COMMON OF PASTURE. OBS. Common of pasture is a right of feeding beasts on the land of another, and it is either appendant, appurtenant, or in gross. Co. Litt. 122; 2 Bl. Com. 33; Com. Dig.; and Bac. Abr. "Commons ;" Musgrave v. Cave, Willes Rep. 319. Common appendant is a right belonging to the owners or occupiers of arable land to put commonable beasts upon the lord's waste, and upon the lands of other persons within the same manor. Commonable beasts are either beasts of the plough or such as manure the ground. 1 Bl. Com. 32, 33. It must, at common law, have existed from time immemorial. Selw. N. P. Common appurtenant arises from no connection of tenure, nor from any absolute necessity, but may be annexed to lands in other lordships, or extend to other beasts besides such as are generally commonable, as hogs, goats, or the like, which neither plough nor manure the ground. This, not arising from any natural propriety or necessity like common appendant, is therefore not of general right, but can only be claimed by immemorial usage and prescription, which the law esteems sufficient proof of a special grant or agreement for this purpose. 1 Bl. Com. 33; Selw. N. P. Common in gross, or at large, is such as is neither appendant nor appurtenant to land, but is annexed to a man's person, being granted to him and his heirs by deed; or it may be claimed by prescriptive right, as by a parson of a church, or the like corporation sole. This is a separate inheritance, entirely distinct from any landed property, and may be vested in one who has not a foot of ground in the manor. 1 Bl. Com. 34; Selw. N. P. It may be granted for all manner, and for an unlimited, or for a certain number of, eattle. Ib. It is not necessary in pleading to distinguish between these different sorts of common. Musgrave v. Cave, Willes Rep. 319. By the prescription act, 2 & 3 W. 4, c. 71, s. 1, it is enacted, "That no claim which may be lawfully made at the common law by custom, prescription, or grant to any right of common or other profit or benefit, to be taken and enjoyed from or upon any land (except such matters and things as are herein specially provided for, and except tithes, rent, and services), shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated, or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years; but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated, and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing." The proof of the right lies upon the person claiming it, and evidence of enjoyment for twenty-nine years will not satisfy the former part of this clause. Bailey v. Appleyard, 8 Ad. & E. 161–778. And where A. claims a right of common over a crown forest, in respect of an allotment of waste land made to him under an inclosure act in 1810, and relies on an uninterrupted enjoyment for thirty years, he may be defeated by showing that the enjoyment of the right commenced in 1810, and that the grant of any right over the forest was made absolutely void by a statute previous to 1810. Mill v. The Commissioners of New Forest, 18 C. B. 60; 25 L. J. C. P. 212. And in that case it was doubted whether the statute applied to a case in which the right claimed could not have been legally granted, by reason of an express prohibition contained in a statute. Ib. A mere intermission of the user will not amount to a hostile interruption sufficient to defeat a claimant. Carr v. Foster, 3 Q. B. 581; 11 L. J. Q. B. 284. See Bailey v. Appleyard, 8 Ad. & E. 165. See Addison on Torts, 106, 107; and s. 4 of the act, which is set out at length, ante, "Ancient Lights," p. 479. A declaration by a deceased tenant of a farm, unaccompanying an act, that he is not entitled to common of pasture in respect of the farm, is not admissible OBS. evidence against the reversioner. Papendick e. Bridgwater, 5 El. & Bl. 166 ; 24 L. J. Q. B. 289. The 4th, 5th, and 7th sections of the act have been already cited at length, ante, For obstructing the Plaintiff's Right of Common. (u) For that the plaintiff was possessed of a messuage and land, (x) and by reason thereof (y) was entitled to have (2) common of pasture for all his commonable cattle, levant and couchant, (a) in and upon his said messuage and land