coke b robert maryss case Trin James a copyholder have a right of common may  have a action on the case against a stranger for put beast into the common by  which he can have his common of pasture in so beneficial a manner as before  but if the trespass be so small that the commoner sustain no loss the commoner  shall not take the beast damage pheasant nor have any action for the trespass  but the lord of the soil may have a action of trespass be it great or less if  the plaintiff declare that the defendant put in his cattle c and it be find  that he do not put they in but that they come in by escape the plaintiff shall  have judgement for the eat the grass be the substance S C Brownl Brownl qy SC  godb nom Morriss case Edward Crogate bring a action on the case against Robert  Marys and declare e Plowd b raym f side g   b calvin case a Brownl Swinb b  Brownl   light b Doct pl Cr car   b and note palm Cr James light Rep godb Doug  l raym strange show c   b coke report a er p that William winter gentleman be  seize in fee of the manor of TownBarningham whereof a house and two acre and  two rod of land in TownBarningham be c parcel and demise and demisable by copy  c in fee for life or year and whereas the say William and all those who estate  he have in the say manor with the appurtenance pro to hold custumarii nest prd  messuagii acret rod terr cum reach to have et a toto tempore pron  interrog   opposite direction memory man non step forth to have to become used fortify  strongly pasture in a certain pecia pasture content per stimationem seven  promontory peremptory or urgent call TowBarningham common jacen in  TownBarningham prd pro omnibus horse et cow nest levant et lying c  whithersoever you please year omni tempore striving tanquam ad prd messuag c  reach and convey a grant by copy of courtroll of the say manor of the say  house and land with the appurtenance to the plaintiff and his heir accord to  the custom of the manor by force of which he enter and be and yet be seize of  the say message and land with the appurtenance et prd robertus machinanse  tintendens Self Edwcird de communia pasture svan prd in prd pecia pasture  continent per stimationem sharp peremptory or urgent call TownBarningham  common habend minus just to entangle et de prficuo his ind altogether  deprivare primo die maii and regn dom Reg nunc England horse bobusetvaccas  urge in prd peciam pasturce content per stimat sharp voc TownBarningham common  to put down etherbam ibidem crescen cum horse an ox etvaccis nest to feed down  to be to tread upon etconsumpsit with continuance a prd prim die maii and coke  a seven suprad usque Fest S hich arch tunc neighbor sequen per quod idem  Edward to step out per tot idem time to hold customarius prd messuaget sharp  et rod terr cum reach fortify strongly pasture suum prd pro horse an ox et cow  nest in tam opportunity et beneficiali modus prout ipse prd before to have c  per time mock to have non to be able send prficuum suum ind per tot idem time  to send away ad damn c l the defendant plead non Culp and the jury find quod  quoad positionem a horse an ox etvaccarum Self Robert Marys in belowwritten  peciam pasture peremptory or urgent call TownBarningham common within per prd  bob become supposit to say super sancram suum quod prd rob Marys non be ind  reprehensible prout c et quoad depastur conculcation et consumption herb  belowwritten pecia pastor peremptory or urgent call TownBarningbam common  belowwritten horse an ox et cow per time belowwritten jurator pace to say  super sancram suum quod prd bob Marys be ind Culpetassid financial loss c a  and this plea begin hill James Reg rot and be oftentimes debate by the  sergeant at bar and by the justice at the bench and it be argue ex part def  that the wrong find by the jury be not the wrong whereof the plaintiff in his  action on the case have complain for he have complain of a misfeasance and  they have find a nonfeasance which be against the plaintiff for he have  declare that the defendant to put down averia svan c which be a wrong and a  misfeasance and the jury have find quod non to put down etcetera but that his  cattle have depastured c which ought to be by a escape which be a nonfeasance  and many case be put on this ground but as to that it be resolve that the  action notwithstanding that be well maintainable for the judge in find of  verdict rather respect the substance b than the circumstance and therefore in  the case which concern the life of a man a it be not necessary for the  plaintiff to set out in his declaration any title to the common either by  prescription or otherwise but only to allege that he be possess of certain  land as the case may be and by reason thereof have a right of common in such a  place for his commonable cattle levant and couchant upon his land c Alkinson v  Teasdale will bean v bloom ib and Vid ricketts v salwey barn and Ald if the  plaintiff shall unnecessary state his title in the declaration it seem that if  he prove a title to the particular right claim a variance will not be fatal  for the disturbance be the gist of the action and the title be mere inducement  and not traversable bull n p stride v byrt Mod but if the plaintiff undertake  to set out a title and set it out insufficient the declaration be bad Dorn v  Gashford salk sc  Com Carth crowther v Oldfield l raym and Vid sergeant  williams note Mellor v spateman sand a godb b roll Cr James hob Yelv Brownl    b Heydon Plowd b coke report b er p which be more favour than any thing in the  world judge regard the substance and not the circumstance as if a b and c be  indict for kill I S and that a strike he c and the other be present abet c and  the jury find that a do not strike he but that b strike he and that the other  two be present abet c this c be a good verdict for it be but circumstantial  who strike he for in law it be the stroke of they all it be well observe that  the declaration be that the defendant put in his cattle I maii c and that a  prd maii they continue there till the Feast of saint Michael now the jury have  find quoad positionem non culp prout c