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BATESON

GREEN,

which the grass had grown again. It was further proved that the common, even if no pits had been dug, was not sufficient for the number of commoners. On the part of the defendants it appeared that clay had been dug by the lord for 70 years past, and sold by him during that time. That from time to time brick-kilns had been erected there ; and that the pipe-makers had by licence of the lord got clay and dressed it there, without any hindrance or complaint made by the commoners of any of these acts. That the lord's tenants had been assessed to the land-tax and poor rates for above 20 years past in respect of the clay-pits on the common, which they rented under him; and the plaintiff's own handwriting was proved to some of these assessments and poor rates 12 or 13 years ago. The jury found a verdict for the plaintiff.

Law moved for a new trial on the ground that the verdict was

against law and evidence : It appeared that the lord had a right to the enjoyment of the common in the fullest extent, no limitation of his right having been attempted to be shown; and such a claim on his part might legally exist. But if it were to be taken that the lord had no right to enjoy the common beyond *the extent in which in point of fact he had exercised his right, but had a right to enjoy it to that extent, then the verdict was against evidence; for it was not proved that the right had been in fact exercised beyond the measure of any former period.

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Cockell, Serjt., and Chambre, showed cause against the rule : The question in this case has been set at rest by the finding of the jury. For although it was contended on the part of the defendants, that the lord had a right to use this common as he pleased, and the case of Clarkson v. Woodhouse (1) was cited at the trial, in *order to show (as was contended) that such a right might exist in point of law, yet the CHIEF BARON in summing up told the *jury that the lord had a right to dig in the common, leaving sufficient herbage for the commoners; and therefore if they were of opinion that sufficient herbage had not been left and the *lord had been guilty of an excess, he could not justify what had been done, and the defendants who acted under his authority were

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(1) 5 T. R. 412, n. (M. 23 Geo. III. B. R.); 3 Doug. 189. [It is not thought useful to reprint this case;

the principle is better stated in Folkard v. Hemmett, p. 103, post.F. P.]

BATESON

GREEN.

responsible in this action; and upon this charge the jury found that the defendants had been guilty of an excess. As on the one hand it is not denied that such a right as this to dig upon the waste for the purpose of taking clay may exist in the lord, so on the other hand it cannot be contended that he may exercise this right to such an extent as totally to destroy the common itself. Rights which are repugnant to each other cannot exist : and if the commoners have a right to the herbage of the common, which is not disputed, the lord cannot have a right to do that which tends to deprive them of it altogether. Now there cannot be stronger evidence of excess than was given in this case, where upon so small a common about four acreu have been destroyed within a few years past. It appears, too, that this right has been more destructively exercised of late than formerly, because the holes have not been filled up again, so that the herbage can never be restored to its former state.

Law, contrà, was stopped by the Court.

LORD KENYON, Ch. J.:

The only question is, Whether the evidence supports the verdict for the plaintiff? and I am clearly of opinion that it does not. It appears, it is true, that a few acres of the common have been rendered unproductive to the commoners; but the right of digging for clay in the common is incontestably proved to have existed at all times in the lord; and no witness has stated in what respect this right has been more exercised of late years than it was formerly. That such a right as the lord has here exercised may exist in point of law cannot be doubted. For if the lord has always dug in this common and taken what clay he pleased without interruption or complaint (and nothing appears to show that his right was limited to any particular extent), there is no pretence for subjecting him or those who claim under him to such an action as the present, although the commoners have been abridged of their enjoyment of some part of the common. If, indeed, it had *appeared that the lord had only a right to dig clay for his own use, or had any other limited right of that kind, then indeed his digging for the purpose of sale would have been an excess, for which he would have been answerable: but all the evidence tends to establish a general right; and, therefore, there ought to be a new trial.

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BATESON

GREEN.

ASHHURST, J.:

I entirely agree with the opinion given by my Lord. The extent of the lord's right is a matter to be collected from the evidence; and here it appears that he has always exercised the right of digging in the common as much as he pleased without any control or objection.

BULLER, J.:

This case does not fall within the Statute of Merton (1), but depends altogether on immemorial custom as to the extent of the several rights claimed by the lord and the commoners. Where there are two distinct rights, claimed by different parties, which encroach on each other in the enjoyment of them, the question is, which of the two rights is subservient to the other? It may be either the lord's right which is subservient to the commoners, or the commoners' which is subservient to the lord's. In general, one would say that the lord's is the superior right, because the property of the soil is in him: but if the custom, established by evidence, show that it is subservient to the commoners, then he cannot use the common beyond that extent; otherwise he subjects himself to an action for the excess. But here the evidence shows, that the commoners' right to the enjoyment of the common has always been subservient to the lord's, for he has always dug the common, when, where, and in what manner he pleased; though for a great number of years past it is proved that there was not a sufficiency of common as claimed by the tenants. There are the marks of old pits dug there, which are now covered again with herbage; and it appears that for 70 years past, he has from time to time dug clay for the purpose of sale, and licensed other persons to do the same. There is no evidence to contradict this; and, therefore, there is no foundation for the verdict which has been given.