in a certain common, situate at called -, every year, and at all times of the year, as to the said messuage and land belonging and appertaining. And the defendant on divers days and times disturbed and hindered the plaintiff in his enjoyment and rightful exercise of his said right of common, by wrongfully and injuriously (b) [erecting and continuing fences in and upon the said common, and thereby inclosing a part of the same] [or by digging up and subverting the soil of the said common, and carrying away the same], [or by planting and placing, and continuing, in the said soil of the said common, divers trees and shrubs], [or by putting and placing a large number of sheep in and upon the said waste and common, and there keeping the same for a long time], whereby the plaintiff was prevented from having the use and enjoyment of the said waste and common of pasture, as he otherwise might have had. (c) (u) Form for impoverishing common by removing the manure of the cattle. Pindar r. Wadsworth, 2 East, 154. By putting on cattle. Bowen v. Jenkin, 6 Ad. & E. 911; Nichols . Chapman, 29 L. J. Ex. 461; [5 H. & N. 643.] (x) Proof of possession of land will suffice, Ricketts v. Salwey, 2 B. & Ald. 360; 1 Chit. R. 104–112, S. C., where see a form. (y) These words appear unnecessary, and should be omitted if the plaintiff claim by grant. Ante, Obs. (=) The general form of showing the title was sufficient before the late act shortening the time of prescription, and is expressly sanctioned thereby. Ante, Obs. Still the right should be stated accurately, and if it be subject to any condition precedent, as a money payment to the lord; Bolam v. Atkinson, cor. Bayley J. Northumberland or Northampton Summer Assizes, 1827, 2 Stark. Ev. (3d ed.) 315, note (c); or be subject to restriction or qualifications as to the number of cattle; see 1 Saund. 28, note (4); 346b, c; 2 Saund. 327; Brook v. Willett, 2 H. Bl. 234; How . Strode, 2 Wils. 269; Manifold v. Pennington, 4 B. & C. 161; or the time of employment; 2 Saund. 2, 3; Musgrave v. Cave, Willes, 320; Smith v. Flower, 3 Bing. 401; the restriction should be stated. But an allegation of a right "at all times," means all "usual times of the day. Brook v. Willett, 2 H. Bl. 224, 234. The right alleged should not be larger than can be proved. See Beardsworth v. Torkington, 1 Q. B. 782. As to a statement of the right in a common field enjoyed with other persons, Cheeseman v. Hardman, 1 B. & Ald. supra. (a) If the right be for a number certain, this should be varied. 1 Saund. 28, note (4); 346 b, c; 2 Saund. 327. As to the meaning of these words, Whitelock v. Hutchinson, 2 M. & R. 205; Carr v. Lambert, 35 L. J. Ex. 121; [L. R. 1 Ex. 168.] (b) Of course only such of the following modes of obstruction as apply to the particular case will be stated. A general allegation of obstruction should be avoided as improper. Tebbutt v. Selby, 6 Ad. & E. 787. (c) No proof of actual or specific injury is requisite. Pindar v. Wadsworth, 2 East, 154; 2 Stark. Ev. 3d ed. 317. Therefore the plaintiff need not prove he used or attempted to use his right at the time. Wells v. Watling, 2 Bl. 1233. COMPANY. See post, "Public Company," and ante, part 1, pp. 225-229 and 451. CONSPIRACY. (d) OBS. The old writ of conspiracy has now become obsolete, and an action for a conspiracy is now the usual remedy, and may be brought against one. 1 Saund. 230, 234, note (b); Mills v. Mills, Cro. Cas. 239; [Eason v. Westbrook, 2 Murph. (N. Car.) 329; Bigelow J. in Parker v. Huntington, 2 Gray, 126, 127; Jones v. Baker, 7 Cowen, 445; Hutchins v. Hutchins, 7 Hill, 104: Page v. Cushing, 38 Maine, 523; Page v. Parker, 40 N. H. 47; Randall v. Hazelton, 12 Allen, 412, 414.] See Barber v. Lesiter, 7 C. B. N. S. 175; 29 L. J. C. P. 161, where it was held that the declaration was bad, on the ground that, if it was a declaration on the case in the nature of a conspiracy, it did not show that the damage to the plaintiff was intended by the defendant, or was the legitimate result of his acts; and that, if it was a declaration for a malicious prosecution, it did not show that the defendant caused the prosecution to be instituted, nor a termination of it in the plaintiff's favor. See 1 Saund. 