A custom that every inhabitant within any ancient méssuage in an ancient vill, by reason of his commorancy therein, has had common in the place in question, is bad; for inhabitants, unless they are incorporated, cannot prescribe to have profit in another's soil, but only in matters of easement, as in a way to a church, or in matters of discharge, as to be discharged of toll or of tithes. But although inhabitants, on account of the vagueness of the description, cannot claim a right in alieno solo, yet the occupiers of houses or land may, by custom, claim such right. Adm. per cur. in Bean v. Bloom, 2 Bl. R. 928. If issue be joined on a plea prescribing for a right of common generally, and the jury find that the party prescribing d Smith v. Gatewood, Cro. Jac. 152. e Lovelace v. Reignolds, Cro. Eliz. 6 Rep. 59. b. 503. if A. has a prescriptive right of common belonging to his estate, that B., who has another estate in the same manor, must have the same right; neither would the judgment for A. be evidence for B.; and yet there are cases, which lay it down as a general rule, that one commoner is in no case a witness for another." Per Buller, J. in Walton v. Shelley, 1 T. R. 302. Harvey v. Collison, ante p. 412., S. P. The plaintiff prescribed for common of pasture, upon Hampton Common, for all cattle, levant and couchant upon his ancient messuage, &c. as appurtenant thereto, and declared that the defendant was bound, by reason of his occupation, to repair the fence of his close contiguous to the common, and permitted it to be ruinous, whereby the plaintiff's cattle escaped, and plaintiff lost the use of them. At the trial, the plaintiff called several witnesses, inhabitants of Hampton, who deposed, that all inhabitants in Hampton, paying church and poor, had a right to turn their cattle upon the common. The court held, that the question to be considered was, whether commoners, having a common interest in the preservation of this hedge, could be competent witnesses for each other? It might be, that no one was bound to repair it. It might be, that a hayward was usually paid by the commoners to keep their cattle on the common. But the production of this record would be evidence for another commoner, that the occupier of the adjacent land was bound to repair this fence. The commoner, therefore, would derive an advantage, by exonerating himself from the charge of maintaining a hayward, if he could throw on this defendant the charge of repairing the hedge, and consequently, he was interested in the event of the suit. Auscombe v. Shore, 1 Taunt. R. 261. has a right of common, paying one penny for it; this finding will not support the plea; for the prescription is entire, and the payment of one penny annually is parcel of the prescription, and it shall be intended to be as ancient as the common. So if a right of common be claimed in certain land, and it is found that the common has been released in part of the land, such finding will not support the right claimed. So where the prescription is for common for all commonable cattle, evidence of a right of common for sheep and horses will not maintain the issue; but if the party has a general common, and prescribes for common for any particular sort of cattle, this will be good". So where the prescription was for common for 100 sheep, and it appeared in evidence, that the party was entitled to common for 100 sheep and 6 cows, it was holden to be good. See also Fountain v. Cook, post. tit. Trespass, Right of Way, S. P. (26). Where a prescriptive right of common is pleaded, and issue is joined on the prescription, and there is a verdict in favour of the right, the want of averring that the plaintiff's cattle were in that part of the land in which the common is claimed, or that the cattle were levant and couchant upon the land of the plaintiff, is aided by the statutes of jeofail. Tender of Amends.-Tender of amends before the taking of a distress makes the distress unlawful, and in such case an action of trespass may be maintained for taking the cattle'. Tender of amends after distress, and before impounding, makes the detainer unlawful, and gives the plaintiff a right of action for detaining his cattle. The stat. 21 Jac. 1. c. 16. s. 5. by which it is enacted, "that in all actions of trespass quare clausum fregit, wherein the defendants shall disclaim in their plea to make any title or claim to the land in which the trespass is by the declaration supposed to be done, and the trespass be by negligence, or involuntary, the defendants shall be admitted to picad a i Bushwood v. Pond, Cra. Whız 702. k Stennel v. Hog, 1 Soul. 235 f Rotheram v. Green, Cro. Eliz. 593. h Adm. S. C. 12 Inst. 107. (26) But it was said by Walme ly, if the joy halos idolat he had common ter 129. She and so more of the same kind then disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such trespass before action brought," is confined to actions of trespass, and does not extend to replevin". Avowry, &c. for Rent Arrear.