which be the first day of may but the  jury have find quoad cull tread upon c per time infra content know a primo die  maii usque fist S mich they find he guilty prout so that the jury have find  the continuance c in the same manner and for the same time as the plaintiff  have allege and the plaintiff be a stranger to it and therefore come the  defendant cattle by escape or otherwise the consumption of the grass and so  the destruction of his common that be the substance and cause of the action b  and so it be adjudge hill James in this court as it after appear it be object  coke b that one commoner shall not have a action for consumption of the grass  c for then every other commoner may have a action for the same cause and so  action for small cause will be d multiply which the law will not permit and  for that William case in the five of my report foe b of a common e chapel or  church a action on the case do not lie for nonfeasance of divine service nor  for a common nuisance do in the highway vide f h a a and g e c where the law  deny a action to any one in particular for avoid infinite action in small  cause to which it be answer and resolve that notwithstanding this objection  the h action lie for diverse reason it be evident that a commoner may take the  cattle of a stranger I damagefeasant as it be hold in e a e b h a b and b  which prove that it be a wrong and damage do to he and it will be a great  mischief if the commoner shall not have a action for then all the feed may be  take and eat by many sheep and other cattle and with strong hand there detain  till all the grass be consume and likewise with strong hand drive out so that  the commoner can not take they damagefeasant or the cattle after the grass  consume may escape out and then by the argument which have be make the  commoner shall have no remedy and then the a lord or other great man may at  their pleasure deprive those who have common in their waste of their common  there if the commoner have a freehold in his common and the lord or other will  feed or consume all the grass in the land where the common be to be take the  commoner shall have assize c and by b consequence the commoner in the case at  bar have common but at will by copy shall have a action on the case as if a  man have common of estovers in the wood of another in fee or for life and the  owner of the wood or any other fall all the c wood he who ought to have the  estovers c before b hale pi cor b Acc Atkinson v Teasdale will post I b I a d  Brownl Brownl side side Jones   light a light Rep Brownl Cr Elizabeth Br  nuisance Br chimin Br action sur Le case   light a e b h a   a Cr James Nov  roll Rep Jones Cr Elizabeth Brownl f h a g e b h Cr Elizabeth hob I Brownl  roll Yelv godb a Yelv c though the commoner have a freehold yet it be at his  election either to have a assize or a action on the case air v Pencomb style b  Brownl Cr Elizabeth c Brownl Brownl f n b d coke report a er p shall have  assize for it be a seize of his common f n b and if he have but a term in the  estovers he shall have a action on the case h James in Com Ban Edward Buttolph  bring a action on the case against r kipping and other and declare that h  gawdy knight be seize of a house and acre of land in Sowood in Norfolk and  that the say sir Henry from time whereof c have use for he and his tenant of  the say house and land to cut and take break in a piece of heath call  Caronhill in Sowood aforesaid for their fuel to be spend in the say house as  to the say house appertain and so be thereof seize dernize the say house and  land with the appurtenance for term of year c by force of which he enter and  be thereof possess the defendant prmissorum non igmari cut down and carry away  three load of break in the say place per quod the plaintiff can not have break  for his fuel in so ample and beneficial manner as before and as of right he  ought c the defendant plead not guilty and it be find by verdict for the  defendant and he have judgement accord coke a for d every feed by the cattle  of a stranger the commoner shall not have a assize nor a action on the case as  his case be but the feed ought to be such per quod the commoner c common of  pasture c for his cattle c to have non to be able send prficuum suum ind per  totum id time to send away c so that if the trespass be so small that he have  not any loss but sufficient in ample manner remain for he the commoner shall  not take they damagefeasant nor have any action for it d but the tenant of the  land may in such case have a action and therefore if my servant be beat the a  master shall not have d Brownl d in a action on the case damnum et in an  unjust manner must both be prove per car in peel v Lewis KB cite in sergeant  hill copy of the report where however cattle be permit to depasture the common  whether they belong to a stranger or be the supernumerary cattle of a commoner  and whether they be drive or escape there a commoner may have a action on the  case and such a injury will satisfy the averment in the declaration that the  plaintiff can not by reason of the defendant act enjoy his common in so ample  and beneficial a manner as he may do and the plaintiff need not prove any  specific damage for if the cattle have not be on the common the plaintiff  cattle may have eat every blade of grass which be consume by the defendant  there be also another ground on which the action may be support which be that  the right have be injure and if a commoner can not bring such a action as this  because his cattle have grass enough to prevent they from starve he must  permit a wrong doer to gain a right by length of possession well v Watling  black Rep Hobson v Todd TR so where a stranger have take from the common the  manure of the cattle feed there and the jury find that the damage sustain by  the plaintiff a commoner amount only to a farthing the court refuse to enter a  nonsuit pindar v Wadsworth east and general any obstruction of a right of  common or of a right of way be a sufficient cause of action per Littledale I  William v Morland barn and Cress so where a commoner distrain the