Whiteman against King
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1791 |
| Date | 23 November 1791 |
| Court | Court of Common Pleas |
English Reports Citation: 126 E.R. 397
IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER.
whiteman against king. Wednesday, Nov. 23d, 1791. A. being possessed of a quantity of land in a common field and having a right of common over the whole field, and B. having also a right of common over the whole field, they enter into an agreement, for their mutual advantage and convenience, not to exercise their respective rights for a certain term of years, and each party covenants to that effect. If during the term the cattle of B. come upon the land of A. he may distrain them damage feasant; And may in his replication (in answer to a plea pleaded by B. of his right of common, in bar of the cognizance of A.), set forth the special circumstances of the agreement and covenants [and leave the con strucfcion of them to the Court]. Replevin for taking, on the 20th of November 1790, at Holt, in the county of Norfolk, I in a certain place called Holt-Field, one gelding, and three mares of the Plaintiff,: &c. &c. Cognizance, that the locus in quo was an open and common field, that one Anne Peters waa seised in fee of 10 acres of laud, being in and parcel of the said field ; that on the 25th of March 1790, she demised the same to the Defendant King, for one year, and so from year to year, &e. &c., and acknowledged the taking the cattle, damage feasant, &c. Plea in bar, admitting that the said place called Holt-Field, in which, &c. was an open and common field, and that the cattle were taken in the said parcel of the said field demised to the Defendant; that the said parcel of the said field, iu which, &c. at the said time when, &e. lay, and from time whereof, &c. hath lain open to other parts of the said field, &c. and not inclosed or divided therefrom, by any hedge or fence whatsoever; [5] that one Robert Jeonis was seised in fee of a messuage and 60 acres of land in the parish of Holt, &c. that he and all those whose estate he hath (prescribing in a que estate) have had and used, &c. common of pasture for all his and their commonable mares and geldings, levant and couchant, &c. in and over the locus in quo (specifying the times of the year, and the mode of enjoying the common, with reference to the sowing the field with corn) as belonging and appertaining to the said messuage and land with the appurtenances : That the said Robert Jennis on the 15th of November 1782, demised the said messuage, &c. to the Plaintiff for 14 years; that the Plaintiff entered, &c. and (according to the specified terms of the prescription) put the cattle in the declaration mentioned, being his commonable gelding and mares levant and coucbant, &c. into and upon the locus in quo, &c. and that the said cattle were and continued, &c. until the Defendant of his own wrong, &c. The second and third pleas varied in a few circumstances of the prescription, and stated that Robert Jennis was seised of 50 acres of land, &e. 398 WHITBMAN t'. KING 2 H. BL 8. The fourth stated, "That in Holt-Field the lands of divers persons from time immemorial had lain, and still lay dispersed and intermixed in s niall parcels, and not inclosed or divided, the one from the other, by any fences or inclosures whatsoever; that Boberb Jennie was seised in fee of 50 other acres of land; that aa well as the last mentioned 50 acres of land, as also divers and many other parcels of land, of divers and many other persons, at the said time when, &c. did lie, and from time immemorial bad lain dispersed in the said field, and were not inclosed or divided, the one from the other, by any fences or inclosures whatsoever; and that from time immemorial the mares and geldings of the respective owners of the said last mentioned 50 acres of land with the appurtenances, parcel, &c. and of their farmers and tenants thereof for the time being, levant and couchant upon the said last mentioned 50 awes of land, and depasturing and feeding there yearly and every year, from Michaelmas day, according to the said old style, in case all the corn growing before corn-harvest in such year, in the aid field whereof, &c. hath been before that time cut down, taken and carried away from...
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