case hinks against clarke see goodman v mayor of Saltash App Cas on a issue  that the freeman and inhabitant of ancient message have by custom a right of  common for so many beast a verdict find a right of common modus et form c and  also that the freeman have right of common for twenty more be good for the  latter find shall be reject as surplusage SC lev Writ of error on a judgement  in replevin in a inferior court the plaintiff there in his declaration allege  a common by way of custom in the freeman and inhabitant of several ancient  message c the jury find that the freeman and inhabitant of the ancient message  c have common for so many beast modus et form as in the issue et beyond to say  that the freeman have common for twenty more c Mr holt for the plaintiff in  the writ of error insist that the custom be not find as in the issue but quite  another custom and that the court must judge upon the whole and he cite the  case of foster v Jackson hob and that the last matter find be part of the  custom Jones justice it be another custom and therefore surplusage for the  other custom they have find be that the freeman and do not say inhabitant of  the ancient message a roll Abr pl b see the case of peach v Oldham where the  word I be through convince that you be guilty and rather than you shall go  without a hangman I will hang you be after verdict hold actionable Cowp shower  KB er p Pemberton justice they have find the issue modus et form and several  other thing which be idle then another thing which they insist upon be that it  ought to have be a prescription and not by custom Scroggs chief justice in the  case of staple v mellar a they insist it may be good by way of custom but not  by prescription b it be the same case we be for maintain of right and if you  ask what common it be I say it be a ancient common and for that you allege the  inheritance of common must be in some body and therefore can be in freeman  inhabitant I will fain know where be the inheritance of a copyhold common you  say that that be customary so be this there be many commons shower KB by  custom that the inheritance of they be in nobody and yet the land be charge  with they in the north country be many such and poor man will lose their right  of common if such pretence shall be material objection what we resolve in the  case of staple v mellar will settle this the custom be good and the verdict  have find it well enough judgement affirm