Bridgman I Trin James SAMBORNE against HARILO in a action of trespasser for  that the defendant october Elizabeth the plaintiff free warren at Mouldford in  certain place there call Harecombe Harcombe coppice and the down do break and  enter and do therein hunt without the licence of the plaintiff and three bare  and three hundred cony do take and carry away continuando as to the say hunt  and take and carry away of the say hare and cony from the say ten day of  October to the first of November and further declare that the ten of April  James the defendant the say warren in the say place do break and enter and  therein without the licence of the plaintiff do hunt and twenty hare do take  and carry away continue the say hunt until the first of march next after c and  further declare that the ten of April James the say defendant the say warren  in the say place do break and enter and therein without the licence of the  plaintiff do hunt and forty hare and four hundred cony do take and carry away  continue the say hunt until the first of march follow contra peace c ad damnum  c the defendant as to the way arms and to the first trespasser except the  enter and hunt in the say place call the down and the take and carry away the  three hundred cony plead not guilty and as to the entry hunt and carry away  the say cony he say that the say place call the down be and have be time out  of mind common fundus contain by estimation two hundred acre of land and  pasture and that before the say ten day of September and before the say  trespasser and at the say time the defendant be seize of a message and six  yard land contain a hundred and sixty acre call the manor of Southbery in  Mulford aforesaid and that the defendant and all those who estate he have in  the premise time out of mind have have common of pasture in the say down for  and sheep levant and couebant upon the say message and six yard land and that  the defendant and all those who estate c have use for preservation of the say  common as often as the say common have be oppress and trouble with cony have  use of custom to have liberty to bunt and to take the cony wherefore the  defendant the aforesaid time of the aforesaid first trespasser and for  preservation of the say common from such oppression and diminution aforesaid  into the say down do enter and there hunt Bridgman I er p and the say cony do  take and carry away accord to the say customer and continue the say hunt all  the say time and as to the second trespasser beside the entry and bunting in  the say place call Harecombe Harecombe coppice and the down and the taling and  carry away two hundred cony he plead not guilty and as to the entry and hunt  in the say place c he say that the say place call Harecombe and Harecombe  coppice be woodland contain by estimation ten acre and that he be seize in fee  of the say message and six yard land and make the Bridgman I same prescription  as aforesaid for all his horse cow heifer bullock and two hundred and forty  sheep levant and coucliant upon the say tenement videlicet for the horse cow c  at the Feast of S George and from that time until the corn grow in the field  of Moulford be carry away and after the corn carry away for the sheep until  the four of march next after and make the former prescription for the sheep in  the down and the same prescription also for hunt and take away the cony as  abovesaid and so do justify the take of the say two hundred cony and as to the  three trespass beside the entry and hunt in the say place and the take and  carry away of the say four hundred cony he plead not guilty and as to this  plan lie make the same prescription as before upon which plea the plaintiff  demurrer in law and if this matter plead in bar be sufficient to bar the  plaintiff of his action be the question and it seem to I that there be nothing  in the defendant plea to binder the plaintiff from have judgement and the  better to argue upon this matter I will first endeavour to show what interest  a commoner have in the soil and what thing he may do upon the soil for  preservation of the say common whether this be a good usage and custom to  enable the defendant to hunt and kill cony in the plaintiff free warren and as  to the first I conceive that he that have common in another land have nothing  at all to do with the land any more then a mere stranger but only to put  therein his cattle and to let they feed there with their mouth and it be not  his own common until his cattle have feed there h the owner of a common can  grant the common to another use et h a prcipe do not lie of a common for it be  not my common until my cattle have eat of it and therefore that which another  have be not I therefore I can have a praecipe against he who have not that  which I demand and in the assize and h if a man have common in another man  soil and a stranger put in his cattle there the commoner shall not have a  action of trespasser for although he have common yet the herbage do not belong  to he neither can a commoner do any thing upon the soil which tend to the  melioration or improve of the common as to cut bush fern or such thing which  