in Corbet'scaf

A man grants common newly created wherever h cattle fhall go; this is the form of that gift, and th grantee fhall have common there, but in this manner, it is here expreffed.

a

If a man grant to me common for my beafts whereve my cattle may go, if the beafts of the grantor never de paftured in any place before the grant, or at the time o the grant, or after, the grantee shall not have any benefi

by the grant, But upon fuch a grant, or after, the GRANT. grantee fhall not have any benefit by the grant. But upon fuch a grant of common, if the grantor depaftured his beafts at the time of the grant, or after, in any place, the grantor may common there alfo. 9 H. 6. 36.

If a man grant common to another wherever his cattle shall stray, and after he occupy and manure 100 acres of land with his beafts; and after he is fo poor that he has not any beafts; yet the grantee fhall have common in the 100 acres. Yet it is faid in Latch, in Whitton and Wefton's cafe, (in the argument of that cafe), if a man grant common whenever his cattle fhall go there, and after the grantor had no beafts, the grantee shall not have common, because the time that the grantor had com-mon is material. Latch. p. 90.

And upon fuch grant of common wherever the cattle of the grantor fhall go, if the grantee put in his beasts into his garden or corn, the grantee may put in his beasts there allo. 9 H. 6. 36.

But in cafe of fuch a grant of common, if the grantor die; it is made a doubt in that book, if the grantee fhall have common after his death.

Now in the grant of common, when and wherever his Averment in cattle fhall go; he ought to aver in pleading, that the pleading. cattle of the grantor went in the fame place. Juftice Berkley held the claufe of wherever, &c. is not good, because it reftrains all the effect of the grant; for if the grantor will not put in his cattle, he fhall never have common. But it was anfwered, that exprefs agreement fuperfedes the law. Therefore, he that grants co nmon wherever his cattle fhall go, may till the land, or let it lie freth, and the grantee has no remedy. Cro. Gar. 599. Stringer's cafe, Hob. p. 40.

If a man grant common without number, the grantee Grantee of a may not put in so many beafts, but fo that the grantor common with may have fufficient common in the faid land. 12 H. out number 8. 2.

he

he

If a man grant common for all manner of beafts, shall not have common for pigs and goats; yet if a man grant common for all manner of beafts, except goats, Thall have common for hogs, becauf of the particular ex ception. 2 Roll. Rep. 280.

Note, One cannot improve against his own grant, though it be to a certain number. Keb. 430.

must leave fuf-
ficient common

for the grantor,
Common for all
manner of
oraft it extends,
beatts, to what

or not. The

effect of a paticular exception in a grant

GRANT,

Where it will

A grant of land with common, or eftovers to be burnt. if he let the land, the common or eftovers will not pafs without deed, and exprefs words therein, because they not pafs without be profits. Aliter of a way. Cro. Bac. 190. in Bendly and Brook's cafe.

deed.

Pafs without

4. In what Cafes Common will pass quithout Deed.

As to common paffing with the grant of the land to which it is appurtenant, &c.

A common fhall pafs without deed as appurtenant to deed as appurte- land, though it cannot be created without deed. Sacheverel and Porter.

nant to land,

though not created without deed.

Grant of common de novo without deed, not good.

Difference be

common and

grant of pafturés.

À common paffeth not without deed, because it lies in grant, and not in manual occupation, i. e. it may not be created without deed. Dr. and Stud. fo. 18. a,

If A. feifed in fee of Black Acre and White Acre, grants Black Acre to C. with common for the beafts levant and couchant on White Acre; this is not good without deed. 2 Roll Abr. 63. Tanner and Hobb's cafe.

If A. feifed of land in fee, grants the pafture of the tween grant of land to B. for years, and B. licenfeth C. to put in his beafts; this leafe of paflure is good without deed, and the licenfe alfo. For this is a leafe of the land to pasture, and not like to common of pafture. Otherwife, had it been if he had granted pafture for certain beafts. Mountjoy and Tierdrue, 2 Roll. Abr. 62,

Where they

out attorament.

If a man who had common of pafture, or eftovers to a fhall pass with certain number, grant them to another, they shall pafs without attornment. Grantee of a common may grant it over, before any feifin by the mouths of his beaits, becaufe it is not to be taken by the hands of the grantee, but by the mouths of the cattle. 31 H. 8. 151. 151. 2 Roll. Abr. 47.

Where a grant
of common
fhall be good by
relation to a

precedent bargaince or not.

If a man bargain and fell Black Acre to B, and after, before the deed enrolled, by another deed grants common to the faid B. for all his beafts which fhall manure and depafture the faid Black Acre, which he had bargained and fold to the faid B. wherein he had mentioned it to be bargained and fold; and after the deed is enrolled: this is a good common appurtenant to the faid Black Acre, although the grantee had nothing in Black Acre at the time of the grant; and although it be admitted, that this fhall not relate to fettle the eftate in him, ab initio, inafmuch as it had reference to the bargain and fale, and

to the eftate, which he fhould have by force of this, I GRANT. Roll. Abr. 399. Gawen and Stacy's cafe.

land in which,

So if a man grant common to another, for all the Though the beafts which shall be levant and couchant upon the land, grantor had nowhich he fhall purchase within a month after, and after thing in the he purchase certain land, this is a good common appur- &c. at the time tenant to this land, although he had nothing in it at the of the grant. time of the grant, forafmuch as the grant had reference to that which he shall purchase, and it is not neceffary that he should have the land at the time of the grant. Roll. Abr. 400. Gawen and Stacy's cafe.

to the bargain;

So if a man bargain and fell Black Acre to B. and after, And though the before the deed enrolled, by another deed grants common grant had not to the faid B. for all his beafts, which should manure any reference and depafture the faid Black Acre, and after the deed is if there were an enrolled, this fhall be good common appurtenant to the inception of the faid Black Acre, although the grant had not any reference estate, it thall to the faid bargain and fale, inafmuch as the grantee had fupport the a poffibility, and an inception of an eftate, and ufe in the acre at the time of the grant; and it feems, this shall fo relate to the poffeffion as fufficiently to fupport this grant; for there needs not fo full an intereft in this land, to annex the common to it. See below.

grant.

not good,

But if the grant had no reference to any future pur- A grant that chase; as if a man grant to B. common for all his beafts vefis merely ia that shall manure Black Acre, where he had nothing in contingency. Black Acre, and after he purchaseth Black Acre, this grant of common is not good, upon a contingency, (viz.) if he purchase the land. Though I conceive the law in this cafe to be otherwife. For it may be good by way of covenant, but not to pafs an intereft. See below. One that had common of pasture cannot license another Licence cannot to feed there, with such a number of beats, without deed; but after verdict it fhall be aided; for it fhall he intended a good licence by deed, when the defendant took iffue upon another point, (viz.) the custom. Cro. Fac 575 Monk and Butler's cafe. 2 Saund. 326, 327. in Hokins's cafe. 2 Show. c. 81.

be without feed,

One joint-tenant grants common to his companion A. Grants of com for his own proper beafts. It is a quare in 1 Keb, whe- mon for his own ther it be good, and if A. inay put in fuch beafts whereof proper beafts, he is joint-tenant, or tenant in common with another? may put in or 2 Keb. 795.

If A. feifed of land in fee, grants the pafture of the land

what beafts ke

not.