230 a, note (b). One of two parties to an agreement to suppress a prosecution for felony cannot maintain an action for a conspiracy for an injury arising out of the transaction, in which they have both been illegally engaged. Fivaz v. Nicholls, 2 C. B. 501; 15 L. J. C. P. 125. See Castrique v. Behrens, [3 El. & El. 709 ;] 30 L. J. Q. B. 163. [No action lies for a mere conspiracy unless it results in actual damage. Herron v. Hughes, 25 Cal. 555. The damage and not the conspiracy is the gist of the action. Hutchins v. Hutchins, 7 Hill, 104; Tappan v. Powers, 2 Hall (N. Y.), 277; Hinchman v. Richie, Bright (Pa.), 143; Chapman J. in Bowen v. Matheson, 14 Allen, 502; Bigelow J. in Parker v. Huntington, 2 Gray, 127; Page v. Parker, 40 N. H. 66, 67. As to the damage, see Patten v. Gurney, 17 Mass. 186; Swan v. Saddlemire, 8 Wend. 676. This action cannot be sustained against a principal and agent jointly for the unauthorized fraudulent acts and representations of the agent alone. Page v. Parker, 40 N. H. 47; Parsons v. Winchell, 5 Cush. 592. The acts of conspirators, as affecting each other, see Page v. Parker, 40 N. H. 47 ; S. C. 43 N. H. 363; Hinchman v. Richie, su-pra; Tappan v. Powers, 2 Hall (N. Y.), 277. As to the necessity for averring the means by which the injury was intended to be effected, see Setzar v. Wilson, 4 Ired. (Law) 501.] Declaration for conspiring to hiss an Actor. Gregory v. The Duke of Brunswick, 6 M. & Gr. 205. CONTRACTORS. See ante, "Commissioners," and post, "Negligence." CONVERSION. See post, "Trover.” COPYRIGHT. OBS. Copyright appears now to depend entirely upon statute. See Jefferys r. Boosey, 4 H. L. Cas. 815; Reade v. Conquest, 9 C. B. N. S. 766. [See Wheaton v. Peters, 8 Peters, 591; Clayton v. Stone, 2 Paine, 382; Bartlett v. Crittenden, 5 McLean, 32.] The law is now regulated by 5 & 6 Vict. c. 45. By s. (d) See, also, Fivaz v. Nicholls, 15 L. J. 29 L. J. C. P. 161; Castrique v. Behrens, 30 C. P. 125; [2 C. B. 501 ;] Barber v. Lesiter, L. J. Q. B. 163; [3 El. & El. 709.] OBS. 2, the period of copyright extends for forty-two years, or seven years after the author's death (whichever term shall be the longest). [Copyright is regulated entirely by acts of Congress in the United States. See Rev. Sts. U. Š. tit. lx. c. 3, p. 965 et seq. And the courts of the United States have exclusive jurisdiction of cases arising under these acts. Rev. Sts. U. S. tit. xiii. c. 12, p. 135. Copyrights are granted for the term of twenty-eight years from the time of recording the title thereof, with a right of continuance in the author at the end of that term, in himself if he be then living, or, if not, then in his widow or children. Rev. Sts. U. S. tit. lx. c. 3, p. 966, §§ 4953, 4954. See Pierpont v. Fowle, 2 Wood. & M. 42.] And it appears that a foreign author, residing abroad, who first publishes his work here, has not, nor has his assignee here, any copyright in this country. Chappell . Purday, 14 M. & W. 303; 14 L. J. Ex. 258. But an alien who whilst resident in any possession of the British crown, first publishes his work in England, acquires a copyright throughout the British dominions. Low v. Routledge, 33 L. J. Ch. 717; [S. C. L. R. 1 Ch. Ap. 42; S. C. L. R. 3 H. L. 100. See Boucicault v. Wood, 7 Am. Law Reg. N. S. 539.] A gratuitous circulation is a publication for which a person is liable as an invasion of the property of the proprietor. Novello v. Sudlow, 12 C. B. 177; 21 L. J. C. P. 169. The 11th section [5 & 6 Vict. c. 45] provides that a book of registry for the proprietorship of copyrights and the assignment thereof shall be kept at Stationers' Hall; and a certified copy of the entries in such book under the hand of the officer of the company, and impressed with their stamp, shall be "primâ facie proof of the proprietorship or assignment of copyright or license as therein expressed, but subject to be rebutted by other evidence." And by s. 24, No action can be maintained for the infringement of the copyright of any book which shall be first published after the passing of the act, unless such entry has been made." [For corresponding provisions in the copyright laws of the United States, see Rev. Sts. U. S. tit. lx. c. 3, §§ 4948, 4956, 4957, 