case birch against wilson in a action on the case for disturbance of common a  special plea that a be seize of such land with all commons and emolument to  the premise belong or therewith use convey they to the defendant and that the  tenant and occupier of the say land c have use to have common therein v irtute  pron  interrog  he have right do put his cattle in to take common there and  that there be sufficient common both for the plaintiff and himself be a  sufficient statement of a right of common and although it amount to the  general issue yet as it also disclose matter of law it be good action on the  case the plaintiff declare that he be seize of a message and several land in  the parish of dale and that he and all those who estate he have modern er p  have use to have right of common for all commonable cattle levant et couchant  upon the premise in a certain meadow there call Darpmore meadow and in a  certain place call Cannock wood that the defendant praemissor non ignorant  have enclose the say place in which the plaintiff have right of common and  likewise put in his cattle as horse cow hog goose c so that he can not in tam  opportunity el beneficiali modus enjoy the same the defendant as to the  enclosure and put in of his hog and goose plead not guilty and as to the  residue that Lord paget be seize of a message three hundred acre of land forty  acre of meadow and a hundred acre of pasture and likewise of Darpmore meadow  and Cannock wood and be so seize do by deed of bargain and sale enrol in  consideration of two thousand pound convey the say message three hundred acre  of land forty acre of meadow and a hundred acre of pasture to the defendant  and his heir and by the same deed do grant to he all way commons and emolument  whatsoever to the say message and premise belong or therewithal use occupy or  enjoy or take as part parcel or member thereof virtue pron  interrog  the  defendant become seize of the premise and that the same be lease and demise  for year by the say Lord paget and all those who estate he have a tempore  pron  interrog  opposite direction memory man non step forth and that the  tenant or occupier thereof tempore pron  interrog  c use to have common in  Darpmore meadow and Cannock wood for all commonable cattle levant et couchant  upon the premise and use to put in their cattle into the say place in which c  army pron  interrog  the defendant have right do put in his say cattle into  the say place to take common there and aver that there be common sufficient  both for the plaintiff and himself to this plea the plaintiff demurrer modern  Pemberton sergeant for the plaintiff say that it be no good plea but rather a  design to introduce a new way of common the reason offer why the plea be not  good be first that the defendant can not prescribe because of the unity of  possession for the Lord paget have the premise in and to which c and therefore  he have prescribe by a collateral matter videlicet by allege that the land be  usual let to tenant for year but do not say whether they be tenant by copy of  court roll or not neither do he make out any title in they in some case where  a man be not privy to the title he may say general that the owner and occupier  use to do such a thing c and this way of plead may be good but here the  defendant claim under they ought to set forth their title or else he can have  no right to the common second by this plea be intend that the Lord paget have  make a new grant of this common for be set forth that he grant the premise and  all commons use with the same and so will entitle himself to a right of common  in those two place as if common have be express grant to he there which if it  shall it be but argumentative and no direct affirmance of a grant upon which  the plaintiff may have reply non to go away for no issue can be join upon it  three he ought to have set forth that the tenant lawful enjoy the common there  but he lie only a usage to have common which may be tortuous fourthly he do  not say that there be sufficient come for all the commoner but only for the  plaintiff and himself it be true the owner of the soil may feed with his  tenant who have a right of common but he can derogate from the first by  straighten the common by a second grant and so leave not sufficient for the  tenant five this plea amount to the general issue and the plaintiff have  special assign that for a cause of demurrer for he say that the defendant  without any title put in his cattle by which the plaintiff have not sufficient  common and the defendant plead he put in his cattle rightful and the plaintiff  have common enough which if it signify any thing must amount to not guilty  modern but by Weston sergeant on the other side the last objection be  endeavour to be answer first because if that hold yet if the plea be never so  good in substance the plaintiff will have judgement it be agree that this plea  do amount to a general issue and no more but that every plea that do so be not  therefore have for if it otherwise contain reasonable matter of law which be  put upon the court for their