the residue of the tenures of all the different races which have possessed the island. Some may even be derived from the Gauls, who first colonised the country, and may be an attenuated descendant of the custom preserved by Cæsar. The lot meadow, possibly derived from the Saxons, may be the modern version of the custom described by Tacitus ; while in the rule, still extant in some places", of awarding a choice of lots to the best runner or the best wrestler, we may possibly recognise a Norman origin. A second portion of commonable lands is Shack land; land over which a custom to go at shack, which signifies to go at large, prevails. This shack land is open arable land, held in severalty during a portion of the year, namely, until the crop has accrued. After the crop has been removed, these lands become commonable to all the parties having a severalty right, but to no others. The practice often is, that this intercommoning shall be without stint. Such practice, however, is certainly illegal. Much of the law upon this subject will be found collected in Serjeant Wilson's note to Sir Miles Corbet's caset, whence it * These remarks, suggested by a conversation in the Commons' Enclosure Committee, have little relation to the practical objects of this little treatise; but it may perhaps be pardoned, even to a law writer, that he glance for a moment at these interesting memorials of early ages, now when they are about to be destroyed for ever. † 7 Rep. 5. appears that the courts have likened this custom to a common of vicinage, and have intimated that it is subject to the same limitation, and even, if usage should authorise it, to the same power of enclosure. The severalty holders upon shack lands are usually the holders of the fee of their several portions.* The prescriptive rights of flockmasters have usually been referred to this division. The case of Jones v. Richards is a leading case upon this subject. There the owner of the farm of B. prescribed for the sole and exclusive right of pasture and feeding of sheep and lambs on L. The Court held that this did not give him a right to take in the sheep and lambs of other persons to pasture on L., inasmuch as by the terms of the prescription some interest remained to the lord. Lord Denman C. J., in delivering judgment, said, "By the terms of this prescription the grantee's right is limited to the feeding of sheep and lambs. * These commonable lands have hitherto been unnoticed by law writers. I am indebted for the foregoing account to the evidence, before the Commons Enclosure Committee, of Mr. Blamire, a gentleman who may well be considered as the author of the three great rural reforms of the agecommutation of tithes, enfranchisement of copyholds, and enclosure of commons; and upon whose judgment we may rely with a comfortable assurance, in all things wherein profound sagacity and unwearying assiduity can secure correctness. † 6 A. & E. 530. This would be wholly insensible if the entire pasture were granted to him in exclusion of the lord. Further, the right to feed by sheep is not limited by number, so as to make it indifferent to the lord by whose sheep the pasturage is enjoyed, but is a grant to the occupier of Blaenmerin, and is appurtenant to that farm. The principle seems to be, to ascertain the extent of the rights conferred and the rights reserved by the grant, and to see whether the act be in derogation of the latter." 46 CHAPTER V. ON THE CREATION, ALIENATION, AND EXTINGUISHMENT OF RIGHTS OF COMMON. EVERY right of common is created either by an act of parliament, evidenced in modern times by a custom, or by a grant, which may be evidenced either by a prescription or by the deed itself.* A common cannot be created by means of a bargain and sale, for the object of sale is not in esse.† The grant must be by deed.‡ With respect to the alienation of rights of common, common appendant will pass under a conveyance of the land to which it is appendant; for it is a rule that whatever is incident to land will pass by the description of land.§ Nor can * Every custom supposes an Act of parliament, or a law made in former times by an equivalent power; but a prescription supposes only a grant. Harland v. Cooke, Free. 320. An Act, however, will not be presumed in favour of an unreasonable custom, and a prescription cannot exist in that which cannot be granted. Weekly v. Wildman, 1 Ld. Raym. 407. † Speaker v. Styant, Cro. Jac. 189., Comb. 127. Sup., and 2 Ro. Ab. 63., 1 Ro. Ab. 102. Solme v. Bullock, 3 Lev. 165.; Sacheverill v. Porter, Cro. Car. 482., 2 Ro. Ab. 60. As to whether a custom to common appendant be otherwise conveyed than with the land to which it is appendant. Common appurtenant, so long as it continues appurtenant, will also pass by any deed which grants, bargains, and sells, leases and releases, licenses or devises the land to which it is appurtenant. It is only when the right is for a fixed number of cattle that it can be granted away as a substantive property, severed from its dependence upon land. Common in gross for a certain number of cattle differs in no respect from that just mentioned, and may be passed in the same manner by deed. But it is said that common in gross, sans nombre, can only be granted over when enjoyed in fee, and cannot be aliened by grantees in tail for life or for years; and the reason assigned is, that it would be to the prejudice of other commoners, that an unlimited licence to depasture should be passed to one who has a thousand sheep, while the original grantor might have had but a hundred.* The reason is not very conclusive; nor would this doctrine, probably, be sustained in the present day.t By a grant of all demesnes, the waste itself will demise rights of common by parol can be supported, see Lothbury v. Arnold, 1 Bing. 219., 8 Moore, 72.; Rex v. Lane, 1 D. & R. 76., 5 B. & A. 488. * 2 Rep. 73.; Stampe v. Burgesse, 1 Ld. Raym. 407. |