Will. 4, c. 71, ss. 1, 4. Now here the suit commenced in 1866; but we shew that ever since 1859 all persons have been stopped in the exercise of the rights claimed. Again, we say that the Plaintiffs have not shewn themselves to be entitled to any land in respect of which they can have the rights they claim. All that is shewn is, that one Plaintiff is entitled to an ancient orchard, in respect of which there can be no right of common of pasture; and that another is entitled to a piece of land which is completely built upon, and consequently in respect of which any right of common which ever existed must be taken to be abandoned, or at all events suspended: Carr v. Lambert (1); Reg. v. Chorley (2); Crossley v. Lightowler (3). Besides all this, we deny that the evidence proves the existence of any rights in the freeholders. Any rights which are shewn to exist belong to the inhabitants or parishioners of Plumstead, not to the tenants of the manor. The right of recreation, for example, is proved to exist just as much as the right of cutting turf: the former right must belong to the inhabitants, not to the freeholders; and why may not the same remark apply to the latter? It is assumed, on the other side, that the manor of Plumstead originally comprised the whole parish; and that when a submanor was granted out, the tenants of the submanor retained their former rights of common; that would depend on the grant, and the fact cannot be assumed without evidence. Sir Roundell Palmer, in reply: It is denied that freehold tenants of a manor have such a community of interest as to enable them to maintain this suit, though it is admitted that copyholders have such a community of interest. The same point was raised in Smith v. Earl Brownlow (4), and must be taken to have been decided adversely to the Defendant; for by the decree a declaration was made, in the terms of the prayer of the bill, to the effect that the Plaintiffs were entitled to rights appendant or appurtenant to their freehold and copyhold tenements; and if it had been held that quà freeholder the Plaintiff could not maintain his suit, such a declaration would have been improper. (1) Law Rep. 1 Ex. 163. (3) Law Rep. 3 Eq. 279. M. R. 1870 WARRI บ. QUEEN COLLEG OXFOR M. R. 1870 WARRICK V. QUEEN'S COLLEGE, OXFORD. It is said that a freehold tenant must claim his rights either under grant or by prescription, not by custom; and that so doing, every tenant must sue separately in respect of any infringement of his rights. I admit that, as explained in Co. Litt. (1), there is a well-founded difference between custom and prescription; but the consequences which flow from that difference are, in a Court of Equity at all events, much smaller than has been supposed. In the first place, it is clear that in establishing title by prescription, custom is an important ingredient. Thus in Comyn's Digest, tit. "Prescription," it is laid down that prescription rests on two things, time and usage: usage is the Latin word usus, which is equivalent to consuetudo, i.e. custom. In 12 Car. 2, c. 24, s. 1, it is enacted that all tenures shall be turned into common socage, any law, statute, custom, or usage to the contrary notwithstanding— a passage which shews the close connection between custom and usage, and also shews that customs may govern the incidents of freehold tenures; for the statute deals only with freeholds, the law relating to copyholds remaining unaltered. The nature of a right of common is explained in Co. Litt. (2), and the definition of it does not imply several grants to many persons, but a single grant in which many participate. Coke's first division of common of pasture is common appendant, of which he says that it is of common right, and therefore a man need not prescribe for it. There is no doubt a difference in the mode in which a freeholder and a copyholder claim a right of common; the former prescribes for it in his own name, the latter in the name of the lord. The reason is, that a copyholder has not such an estate as to support a title by prescription: Hoskins v. Robins (3). But although each freeholder prescribes in his own name, and each copyholder in the name of his lord, it by no means follows that there is no community of interest among freeholders, or that freeholders are not affected by the customs of a manor, as the Defendants contend. Perryman's Case (4) and Griesley's Case (5) shew that the custom of a manor extends to freeholders; and many other cases are cited in Scriven on Copyholds (6); Nelson's Lex Mane (1) Page 113 b. (4) 5 Rep. 83 b. (2) Page 122. (3) 2 Wms. Saund. 319 f. (5) 8 Rep. 38 a. (6) 3rd Ed. vol. ii. pp. 742, 747. riorum (1). In Damerell v. Protheroe (2), the lord claimed a heriot by custom, and proved his title by presentments on the Court Rolls. [The MASTER OF THE ROLLS:-How do you reconcile that case with Earl of Dunraven v. Llewellyn? (3)]. Sir Roundell Palmer:-In that case the question was whether a particular spot of land formed part of the waste of a manor, or belonged to an entire stranger. Evidence was offered that tenants of the manor had said that the spot formed part of the waste; but such statements were clearly of no greater weight than if they had been made by the lord of the manor himself; and it is quite clear that no amount of statement by him could establish his own title against a third party; but it is a very different thing where, as in Damerell v. Protheroe, and in the present case, the question is between the lord of the manor and his tenants. It is desirable to bear in mind the issue raised by this suit. The Plaintiff comes forward, not claiming a right in himself, and taking no notice of any one else, but saying that he and all the tenants of the manor have certain rights. The Defendants reply by saying that no one has any right whatever. The evidence they offer does not go to shew that