-At the common law, it was necessary for a termor in an avowry for rent due from his tenant, to shew out of what estate, and in what manner the term was derived, because particular estates being created by agreement of the parties out of the primitive estate, it was the office of the court to judge, whether the primitive estate and agreement were sufficient to produce the particular estate". To obviate the difficulties which the avowant for rent arrear had to encounter in setting forth long and intricate titles, it was enacted by stat. 11 Geo. 2. c. 19. s. 22. that defendants in replevin might avow or make cognisance generally, that the plaintiff in replevin, or other tenant of the lands, whereon the distress was made, enjoyed the same under a grant or demise at such a certain rent during the time wherein the rent distrained for incurred, which rent was then and still remains due; or that the place, where the distress was taken, was parcel of such certain tenements holden of such honour, lordship, or manor, for which tenements the rent, relief, heriot, or other service distrained for, was at the time of such distress, and still remains due (27). This statute does not extend to a rent charge. Evidence that plaintiff held under an agreement for a lease, (where rent has not been paid) will not support an avowry or cognisance under this statute, viz. that plaintiff held by vir tue of a demise; for there is not any demise either express or implied P. The sum stated in the avowry or cognisance to be due for rent is not material; for if it appears that less rent is due than defendant has avowed or made cognisance for, yet is he entitled to recover for so much as is due. m Allen v. Bayley, Lutw, 1596. n Scilly v. Dally, Salk 562. Carth. 445. Ld. Raym. 331. S. C. Reynolds v. Thorpe, Str. 796. o Bulpit v. Clarke, 1 Bos, & Pul. N. R. 56. p Hegan v. Johnson, 2 Taunt. 148. q Said by Lord Ellenborough, C. J. in Forty v. Imber, 6 East, 437. to be the constant practice. (27) Nil habuit in tenementis cannot be pleaded in bar to an avowry for rent arrear under this statute. Syllivan v. Stradling, 2 Wils. 208. But see post, Taylor v. Zamira. Where the avowry is for parcel of a rent', or penalty' only, it ought to shew that the residue has been satisfied or dis charged, otherwise it will be bad on demurrer'. If the defendant avow for so much rent arrear", part whereof is not due at the time of the distress, and enters judgment for the whole, it will be error; but it may be cured before judgment, by abating the avowry as to the part not as yet due (28). Money may be paid into court on an avowry for rent arrear*. A rent is granted to A. for a term of years, with a clause in the deed, that A. and his heirs may distrain for the rent during the term: A. dies; the executor shall have the rent and distrain for it, and not the heir'. One joint tenant may distrain for the whole rent, but he ought to avow for part only in his own right, and for the residue he ought to make cognisance as bailiff to his companion. Parceners must join in an avowry for rent arrear1. A. and B. were tenants in common in fee of land'; A. granted a lease for years of his moiety to C. reserving a rent; C. assigned the lease to B.; it was holden, that A. might distrain upon B. for rent arrear, and avow for taking the distress in any part of the land. An avowry, justifying the taking a distress for rent arrear for a ready-furnished lodging, is good; it having been holden, that a landlord is entitled to distrain for the rent of ready-furnished lodgings. Pleas in bar. Eviction.-To an avowry for rent arrear, the plaintiff may plead in bar an eviction or expulsion; for that occasions a suspension of the rent. But care must be taken, that an absolute eviction is stated in the plea, or at least such facts as amount in law to an eviction; for where, to an avowry for rent arrear for a dwelling-house, the r Hunt v. Braines, 4 Mod. 402. Holt v. Sambach, Cro. Car. 104. t Johnson v. Baines, 12 Mod. 84. u Richards v. Cornforth, Salk. 580. x Vernon v. Wynne, 1 H. BI. 24. y' Darrel v. Wilson, Cro. Eliz. 644. z 5 Mod. 73. 12 Mod 96. a Stedman v. Bates, Ld. Raym. 64. d Hunt Cope, Cowp. 242. (28) See 1 Williams's Saunders, 285. n. 6. 8. and Harrison v. Barnby, 5 T. R. 248. plaintiff pleaded, that the defendant pulled down a summer-house, part of the premises, whereby the plaintiff was deprived of the use thereof; it was holden, that the plea was insufficient, because it stated merely a trespass, and not an eviction. Non dimisit. Non tenuit.-The most usual pleas in bar to an avowry for rent arrear are, 1. Non dimisit, that is, that the avowant did not demise; 2. Non tenuit modo et formâ, or that the plaintiff did not hold the land in manner and form, &c. When issue is joined on the non tenuit modo et formâ, the defendant is not holden to strict proof as to the identical time during which he alleges the tenant to have holden and enjoyed the land, &c. demised. Hence, where the defendant made cognisance for two years and a quarter's rent in arrear, and alleged, that for a long time, to wit, for two years and a quarter, ending on the 25th December, 1803, the plaintiff held and enjoyed the property demised, to which the plaintiff pleaded non tenuit modo et forma, and issue was joined thereon; proof that the plaintiff held and enjoyed from the 23d of December, 1801, was adjudged sufficient to entitle defendant to a verdict for two years' rent. Riens in Arrear.-Riens in arrear, or no rent in arrear, may be pleaded in bar to this avowry; but such plea ought to conclude to the country; for where de injuria suâ propriâ absque hoc quod redditus fuit in aretro was pleaded to a cognisance for rent arrear; it was holdenf ill on special demurrer, as putting the defendant to an unnecessary replication. This plea admits the holding to be as stated in the avowry; hence if the avowry state that the plaintiff' held the premises under a rent reserved quarterly, under the issue riens in arrear, the plaintiff will not be permitted to shew that he held, under a rent reserved half yearly. A general plea of de injuriâ suâ propriâ absque tali causâ to an avowry or a cognisance for rent arrear will be bad, on special demurrer; for this general plea can be plcaded only "where the defendant's plea rests merely upon matter of excuse, and not upon any matter of interest or authority, mediately or immediately derived from the plaintiff, or any commandment." e Forty v. Imber, 6 East, 434. f Horn v. Lewin, Salk. 583. g Hill v. Wright, 2 Esp. N. P. C. 670. h Jones v. Kitchen, 1 Bos. & Pul. 76. i Crogate's case, 8 Rep. 66. b. Doct. pl 114, 115. |