GROSE, J.:

One of the circumstances alluded to is very strong in support of the right exercised by the lord; for although it is proved, that there is not, nor, for aught appears, ever has been common sufficient for all the commoners, even if no part of the soil had ever been subverted, yet it appears that for many years past the

(1) 20 Hen. III. c. 4. [“ Approvement" within the Statute of Merton is now not valid unless made with the

consent of the Board of Agriculture, 56 & 57 Vict. c. 57, s. 2.-R. C.]

BATESOX

lord has constantly dug for clay to the destruction of the herbage, without any dispute on the part of the *commoners. That shows that the commoners always understood that their right was subservient to the enjoyment of the common by the lord.

Rule absolute.

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1775.

AFTER

FOLKARD v. HEMMETT AND OTHERS.
(5 T. R. 417, n.)

SITTINGS Case by a commoner against a stranger for digging up the soil EASTER,

16 Geo, III. and erecting several buildings, whereby the plaintiff could not enjoy-C.B. his common in so ample a manner, &c. The defence was a grant [5 T. R.

417, n. ] of the soil to the defendant by the lord, with the consent of the homage, in fee at the will of the lord, according to the custom, rent, and fine.

Wallace, for the defendants, at the trial insisted, that in a copyhold manor everything depends on custom ; that it had been in this manor a custom for a great number of years for the lord, with the consent of the homage, to make such grants, for building houses; that the lord having from time to time done these acts, the acts were evidence to a jury, that at the time he granted his license to the commoners to depasture on the waste, he reserved the right to make such grants. It was proved that on the 29th of May, the defendant applied at a court for a grant, in order to erect a house; that the homage surveyed the spot, and reported that it would be no detriment to the lord ; and they gave their consent on the 6th of July, 1775. Then the admission was proved ; after reciting what passed on the 29th of May, the lord granted, &c. (the homage consenting). Evidence was also given of the exercise of these rights from 1599 to the trial (in some years ten instances) ; none of the rolls were more than 20 years older. Evidence was likewise given that the ground in question was but of little use, being covered with furze bushes.

DE GREY, Ch. J.:

The plaintiff must prove himself to be in possession of a right of common, and that this right has been prejudiced ; any prejudice in the minutest degree is sufficient. The defendants justify under the usage. I will not call it a custom, because I look on it as a reserved right of the lord. There are two considerations : 1st, If this usage be true? 2ndly, If true, whether legal ? As to the

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first, the defendants have proved by the court rolls that it has been the usage ever since 1599; as to the 2nd, it is a matter of law, a question of novelty and importance. The reason of such a reservation by the lord might be its vicinity to London. The jury (a special one) thought the land was of no value, and consequently that the plaintiff was not damaged ; and they found a verdict for the defendants.

The idea of the reserved right was thrown out by the CHIEF JUSTICE at the beginning of the trial.

1798.

WILSON V. MARRYAT. Nor, 21.

(8 T. R. 31–46.) Lord KENYOX,

Under the commercial treaty made in 1795 between this country and the | Ch. J.

United States of America, it was not necessary that the trade from America [ 8 T. R. 31 ]

to our settlements in the East Indies should be direct; it might be carried on circuitously by the way of Europe. A natural-born subject of this country may also be a citizen of the United States for the purposes of commerce, and entitled to all the advantages of a United States citizen under this treaty; the circumstance of his coming over here for a temporary purpose does not deprive him of those advantages. If there be any illegality in the commencement of an integral voyage, and an insurance be effected on the latter part of the voyage, which taken by itself would be legal, still the assured cannot recover on the policy. The plaintiff declared on a policy of insurance made the 29th of February, 1796, and averred to be for the use and benefit of one John Collet, upon the American ship Argonaut and cargo, “at and from Bourdeaux to Madeira and the East Indies, and back to America, with liberty to touch, stay, and trade at all ports and places wheresoever, on her outward and homeward bound voyage."

The declaration then stated that the ship sailed from Bourdeaux, and that in the course of the voyage insured, she was seized and detained by certain officers of the King; by means whereof she became lost to the said John Collet. The second count stated a loss by the perils of the sea. The third count was upon a policy made the 28th of May, 1796, for the use of Collet, on the American

ship Argonaut and goods “at and from Bourdeaux to the East [ *32 ] Indies, with liberty to touch, call, and *trade at all ports, places,

or islands whatever, as well at the Cape as on this or on the other side of the Cape of Good Hope, until her arrival at her port of discharge in Bengal.” This policy was by a memorandum declared to be on certain wines and brandies specified, warranted neutral; and this count stated a loss by the seizure and detainment of the

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