brown case Sackville Tufton appellant John Wentworth and other respondent that  march Mews dig three xiv the several owner of land in the parish of c enter  into a agreement that a particular common shall be enjoy as a cow pasture for  ninetynine year and this agreement be sign by the bailiff of one of the owner  so far as he have power though no particular authority can be show yet after a  acquiescence of above thirty year on the part of this owner a authority shall  be presume and he shall be bind by the act of his servant viner vol p can vol  p can Eq can ab can there be ancient three open common field belong to the  town of Charlton in the county of Northampton which be use in tillage and at  certain season of the year all the owner of land in any of the say three field  or their tenant have a right to keep a certain stint number of beast sheep and  other cattle thereon in proportion to the several quantity of land which they  hold therein and not otherwise videlicet after the rate of common for two cow  and fourteen sheep for every yard land in the say field the least of these  three field call Westfield contain about acre and about fifty three year ago  by common consent between all the then owner of land who have any right of  common therein this field be agree to be lie down and convert from tillage  into pasture to be afterward enjoy as a cow pasture for year and it be at the  same time agree what number of cattle shall be thereafter keep in the say  field after the say Westfield have be so convert it be by experience find to  be much for the advantage of all party that the say usage shall be continue  and as there be several close adjoin to the say Westfield call Lammas close  which separate belong to different person but be commonable for part of the  year the owner of these Lammas close be desirous that they and their tenant  may enjoy the same free from all right of inter commoning thereon and in lieu  and consideration thereof propose to allow the owner of other land in the say  field who have no Lammas close certain privilege by enlarge their commons on  other part of the say field beyond what they be otherwise entitle to for this  purpose certain article of agreement be on the that of April sign by the  several person who then have any interest in the say Lammas close or land in  the Westfield or other field in Charlton or right of common there or by some  other person or person by they authorize so to do and particular by one John  Turland for and on behalf of the lady Wilbraham or Ralph Wilbraham esquire  under who the now appellant claim to who the say Turland be then not only  tenant but steward or bailiff and by these article it be agree that Westfield  shall continue a cow pasture for year and that every owner of land shall lie  down and continue two acre for one cow and cut his thorn once in ten year that  such person brown who have no land in the say Westfield but have land in the  other two field shall for every yard land and a half which they several have  in the say other field from thenceforth during the year be allow by the owner  of the say Lammas close one cow common yearly in Westfield and in lieu thereof  the say Lammas close shall be enjoy by the owner and their tenant enclose and  several at all time during the time aforesaid free from any right of commoning  thereon that Mr John Willoughby who be owner of two of the Lammas close and  the owner of the other Lammas close shall enjoy the same enclose and in  severalty he and they in respect thereof abate common for half a yard land  every other year and Mr Willoughby to provide a bull for the use of the herd  and in lieu thereof to be allow one cow common throughout the say Westfield  that William Haddon for the liberty of keep his close several shall abate of  his common in proportion to half a yard land that no one shall in any year  keep above six ewe and lamb in Westfield for one yard land and the rest of  their stint of sheep to be make up brown er p of dry sheep so as they do not  exceed fourteen sheep in the whole for a yard land and in proportion for a  great or lesser quantity and that the sheep shall be put into Westfield at  saint Martin and the beast on the that of may yearly by virtue of this  agreement Westfield be continue a cow pasture and the Lammas close be quiet  enjoy for thirty year afterward and particular during all the lifetime of lady  Wilbraham and afterward of Ralph Wilbraham her son who be the impropriators of  the tithe within the say three field be so well satisfy with the advantage  they derive under the agreement that they abate the tenant who rend their  tithe pound per and in lieu of such loss as he may thereby have rather than  not submit to the agreement but the appellant have marry the daughter and heir  of the say Ralph Wilbraham and by that mean become entitle to all the estate  in Charlton he about twenty year ago with two other owner of land in Westfield  in violation of the say agreement blow up some part of his and their land  there and continue so to do for several year afterward and in August the  appellant put in above sheep into Westfield contrary to the agreement which  shall not have be put in till the that of November follow and he likewise put  in several horse and ox and more cattle than what he have a right of common  for and although the appellant oblige the respondent to flit and tether their  cattle in Westfield yet he at the same time put in his own cattle lose among  they and threaten to impound the respondent cattle if they do not confine they  and actual do impound some of they for be lose in the field at the same time  that his own go lose there though the appellant have for near twenty year  together as owner of the say close and land enjoy the benefit of the agreement  without any interruption whatsoever