different classes of tenants had different rights; in fact, it would be hopeless to look for any evidence of the kind, for all these tenancies were created before the Statute of Quia Emptores, at a time when the freeholders by themselves formed a class of tenants of the manor; and it was not the practice to carve out particular tenures. But though no such evidence is offered, it is argued that common of pasture is incident only to arable land within the manor, and not to orchards or houses. But in ancient times only arable lands were granted out for purposes of cultivation; and, as incident to such a grant, the law presumed a grant of a right of common. Every tenant was bound to plough and manure his own land; and he was presumed to require land to feed the cattle he employed for such purposes. It has never been supposed that in order to establish a right to common you must shew that your predecessors in title ploughed some land (2) 10 Q. B. 20. (1) Page 54 et seq. (3) 15 Q. B. 791. M.1 187 WARR v. QUEE COLLE OXFO M. R. 1870 WARRICK v. QUEEN'S COLLEGE, OXFORD. previously to the Statute of Quia Emptores; on the contrary, all the cases shew that every presumption will be made which is consistent with the actual enjoyment of the land in respect of which the common is claimed, and that though the condition of the land be altered the right of common remains: Tyrringham's Case (1); Emerton v. Selby (2); Carr v. Lambert (3). The case of Dunstan v. Tresider (4) was decided on a point of pleading. But even at law freeholders have in certain cases been allowed as a body to claim right of common. Thus, in Potter v. North (5), it was pleaded, in bar to an action, that freeholders and copyholders had a right of common, and the plea was held good. Again, it appears from Fitzherbert's Natura Brevium (6), tenants of ancient demesne were entitled to sue out a writ of monstraverunt, the proceedings under which were in the nature of a suit by a member of a class as a representative of the whole class; and though such a privilege is at law confined to tenants of ancient demesne, a Court of Equity will find no difficulty in applying the principle to cases of a like nature. It also appears from the same book (7), that the lord of a manor might sue out a writ de consuetudinibus et servitiis ; and the form of this writ was a command by the King, that A. B. do to C. D. the customs and services which he ought to do for his freehold, which he holds of C. D. in G. That proves that the freeholders of a manor are bound by its customs; and though the tenants do not appear to have had the privilege of suing out a like writ against the lord of the manor, that is a defect in legal procedure which a Court of Equity will have no difficulty in supplying. It is to be observed that Fitzherbert expressly says that the lord may sue several tenants by the same writ. The cases in Equity were all cited by me in the argument in Smith v. Earl Brownlow (8), and on this occasion I shall content myself with citing only a few of them. Tothill, under the title "Common" (9), mentions a case of Tenants of Dosthorp v. Loveday, in which he says "a point of common a point of common" was determined. Mayor of York v. Pilkington (10) was a suit against Defendants having no (1) 4 Rep. 36 a. (2) 6 Mod. 115. (3) Law Rep. 1 Ex. 168. (4) 5 T. R. 2. (5) 1 Wms. Saund. 346, 349. (6) Vol. i. p. 14. (7) Vol. ii. p. 151. (8) Law Rep. 9 Eq. 241. (9) Page 98. (10) 1 Atk. 282. M. R. 1870 v. QUEEN'S COLLEGE, OXFORD. community of interest; and Lord Hardwicke says: "A bill may be brought against tenants by a lord of a manor for encroachments, or by tenants against a lord of a manor as a disturber, to be quieted WARRICK in the enjoyment of their common; and as in these cases there is one general right to be established against all, it is a proper bill, nor is it necessary all the commoners should be parties." There is no reason for saying that by "tenants" in this passage are meant copyhold tenants only. Again, the same Judge says, in Lord Tenham v. Herbert (1): "It is certain, where a man sets up a general exclusive right and where the persons who controvert it with him are very numerous, and he cannot, by one or two actions at law, quiet that right, he may come into this Court first, which is called a bill of peace,' and the Court will direct an issue to determine the right, as in disputes between lords of manors and their tenants, and between tenants of one manor and another." These passages are sufficient authority for the institution of this suit; for here the Defendants are setting up an exclusive right to this common, and are urging, by way of defence, that there ought, in equity as well as at law, to be separate proceedings by each tenant to establish his right, contrary to the express judgment of Lord Hardwicke. Besides, Powell v. Earl of Powis (2) is identical with this case. But even if it be not, why should the three old cases be overruled? Are they not entirely consistent with the principles of the Court, which constantly intervenes to extend justice to large numbers of persons in cases where the machinery of law is defective? What authority is there against it? The only one cited is Earl of Dunraven v. Llewellyn (3). That was not the case of a bill of peace, nor was the question there between the lord of a manor and his tenants; but it was between the lord and a stranger, the lord trying to establish his right by means of the declaration of parties in the same interest as himself; and all that was decided was, that the matter in dispute was not such a matter of public reputation as to allow such declarations to be admitted in evidence. That is no authority that the tenants of a manor cannot maintain a bill of peace against the lord. Gateward's Case (4), Grimstead v. Marlowe (5), and other cases (1) 2 Atk. 483, 484. (3) 15 Q. B. 791. (5) 4 T. R. 717. |