beast of a  stranger he need not show that he have sustain any specific injury Bronge more  style contra Woolton v salt lev but if the cattle belong to the lord of the  manor or be put on the common by his licence the commoner can maintain a  action unless he have sustain a specific injury for the lord be entitle to  what remain of the grass and may consume it himself or permit another to do so  provide a sufficiency of common be leave for the commoner per buller I Hobson  v Todd TR in a action against the lord of the manor the plaintiff must  particular show the surcharge in his declaration but in a action against a  stranger the averment that he can not enjoy his common in so ample and  beneficial a manner be sufficient and the defendant if he justify under a  licence from the lord must show that sufficient be leave for the commoner  smith v Feverell Mod Greenhow v Ilsley other will Vid vin ab common h a pl  Atkinson v Teasdale will hazard v Cantrell I Lutw sergeant williams note  Mellor v Svateman sand Vid n b williams case   a Brownl Brownl coke report b  er p a action for this battery unless the battery be so great that by reason  thereof he lose the service of his servant but the b servant himself for every  small battery shall have a action and the reason of the difference be that the  master have not any damage by the personal beat of his servant but by reason  of a per quod videlicet per quod slavery c to send away so that the original  act be not the cause of his action but the consequent upon it videlicet the  loss of his service be the cause of his action e for be the battery great or  less if the master do not lose the service of his servant he shall not have a  action so in the case at bar the lord of the soil shall have a action for  trespass do in the waste or common as a immediate trespass to he be it great  or less c but the commoner shall not have a action but by d consequence  videlicet if the trespass be such per quod prficuum common sum c to send away  or that he can not have his common in so beneficial manner as he have before  in this case it do not judicial appear to the court that any other have common  there but the plaintiff himself and therefore the colour of multiplication of  suit be not to be resemble to this case and it be true for a nuisance in the  highway e without special damage none shall have a private action for it be  not damnum private citizen but damnum common and therefore it ought to be only  punish and reform at the king suit for a public nuisance shall not be reform  at the suit of a private party for the damage be not private but public but  private citizen damnum sive nocumentum shall be reform by the action of the  private party grieve and common nocumentum at the suit of the king who be the  bead of the whole commonwealth but a trespass do to many commoner be private  citizen and not common nocumentum and so it be adjudge in ass p a presentment  be in a leet that I n have enclose such land which ought to lie in common for  all the inhabitant of the town c ad common nocumentum to dwell in will prd and  this presentment be adjudge void for it be a private wrong to the particular  inhabitant of this particular town and no public common nuisance and the chief  justice in his argument in this case cite two judgement in the poitit in this  court Trin EIiz rot John a holland Esq bring a action on the case against  Thomas Lovel Esq and other defendant and declare that the plaintiff be seize  of the manor of chalkhill coke b in Larlingford in Norfolk and prescribe to  have common for sheep in a place call the plain in Larlingford as belong to  the say manor the defendant prmissorum non igmari with their sheep do eat the  grass grow in the say place call the plain per quod the plaintiff can not  enjoy his common there in so ample and beneficial manner as he have before and  as of right he ought to have to his damage of the defendant plead not guilty  and it be try by nisi prius before sir John Popham chief justice of England  and find for the plaintiff and he have judgement and execution hill James rot  in common banc norf George b England bring a action on the case against this  Edward Crogate and declare that the bishop of Norwich be seize in the right of  his bishopric of the manor of Thurgarton in Norfolk and that the plaintiff be  a copyholder of a tenement parcel of the manor and prescribe in the bishop c  to have common for the copyholder of the say tenement t for all horse cow and  hog in a piece of pasture in Basingham call Basingham common c at all time of  the year as to the say tenement belong the defendant prmissorum non ignarius  put his horse and cow into the b Brownl h pl f that this action be a action of  trespass way et arms Vid uvoodward v Walton n r c b c d Brownl e   light a   a  more Cr James Nov roll Rep Jones Cr Elizabeth brown h a Br action sur Le case  Br chimin Br nuisance e b Br action sur Le case Br nuisance f n b g   keb t  raym cro Elizabeth a Brownl c Ent pl b Brownl   Ent pl Ant a salk coke report  a er p say piece of pasture call b per quod the plaintiff can not have common  there in as ample and beneficial manner as he have use before c the defendant  as to the put in of his cattle plead not guilty which issue be find for the  defendant and as to the eat of the grass he plead that the say piece of  pasture call Basingham common adjoin to another pasture call Barningham common  in which the defendant have right of common and that these two commons lie  open the one to the other and claim to have common in Basingham common for  cause of vicinage upon which common for cause of vicinage issue be join and  find for the plaintiff whereupon judgement be give and execution award in  which case both the point which now in the case at bar be in question be  adjudge although the plaintiff declare that the defendant put in his cattle c  and it be find that he do not put they in but that they come in by c escape  yet the plaintiff shall have judgement for the eat of the grass be the  substance d it be adjudge that the commoner in this case shall have a action  on his case