modern er p judgement rather than refer to the  jury there be no cause of demurrer for it be the same thing to have the doubt  or question in law before the judge in plead as to have it before they upon a  special verdict in the yearbook Richard pl a retainer be plead special by a  administrator which be no more than Plen to manage yet no demurrer but the  book say that the court ought to be move second the plea be good as to the  matter of it for the defendant claim the same common by his grant which have  be use time immemorial and allege it to be of all common use with the premise  and this be a common so use in trespass a Godfrey veyre cro Elizabeth a the  defendant justify that Godfrey be seize in fee of a house and of twenty acre  of land and that he and all those c have common in the place where c to the  say message belong and that he make a feoff to Bradshaw of the same who make a  lease thereof to the defendant with all profit and commodity thereunto belong  well occupate well usilat cum prmdicto messuagio it be adjudge that though the  common be go and extinct in the hand of the feoff by the unity of the  possession yet those word be a good grant of a new common for the to grant in  the lease and that it be quasi a common in the hand of Godfrey the feoff and  three though it have be object that this plea be not formal plead because it  ought to have be direct in allege a grant whereas it be only argumentative and  bring in by a side wind he say that as have as it be it be own by that  sergeant who argue against he and who do very well know that the averment of  sufficiency of common be needless the court be all of opinion that though the  plea do amount to the general issue yet for that reason alone the plaintiff  have no cause of demurrer for the defendant may modern well disclose the  matter of law in plead which be a much cheap way than to have a special  verdict and that this be on the same reason of give of colour but if the  matter by which the defendant justify be all matter of fact and proper for the  trial of a jury then the defendant ought to plead the general issue and as to  the matter of the plea the chief justice and Wyndham justice hold it to be  good for the common which be plead be a common by grant and not  argamentatively plead for if the defendant have plead a express grant of  common iris i those two place and the plaintiff have demand oyer of the deed  it will have appear that there be no such deed and this have be a good cause  of demurrer if this plea shall not be good it will be very mischievous to the  defendant for there be a perpetual unity as to the freehold there can be no  prescription to the common but there beirig a constant enjoyment thereof by  the tenant and so a perpetual usage and a grant make refer to that usage it be  well enough and since while the land be in possession of the lord the commoner  can not complain of a surcharge why shall they if he grant the premise the  grantee be in loco c in the case of the king a grant of tot el ankle freedom  el privilegi quot et qualia the abbot late have be hold good by such general  word a   abbot de strada marcellam case a here Lord paget grant to the  defendant that which the lessee have before videlicet that common which the  tenant have time out of mind and it can be conceive but that the tenant have a  right for as a tort can be presume to be from time immemorial so neither shall  it be intend that the lord give only a licence and permit his tenant to enjoy  this common but Atkins justice be of opinion that the plea be not good he say  be know not by what name to call this Com mon for it be no more than a  permission from the lord that the tenant may put their cattle into his  freehold or a connivance at they for so do and if it be take as a new grant  then nothing can pass but the surplus for the lord can derogate from his  former grant and the new grantee shall not put in a equal proportion with he  who have the prescription for if he may then such prescription will be quite  destroy by such puisne grant for as the lord may grant to modern one so he may  to twenty and then there will not be sufficient common leave for he who  prescribe to the right so he conceive that the defendant have no right of  common or if he have any it will not be modern er p till after the right of  the plaintiff be serve and he say that usage shall not intend a right but it  may be a evidence of it upon a trial but if there have be a usage it be now  lose by the unity of the possession and shall not be revive by the new grant  like the case of Hassan v hunter there be a copyholder of a message and two  acre in fee which the lord afterward grant and confirm to he in fee  cumpertinentiis it be adjudge that though the tenant by usage have a right to  have common in the lord waste yet by this new grant and confirmation that ring  he be go the copyhold be thereby extinguish for the common be by usage and now  lose these word cum appurtenance in the new grant will not revive it but  notwithstanding judgement by the opinion of the other three justice be give  for the defendant