by hold his Lammas close in severalty and  his part of Westfield enclose the appellant also for two year brown together  since the blow up two acre in one of the say three field which have be ancient  greensword ground and be not of his own separate land but allot for common and  he likewise blow up several hades of land of his own in two of the say three  field which be ancient greenswordground no part of which have ever be know to  be blow before the respondent therefore in Hilary term exhibit their bill in  the high court of chancery against the appellant for a specific performance of  the say article and particular as to the enjoyment of the Lammas close and  continue the Westfield a cow pasture and to restrain the appellant from put in  any great number of cattle in the say field than by the article be allot and  appoint the appellant by his answer to this bill say that he never hear any  thing of the article till several year after his intermarriage with the  heiress of Ralph Wilbraham and insist that the same ought not to be bind on he  because they be not consent to or sign by all the owner of land in the say  common field and particular that John Lucas the owner of a yard land and John  Jarvis the owner of a half yard land there do not consent to the agreement or  sign the article nor do the owner of the appellant estate ever consent to or  sign these article or give authority to any person to sign they on their  behalf That John Turland who as it be pretend sign the say article for the say  Ralph Wilbraham be a tenant only of the farm but not of the tithe at Charlton  and sign the same in a special manner videlicet I consent so far as I have  power as do likewise Richard matthews another tenant of land in the say  fields That about twenty year ago the respondent Richard matthews and one John  Phipps since decease another owner of land in the Westfield begin to blow  there and the appellant also blow and since that time all the respondent  except two have blow their land and the say field have be common use in  tillage That when the appellant first become owner of the farm at Charlton he  enjoy the Lammas close belong to he in severalty free from any claim of common  there and know not that these close be ancient commonable but if it shall so  appear he be Willing to lie they open And as these article tend to alter the  nature of the appellant land and to change the ancient custom and usage of  blow sow and commoning in the say field he insist that the same be not  Obligatory upon he or ought to bind his inheritance and much less to be carry  into execution by a decree of the court of chancery brown er p on the first of  July the cause be hear before the Lord chancellor Parker when upon read the  agreement of the that of April and the proof in the cause his lordship declare  that it appear that the appellant and those under who he claim have enjoy the  benefit of the agreement for fifty year and have abate in their rend for the  tithe pound per and to support the same and that the appellant blow up his  land brown contrary to the agreement be not a wave the agreement though it be  a prejudice to the other party who do not blow up their land and therefore it  be order and decree that the say agreement shall be perform for the remainder  of the year and that the appellant shall pay the respondent their cost of suit  to be tax by a master the appellant be dissatisfy with this decree appeal t  Lutwyche S mead and in support of the appeal it be insist that the respondent  in their suit below do not make party to the bill all person who be concern in  interest in the say Westfield as they ought to have do for unless all party  interest be bind no enclosure or alteration of a common field from arable to  pasture or of the common thereunto belong can be effectual or of any use nor  can such agreement be execute that the lady Wilbraham be no party to this  agreement nor do it seem intend that she shall have be a party the article  purport to be make between the inhabitant of Charlton only whereas both lady  Wilbraham and Ralph her son under who the appellant claim live far remote from  thence in the county of Chester at the time of make these article and John  Jarvis John Lucas and one Peckover who then have land and commons in the say  Westfield never sign the article and as for that reason these person be not  bind by the article they ought not to be carry into execution that the say  John Turland can not be understand to sign these article by any authority from  the wilbraham since no such authority be prove to have be give nor appear by  the article and the especial manner of his sign the same so far as he have  power be most proper to be understand with respect only to his own interest as  a inhabitant of the say town of Charlton and tenant of lady wilbraham farm  there but though this Turland may sign the article as a underbailiff for the  Wilbraham family who live too remote from the place in question yet from  thence to infer or allow he a power to bind the inheritance of his landlord  for year be a power very dangerous to be allow to a tenant upon pretence of  his be a steward or bailiff that these article be not hold to be bind even by  the party themselves as appear by all of they except two have within thirty  year pass blow up again all their respective arable land so lie down for a cow  pasture and as some of the respondent have first break this agreement by blow  and continue to blow in Westfield for about twenty year they ought not now to  have a specific performance thereof that the establish the say alteration from  arable to pasture and the usage of the common for so many year yet to come  tend inevitable to destroy the proof and evidence of the respective proprietor  of land in Westfield and of their ancient prescriptive right