Referred to, p. 115.
It has been remarked that the author differs from the view of the Court of Exchequer Chamber in the case of Lord Dunraven v. Llewellyn (a), without stating his reason (b). In that case the Court held that there was no general common law right of tenants of a manor to common on the waste; but the author remarked that, in his humble opinion, the authorities cited by the Court tend to the opposite conclusion (c). The judgment of the Court is as follows : -
"The question in this case is, whether my brother Platt "was right in rejecting evidence of reputation, offered on "the trial before him, to show the title of the lord of the "manor of Ogmore to certain lands within the ambit of the "manor.
"The evidence was that there were very many lands and "tenements held of the manor, the tenants whereof, in "respect of those lands, had always exercised rights of "common for all their commonable cattle on a certain waste "adjoining to which was the locus in quo; and that the "deceased persons, being such tenants and exercising rights "ante litem motam, declared that the locus in quo was "parcel of the waste. Another description of evidence "was, that certain deceased residents in the manor had "made similar declarations. No evidence was given of the "exercise of the rights of those tenants over the locus in "quo. My brother Platt rejected the evidence, and, we "think, rightly.
(a) 15 Q. B. 791.
(b) Six Essays on Commons Preservation, Essay 3, by Mr. P. o. Crump, p. 188.
(c) Ante, p. 115, n. (j). The reader is now referred to the cases of Smith v. Earl Brownlow, L. E., 9 Eq. 241, and Warwick v. Queen's College, L. R., I0 Eq. 105, 123.
"In the course of the argument we intimated our opinion "that the want of evidence of acts of enjoyment of the "rights did not affect the admissibility of the evidence, but "only its value when admitted. We also stated that no ob-"jection could be made to the evidence on the ground that "it proceeded from persons who had not competent know-"ledge upon the subject, or from persons who were them-"selves interested in the question. The main inquiry was "whether this was a subject of a sufficiently public nature to "justify the reception of hearsay evidence relating to it.
"If this question had been one in which all the inhabit-"ants of the manor, or all the tenants of it, or a particular "district of it, had been interested, reputation from any "deceased inhabitant or tenant, or even deceased residents "in the manor, would have been admissible, such residents "having presumably a knowledge of such local customs; "and if there had been a common law right for every tenant "of the manor to have common on the wastes of it, reputa-"tion from any deceased tenant as to the extent of those "wastes, and therefore as to any particular land being waste "of the manor, would have been admissible. But although "there are some books which state that common appendant "is of common right, and that common appendant is the "common law right of every free tenant in the lord's wastes; "for example, note (I) to Mellor v. Spateman (77); Bennett "v. Reeve (e); Com. Dig. Common (B), it is not to be un-"derstood that every tenant of a manor has by common law "such a right, but only that certain tenants have such a "right, not by prescription, but as a right by common law, "incident to the grant.
"This is explained in Lord Coke's Commentaries on the "Statute of Merton (f), 2 Inst. 85. He says, 'By this "'recital' (of that statute) 'a point of the ancient common "'law appeareth, that when a lord of a manor (whereon "'was great waste grounds) did enfeoff others of some "'parcels of arable land, the feoffees ad manutenend' ser-"'vitium socae, should have common in the said wastes of "'the lord for two causes. 1. As incident to the feoff-"'ment, for the feoffee could not plough and manure his "'ground without beasts, and they could not be sustained "'without pasture, and by consequence the tenant should "'have common in the wastes of the lord for his beasts "'which do plough and manure his tenancy as appendant "'to his tenancy, and this was the beginning of common "'appendant. The second reason was, for maintenance "'and advancement of agriculture and tillage, which was "'much favoured in law.' The same law is laid down by "Coke and Foster, 1 Eol. Abr. 396, 1. 45, tit. Common "(C), pl. 4.
(d) 1 Wms. Saund. 346 d. (6th edit.)
(e) Willes, 227,231.
(f) Stat. 20 Hen. III. c. 4.
"This right, therefore, is not a common right of all "tenants, but belongs only to each grantee, before the "statute of Quia Emptores, of arable land by virtue of "his individual grant, and as an incident thereto; and it "is as much a peculiar right of the grantee as one derived "by express grant or by prescription, though it differs in "its extent, being limited to such cattle as are kept for "ploughing and manuring the arable laud granted, and as "are of a description fit for that purpose; whereas the "right by grant or prescription has no such limits, and "depends on the will of the grantor.
"We are therefore of opinion that this case is precisely in "the same situation as if evidence had been offered that "there were many persons, tenants of the manor, who had "separate prescriptive rights over the lord's wastes; and "reputation is not admissible in the case of such separate "rights, each being private, and depending on each separate "prescription, unless the proposition can be supported "that, because there are many such rights, the rights have "a public character, and the evidence, therefore, becomes "admissible.
"We think this position cannot he maintained. It is ini-"possible to Bay in such a case where the dividing point is. "What is the number of rights which is to cause their nature "to be changed, and to give them a public character?
"But it is said that there are cases which have decided "that where there are numerous private prescriptive rights "reputation is admissible; and the case of Weeks v. "Sparke (g) is relied upon as establishing that proposition. "The reasons given by the different judges in that case "would certainly not be satisfactory at this day; some put-"ting it on the ground of the custom of the circuits, some "upon the ground that where there was proof of the enjoy -"mcut of the right, reputation was admissible. Both these "reasons are now held to be insufficient. It may be that "the evidence admitted was that of reputation from deceased "commoners, which would be admissible on the same prin-"ciple that the statement of a deceased person in possession "of laud abridging or limitiug his interest is admissible; "but that reason does not apply to the present case, because "the statements are used to extend, not to limit the rights. "It was also said that the case of Weeks v. Sparke (g) had "since been sanctioned by the Court of Queen's Bench in "that of Pritchard v. Powell (h), where it was held that "reputation was admissible to prove common between two "wastes pur cause de vicinage. But the claim in that case "was treated as a matter of immemorial custom (see p. 603); "and reputation in support of a custom is admissible.