4962.] It would appear doubtful in an action for an infringement whether there should be an allegation that the copyright had been registered pursuant to the act; but, at all events, the non-registration should be pleaded. Chappell v. Davidson, 18 C. B. 194; 25 L. J. C. P. 225. [In all actions arising under the United States laws respecting copyrights, the defendant may plead the general issues, and give the special matter in evidence. Rev. Sts. U. S. tit. lx. c. 3, § 4969.] Sect. 13 [5 & 6 Vict. c. 45] provides for the form of entry of proprietorship, [see Rev. Sts. U. S. tit. lx. c. 3, § 4957,] and enacts that it shall be lawful for every such registered proprietor to assign his interest, or any portion of his interest therein, by making entry in the said book of entry of such assignment, of the name and place of and abode of the assignee thereof in the form given in the schedule, and such assignment so entered shall be effectual in law to all intents and purposes whatsoever, without being subject to any stamp or duty, and shall be of the same force and effect as if such assignment had been made by deed." [For provisions respecting assignments of copyright, and recording the same, in the United States, see Rev. Sts. U. S. tit. lx. c. 3, § 4955.] As to registration, see Stevens v. Wildy, 19 L. J. Ch. 190; Wood v. Boosey, 36 L. J. Q. B. 103; [L. R. 3 Q. B. 223.] To entitle any one but the author to register, there must be an absolute assignment of the copyright; Ex parte Bastow, 14 C. B. 631; Cumberland v. Copeland, 7 H. & N. 118; and if an entry has been improperly made, the court may order it to be varied or expunged. Ib. But the court will not order it to be expunged unless it is clearly false, or vary it unless satisfied that they would be making a true entry by so doing. Ex parte Davidson, 18 C. B. 297; 25 L. J. C. P. 237. See Ex parte Davidson, 2 El. & Bl. 577; see s. 14 of the act. As to the proper description of the proprietor's place of abode, see Lover v. Davidson, 1 C. B. N. S. 182; and see Graves v. Ashford, 36 L. J. C. P. 139; [L. R. 2 C. P. 410.] Sect. 15 enacts that "if any person shall print, or cause to be printed, either for sale or exportation, any book in which there shall be a subsisting copyright, without the consent in writing of the proprietor thereof, or shall import for sale or hire any such book, so having been unlawfully printed, from parts beyond the sea, or knowing such book to have been so unlawfully printed or imported, shall OBS. sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his possession for sale or hire any such book so unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright." [For corresponding provisions in the laws of the United States, see Rev. Sts. U. S. tit. lx. c. 3, § 4964.] As to what is an infringement of copyright, see Jefferys v. Boosey, 4 H. L. See ante, part 1, p. 368. 1. For printing for Sale Pirated Copies of a Book. (e) For that the plaintiff was the proprietor of the subsisting copyright in a book intituled ; yet the defendant, after the passing of the act of parliament passed in the sixth year of the reign of Queen Victoria to amend the law of copyright, wrongfully and without the consent in writing of the plaintiff, printed and caused to be printed for sale [or "exportation"] divers copies of the said book (ƒ) contrary to the said statute, whereby the profits of the plaintiff in his said copyright therein have been diminished and lessened, and he has been otherwise injured. " (e) Form, Sweet v. Benning, 16 C. B. 459; 24 L. J. C. P. 175. A "sheet of music is comprised in the term "book." 5 & 6 Vict. c. 45, s. 2. See, further, as to the piracy of music, Clementi v. Walker, 2 B. & C. 861; White v. Geroch, 2 B. & Ald. 298; Jefferys v. Boosey, 24 L. J. Ex. 81; [4 H. L. Cas. 815;] Cocks v. Purday, 5 C. B. 860; 17 L. J. C. B. 273; Boosey v. Pur day, 4 Ex. 145; 18 L. J. Ex. 378; Chappell v. Davidson, 18 C. B. 194; 25 L. J. C. P. 225; Novello v. Sudlow, 12 C. B. 177; 21 L. J. C. P. 169, where see various forms. (f) The declaration need not state that defendant published plaintiff's book. It states a good cause of action if it avers publication of parts of a book. Rooney v Kelly, 14 Ir. C. L. Rep. 158. |