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IN Trespass for pulling down of Hedges; the Defendant pleads that he had right of Common, in the place where, &c. and the Hedges were made upon his Common, so that he could not in ea parte enjoy his Common in tam amplo modo, &c. and so justifies the pulling them down.
And they were at issue, whether the Defendant could enjoy the Common in tam amplo modo, &c. and there was a Verdict for the
Defendant, and Iudgment being staied 'till moved on the other side.
Scroggs Serjeant moved in Arrest of Iudgment, because the Plea was ill, and the Issue frivolous; for 'tis impossible that he should have Common where the Hedges are: And therefore the Defendant ought to have brought an Action upon the Case, or a quod permittat. He cannot abate the Hedges, though he might have pulled down so much as might have opened a Way to his Common.
The Lord hath an Interest in the Soil, and a Commoner hath no authority to do any thing but to enter and put in his Beasts, and not to throw down Quick-Set Hedges, for that is a shelter to his Beasts.
But the Court were of Opinion, That the Defendant might abate the Hedges, for thereby he did not meddle with the Soil, but only pulled down the erection; and the Book of 29 E. 3. 6. was express in this point. Vide 17 H. 7. 10. 16 H. 7. 8. 33 H. 6. 31. 2 Ass. 12. And nothing was said concerning the Plea, and so the Defendant had Iudgment.
Commoner may abate Hedges made upon his Com∣mon.
5 Rep. 100. 9 Rep. 55.
2 Cro. 195, 229.