of common there  which can only be preserve by continual usage and the ancient boundary of  these proprietor which lie intermix in the field will short be in manifest  danger of be stand confound for want of ascertain the same by constant tillage  as before be use that the appellant brown be decree to pay the respondent  their cost although some of they be the first who break the agreement and  although the article have be waive or at least not comply with for about  twenty year before fill the bill that two objection have be chief rely upon  against the appellant videlicet that he have enjoy his Lammas close free from  inter common and that those under who he claim have abate pound per and in the  rend of their tithe to support the agreement to the first of these objection  it be answer that it no where appear by the proof in the cause that the  respondent claim or be interrupt or disturb in their enjoyment of common in  the appellant close at commonable time or that he know those close ought to be  commonable at Lammas but on the contrary the appellant have by his answer deny  any knowledge of this matter and have offer to lie the say close open at  Lammas if it shall appear by any proof that they use and ought so to be And as  to the other objection it can not reasonable be intend that this abatement be  make to support the article for at the time brown er p of make it the lady  Wilbraham and her son live remote nor do it appear that the rend of the farm  be raise on account of the enclosure so as to induce they to make a abatement  of the rend of the tithe on that account and the tenant Turland who sign the  article have a interest in the farm so as to bind himself during his term  there but not to bind his landlord and therefore upon these ground it be hope  that the decree will be reverse and the bill dismiss with cost on the other  side it be argue r Raymond S Cowper that the appellant and the respondent be  all the party who now have any land or right of common in Westfield and  therefore all party interest may be bind by the decree and the enclosure  thereby make effectual for as to the land and estate which John Lucas have he  sell they soon after the article to one Thomas Haynes under who the respondent  Edward Gibbert now claim the same and as to John Jarvis he be under some  agreement at the time of the article to sell his estate and interest to Mr  Ralph Wilbraham under who the appellant claim and he soon afterward convey the  same to he accord that the landholder in Charlton be in some respect  inhabitant but if any other person not actual inhabitant have sign the article  it be apprehend they will be bind and conclusive to such person that all the  person under who the respondent claim be at the time of make the agreement  inhabitant of Charlton which be in the same parish where Mr Ralph Wilbraham  live for several year after the agreement and enclosure that John Turland at  the time of the agreement be not only tenant but also steward or bailiff to Mr  Wilbraham receive his rend and manage his estate and though Turland sign the  agreement in a special manner so far as he have power yet from what be do by  Mr Wilbraham afterward it must be presume that he have give a authority to  Turland for so do and that he consent to and confirm the same for it be prove  in the cause that Westfield brown and the Lammas close have be hold and enjoy  accord to the agreement for thirty year together after the make thereof and  that after Mr Wilbraham come to reside upon his estate at Charlton he be very  well satisfy with the agreement during all the time he live there and as a  evidence of this agreement and consent it be prove by two of the appellant own  witness that the tenant who rend the impropriate tithe of Charlton have pound  per and abate out of the rend of those tithe soon after the lie down Westfield  for a cow pasture by reason of the same be convert from tillage into pasture  and therefore it must and ought to be presume that Mr Wilbraham not only give  Turland authority to sign the agreement but that he himself consent to and  approve of it that though some of the respondent may have blow up some part of  their land after thirty year acquiescence yet it be contend that the article  be still Obligatory it be admit even by the appellant that two of they never  infringe the agreement or blow up any of their land again and whatever may be  do by other can not nor ought in the least to prejudice the right of these  beside such of they as have so blow do it after thirty year acquiescence but  be sensible of their error soon lie down their land for pasture again which  ought not to be adjudge any waiver of the say agreement that the establish of  the enclosure for the remainder of the ninetynine year be prove to be of  advantage to all party concern and particular to the appellant for by virtue  thereof he enjoy five close contain twelve acre in severalty all the year  which before the agreement and enclosure be commonable for all the landowner  from Lammas day to Candlemas be six month it be also prove that the value of  the tithe be better by reason of the enclosure nor can it be reasonable  apprehend that this enclosure will destroy the proof or evidence of the  proprietor in their land or common after the ninetynine year be expire the  same be now well know and the testimony thereof will be preserve even by the  present proceed though it be most probable that at the end of the term the  great advantage of the enclosure will induce the landowner to come to a new  agreement for continue it and therefore it be hope that the decree will be  affirm and the appeal dismiss with cost accord after hear counsel on this  appeal it be order and adjudge that the same shall be dismiss and the decree  therein complain of affirm jour vol p brown er p