Definition
A writ of the common law courts that formerly lay against a person impleaded in the county court for the surcharge (overloading) of a common pasture with cattle. The writ operated to remove the cause from the county court into one of the superior courts of common law. It belongs to the category of writs regulating both the management of common land rights and the jurisdictional allocation of litigation between lower and higher courts.
In substance, the writ addressed two distinct legal concerns simultaneously: first, the substantive wrong of surcharging a common — that is, turning out more animals than one's right of common entitled — and second, the procedural question of which court properly heard such a dispute. The writ's effect was to lift the matter out of the county court and place it before a superior tribunal.
Common Confusion
Superoneratione pastura should not be confused with supersedeas, despite their proximity in Bouvier and some other historical dictionaries. Supersedeas is a general writ commanding that proceedings be stayed or set aside; superoneratione pastura is a specific writ tied to the surcharge of common pasture and the removal of that particular category of dispute to a superior court. The two writs share a removal or suspending function in a broad sense, but their occasions, targets, and legal contexts are entirely distinct.
Researchers should also distinguish surcharge of common (the substantive wrong of overloading a common with more livestock than one's right allows) from the writ itself. Superoneratione pastura is the procedural instrument, not a synonym for the underlying wrong.
Why It Matters in Research
This term will appear almost exclusively in historical sources dealing with the English common law of common rights and the writ system. Researchers should be aware of several navigational points.
First, the term is archaic and highly specialized. It does not correspond to any modern cause of action or procedural mechanism. Encountering it in a historical source signals that the document predates the consolidation of the English court system and the abolition of most common law writs in their traditional forms during the nineteenth century. The Judicature Acts of 1873–1875 effectively ended the technical writ system within which this remedy operated.
Second, researchers approaching surcharge of common as a substantive wrong should not rely on entries for superoneratione pastura as their primary guide to the underlying right. The writ is a procedural vehicle; the substantive law of common rights — including the nature of a right of common of pasture, how surcharge was measured, and the remedies available — must be traced separately through treatments of common rights, commoners, and levancy and couchancy.
Third, the connection to county court jurisdiction is significant for legal historians. The writ's function of removing a case to a superior court situates it within a large family of removal mechanisms and jurisdictional writs that shaped English litigation strategy well into the modern period. Researchers studying forum selection, removal practice, or the decline of county court jurisdiction will find this writ relevant context.
Fourth, American legal sources are unlikely to reproduce this writ in practice. It is an English common law instrument with no direct colonial American equivalent, though Bouvier includes it as part of the inherited common law vocabulary that American lawyers trained on.
Historical Dictionary Support
Bouvier's Law Dictionary provides the sole entry in the Law Mind corpus for this term, and its treatment is brief. Bouvier correctly identifies the writ's occasion (impleading for surcharge of a common in the county court), its mechanism (removal to a superior court), and its historical character (the writ "formerly lay," acknowledging obsolescence). The entry contains no analysis of the underlying right of common or the elements of surcharge, and offers no discussion of how the writ interacted with other removal mechanisms or with the substantive law of common rights.
Notably, Bouvier's source text for this entry runs directly into the entry for SUPERSEDEAS without a clear break, reflecting the compressed format of the dictionary. Researchers should be careful not to conflate the two entries: superoneratione pastura is a distinct writ addressing a specific agricultural and jurisdictional context, while supersedeas is a broader writ commanding the stay of proceedings. The adjacency is typographical, not substantive.
Older English legal dictionaries and Fitzherbert's Natura Brevium would offer fuller treatment of this writ within its native system. Blackstone's Commentaries, in its treatment of common rights and the forms of action, provides essential background for understanding the context in which this writ operated.
Jurisdictional Note
This writ is specific to the English common law system and has no recognized American procedural counterpart. Its relevance in American legal research is confined to historical and comparative contexts. Researchers working with colonial-era or early republic materials may encounter the term as inherited English vocabulary, but the writ itself was not transplanted into American practice in any functional form.