case staple against Mellor a prescription by a burgess that the mayor and  burgess of the corporation have time out of mind have a right of common for  themselves and each of they in such a place be good replevin the defendant  avow for damage pheasant the plaintiff reply that they and their predecessor  and all the burgess c have time out of mind have common in such c Weston  sergeant move in arrest of judgement there have be a verdict for the plaintiff  that their prescription be only for cattle belong to the corporation c and  take a diversity between interest and easement a for interest be so apply to  shower KB the body politic that none can make use of they but in their politic  capacity and if the plaintiff will have plead well they shall have prescribe  as particular tenant to the mayor and burgess Mr holt e contra this very case  in as many word have be adjudge in Lord a by Ann c S No dilatory plea shall be  receive in any court of record unless the party offer such plea do by  affidavit prove the truth thereof or show some probable matter to the court to  induce they to believe that the fact of such dilatory plea be true b Mod a    cro Elizabeth cro James cro car shower KB er p hale time in the case of walker  v miller b where the defendant justify in the bailiff and burgess until what  time c and then in the mayor alderman and burgess for all cattle levant et  couchant within the borough and that the defendant be a burgher and on  demurrer thereto because say not seize of any land to which it may be  appurtenant it be hold that they may have common appurtenant to the borough by  prescription and the common course be to lie it in this manner there be no  other way to allege it but this the entry be all so and when it be say for  their cattle it be mean distributive and not as Mr sergeant Weston will have  it only for the cattle which belong to the corporation in general if a grant  be to a corporation of all its freeman to be exempt from toll or the like and  any of they be distrain he may bring a action in his own name Weston afterward  move it again and argue that this be a common appurtenant for all beast infra  burgun be nought because a common appurtenant can be prescribe for beast  levant in another solon and cite roll title common and he insist upon the case  Edward where such a prescription be hold nought c but agree by coke that it  may be good for the mayor c to prescribe for themselves and all the inhabitant  because they shall be suppose tenant at will but to lie it in the burgess for  all themselves be sure nought d Mr holt e contra the constant rule be that  which may be suppose to have a reasonable commencement for such a thing a  prescription may be it be no new thing for a corporation to have a estate and  the member to have a interest in the case of miller v staple e of the  corporation of Derby it be hold a corporation may prescribe to have a common  without number in gross and in the case of Hoskins v Robinson f by way of  custom it be hold good we have shower KB not lie it a common appendant for  then we must have lie it in a will and that they be seize of all the will but  it be lie as a common without number and a corporation may have that upon a  like reason a common may be stint for particular beast and why may not a  corporation have it why may not a man have a interest of common for his own  proper beast in the right of the corporation of which he be a member he may be  sue by his proper name and by the name of the corporation both if he commit a  trespass by command of the corporation g in the case of miller v Spakeman h it  be hold that if it have be say for beast levant et couchant within the will it  will have be good Weston sergeant grant that a personal prescription may be so  as Mr holt will have it but not a real prescription for there the inhabitant  have too weak a estate dolben justice say that there may be a prescription for  common by way of custom as there be in York and Gloucester where they have by  usage a common in land adjoin for half the year even from Michaelmas to  ladyday Pemberton justice the only difference between you two seem to be  whether this ought to be lie by way of custom or by way of prescription  Scroggs justice the pure nature of a common in gross be for all his cattle  throughout the whole kingdom so they be cattle of the owner of the common this  at the bar in a strict sense can be neither in gross nor appendant nor  appurtenant but be as shack common and common in some place in Lincolnshire  and many other that can never come under either of these three and I see no  reason why it be not a common in gross when it be for all my cattle levant et  couchant on such and such acre of my land as well as for all my cattle  throughout the kingdom the jury find a right of common and because strict it  can be prescribe for as one of the three sort as Mr Littleton mention shall a  man therefore lose his common though we be to follow the rule of law yet  reason be to be observe too b this case be report side c a right to take  profit in another solon must be claim by prescription it can be claim by  custom Grimstead v Marlowe term Rep d   cro James Leon godb e Mod sander f Mod  g yearbook Henry pl h mich term car sand SC keb shower KB er p shower KB  Pemberton justice there may be other commons that be not precise of these  three and it be fit there shall be a remedy where it be clear that a man have  a right to which the rest agree and judgement be give for the plaintiff  videlicet that such a common be well enough allege by prescription as well as  by usage and custom I