do much impair the common neither can he make a fence or ditch to let out the  water which spoil the common but if he be utter disturb of his common he may  have a assize or a quod to let pass and if any damage or annoyance be make  upon the land whereby he losess his common he may have a assize and as the  commoner may not meddle with the soil so can be meddle with any thing arise  out of the land or that do grow or be nourish by the same otherwise then to  have his cattle to feed there and therefore it be adjudge mich James that a  commoner can kill cony there but may bring his action on the case but I agree  that a commoner may distrain cattle damage pheasant because their be there be  a damage not only to the owner but also to the commoner and a commoner may  abate a hedge or a case that hinder he from come to his common wherefore I  conclude this first matter that the plea as to that be utter insufficient  Bridgman I by the law if there be not a special custom allege by the defendant  and there before it be to be consider whether this prescription allege by the  defendant to hunt and kill cony there for preservation of his common be good  or no and I conceive it be unreasonable and not good because it be to the  prejudice of the owner of the soil without any consideration and it be  unreasonable for two cause first because it be too general for the defendant  may hunt and kill as many cony as he will for he do not claim to kill a  certain number that do surcharge the common but general the cony there second  as this plea be the defendant make himself his own judge to kill the cony as  often and when he please also it be against law for it be to the destruction  of the inheritance of another Bridgman I er p which no person can justify by  custom or prescription unless for the benefit of the commonweal h it be law to  pull down a house if the next house to it be on fire and so the suburb of a  town may be pull down in time of war and if enemy be on the coast it be good  law to come upon another man land and make bulwark there for the public good  be prefer before any man private benefit but when it be only for the private  benefit of a man it be otherwise Edward the abbot say that he be lord of the  town of a and do prescribe that when the tenant cease for two year that he may  enter until he be satisfy his arrear and it be hold by the court to be a in  custom to put a man out of his inheritance yet be that more reasonable then  this case for the time when the lord shall enter be certain and the tirne that  he shall hold the land be also certain and elizab dyer a custom that all  tytbes let or grant for more then six year of land in such a town be hold void  by the court because it be contrar to reason and to the liberty of the estate  of he that have a fee and h b custom in a leet that if the petit jury do make  a false presentment and this find by the grand inquest they shall be amend and  it be hold by the court to be no good customer and against common right but if  the custom be that if the petit jury conceal any thing they ought to present  they to be amerce this may be a customer and to prove that cony be part of the  inheritance see coke Rep in the case of swan but it may be object that this  usage may have a legal beginning videlicet that it be so agree at the time of  the grant or creation of the common I answer that then it ought to have be  special plead for else it shall not be so intend as it be prove in the h Simon  eyres case where a custom be plead in London that if the good of any man be  pawn to a citizen for a debt due to he that he may detain they until he be pay  his debt and it be urge because that it may be good to bind the debtor because  it may be intend it begin by his own grant but it be rule that it shall not be  so intend unless it be special allege and that a man shall not be judge in his  own case be prove by Edward b the defendant plead that at another time he  account to the plaintiff in the presence of a b be find in arrear wherefore he  be commit to prison there it be adjudge that the Bridgman I party himself can  not commit he to prison and that a action of false imprisonment do lie against  the plaintiff and cook r dr Bonhams case and in the h b if one prescribe that  if any cattle be take upon his land damage pheasant that he may distrain they  and put they into the pound until amends be make accord to his own will this  be hold not good because then he shall be his own judge which be against  reason and in the Edward guard a custom be allege in Ipswich that when ail  infant can count and measure that he shall be out of ware and hold to be void  Edward the where a custom be allege that when one can count d and measure a  yard of cloth he may alien his land and do aver that the demandant be of such  age but because he do not allege the age in certain it be adjudge against the  demandant and dyer one grant to another all his tree which may be reasonable  spare agree that this be a void grant for the inceitainty and in the h b if  beneficiary and use of a inannor do bargain and sell land parcel of the manor  no use be change for the incertainty