case hopkins against Robinson and other Hilary term car roll a custom for the  tenant of a manor to have a sole and separate pasture in exclusion of the lord  be good S C sand S C vent S C pollexfen modern er p to S C lev S C keb sand  vent cro James Poph l lev sand Mod Mod Mod comens Peer wms Com dig dougl  replevin in this case these point be speak to by pollexfen in arrest of  judgement videlicet first whether a custom to have a several pasture exclude  the lord be a good custom or not it be say that a prescription to have common  so be void in law and if so then a prescription to have sole pasture which be  to have the grass by the mouth of the cattle be no other than common appendant  daniel case cro car so that common and pasturage be one and the same thing  they say that it be against the nature of common for the very word common  suppose that the lord may feed I answer if that be the reason then a man can  not by law claim common for half a year exclude the lord which may be do by  law but the true reason be that if that be allow then the whole profit of the  land may be claim by prescription and so the whole land be prescribe for the  lord may grant to his tenant to have common exclude himself but such a common  be not good by prescription sander contra in case of a common such a  prescription be not good because it be a contradiction but here we claim  solampasturam now what may be good at this day by grant may be claim by  prescription hale chief justice notwithstanding this prescription for sole  pasture yet the soil be the lord and he have i tree bush c and he may dig for  turf and such a grant videlicet of the sole pasturage will be good at this day  Edward though a grant by the lord that he will not improve will be a void  grant at this day Twisden justice Lord coke be express in the point a man can  prescribe for sole common but may prescribe for sole pasture and there be no  authority against he and for levant et couchant it be adjudge in Stoneby v  Muckleby a side a that after a verdict it be help the second point be admit  that it be good whether or no the prescription here not be for beast levant et  couchant be good or not for that a difference be make betwixt common in gross  and common appendant videlicet that a man may prescribe for common in gross  without those word but not for common appendant cro James Brownl Noy Edward  fol roll title common Fitzherbert title prescription as to the exception that  we ought to have prescribe for cattle levant et couchant it be true if he do  claim common for cattle levant et couchant be the measure for the common  unless it be for so many cattle in number but here we claim the whole herbage  which perhaps the cattle levant el couchant will not eat up a three point be  whether or no these thing modern be not help by a verdict as to that it be  allege that they be defect in the title appear on record and that a verdict do  not help they a this objection be admit the tenant of the manor have under  this custom a right to licence a stranger to put in his cattle that the  plaintiff have not show the licence to be by deed and the case of monk v  butler cro James be rely on to show that the plaintiff can not maintain his  action for want of title S C sand but it be say that this be not lie as a  prescription in the tenant but as a custom in the manor and therefore title be  not necessary to be show S C vent the court be of opinion that such licence  can not be grant without deed but that the issue be upon the custom it be aid  by the verdict S C sand a judgement be give accord for the plaintiff modern er  p michaelmas term the twentythird of Charles the second in the king bench  Monday October sir Matthew hale chief justice sir Thomas Twisden Knt sir  William Moreton Knt sir Richard Rainsford Knt justice sir Heneage finch Knt  attorneygeneral sir Edward turner Knt solicitor general