Bridget and Papendick against William Bridgwater

JurisdictionEngland & Wales
Judgment Date31 May 1855
Date31 May 1855
CourtCourt of the Queen's Bench

English Reports Citation: 119 E.R. 443

IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER

Bridget and Papendick against William Bridgwater

S. C. 24 L. J. Q. B. 289; 1 Jur. N. S. 657; 3 W. R. 490. Principle applied, Howe v. Malkin, 1878, 40 L. T. 196. Distinguished, Blandy-Jenkins v. Dunraven, [1899] 2 Ch. 121.

[166] bridget ann papendick against william bridgwater. Thursday, May 31st, 1855. Plaintiff claimed a right of common by prescription, in respect of a que estate in land, and also by thirty and sixty years' enjoyment by the occupiers of the land. Defendant offered evidence that A., now deceased, while tenant of the land for years, had declared that he had no such right in respect of the land.--Held : that the declaration was not admissible in evidence, inasmuch as it was in derogation of the title of the reversiouer. [S. C. 24 L. J. Q. B. 289; 1 Jur. N. S. 657; 3 W. K. 490. Principle applied, Howe v. Malkin, 1878, 40 L. T. 196. Distinguished, Blandy-Jenkins v. Dunraven, [1899] 2Ch. 121.] The declaration alleged that defendant chased and harried the sheep of plaintiff, then depasturing and being in and upon a certain waste or common, called The Lower Gras, in the parish of Glasbury, in the county of Brecknock, and drove the sheep off the waste or common. Defendant, in the 1st plea, set up a right of common in the locus in quo, at specified times of the year, for sheep levant and couchant upon certain lands, by virtue of enjoyment by the occupiers thereof for thirty years; in the 2nd plea, a similar right for sixty years; and, in the 3d plea, a right by prescription for time immemorial in a que estate in lands whereof defendant was tenant for life : and in each plea he justified driving the sheep as being, within the specified times, in the locus in quo, depasturing the grass and doing damage, so that defendant could not enjoy the common in so ample a manner as he ought. Replication : 1, 2 and 3, traversing the rights set up by the 1st, 2nd and 3rd pleas respectively. 4. That plaintiff was seized in her demesne as of fee of a messuage and landa: and she prescribed for a right of common for time immemorial, in a que estate, for sheep levant and coucbant during the same specified times of the year, and alleged that the sheep were, within the same time, levant and couchant, and were [167] lawfully put in the locus in quo in exercise of her right of common, till defendant committed the trespasses. 5. A right of common in respect of occupation of certain messuage and lands, and enjoyment of the right by the occupiers for sixty years ; and allegations corresponding to those of the 4th replication, mutatis mutandis. 6. Like the 5th, but stating the enjoyment for thirty years. 444 papendick v. bridgwater 5 el. * bl. wa. Defendant joined issue on the 1st, 2nd and 3rd replications, and took issue on the rights alleged in the 4th, 5th and 6th replications. Pursuant to a Judge's order, the plaintiff delivered a particular, stating that the messuage and lands, in respect of which she claimed right of common, " consist of a farm house, buildings, and 94 acres of land, or thereabouts, of which the plaintiff is the owner and occupier, situate in and near the village of Glasbury in the parish of Glasbury, and called Glasbury Farm." On the trial, before Crompton J., at the last Brecknockshire Assizes, the defendant (by consent) began, and offered evidence to support the right of common alleged by himself, and to impugn that alleged by plaintiff. Among others he called a witness named William Saunders, who stated that he remembered Glasbury Farm being in the occupation of oue Clement Probert, and that he himself had driven Probert's sheep off'the locus in quo; and that, at a subsequent time, in a conversation which took place between him and Probert with reference to that previous driving off', Probert, while tenant, had made certain declarations as to his having or tiot having the right of common in respect of Glasbury Farm. The counsel for the plaintiff' objected to the admission of these [168] declarations, and put in a lease for yeara of Glasbury Farm to Probert, which expired in 1802 : and it was admitted that Probert continued to be tenant from year to year till 1816. Probert had died before the trial. It did not distinctly appear at what time the declarations were made; but it seemed probable that this took place about 1802. The learned Judge rejected the evidence. At a later part of the trial it appeared that in 1802 Probert became tenant also of a farm called Skynlass, and that the occupiers of this latter farm also claimed common in the locus in quo. At the time of the alleged trespass the plaintiff was in possession of Glasbury Farm, the fee having also devolved on her. Verdict for the defendant on the first three issues, and for the plaintiff' on the last three. In last Term H. S. Giffard, for the defendant, obtained a rule Nisi for a new trial, " on the ground that the statements of Clement Probert against his interest, he being dead at the time of the trial, were rejected by the learned Judge." Evans and Davison now shewed cause. The declarations were not offered as accompanying an act, but on the ground that they were the declarations of a deceased person, which declarations would, it was supposed, amount to an admission that he was not entitled to common in respect of the farm which he occupied, and would thus be against his interest at the time of the declarations made. But the declaration of a tenant from year to year in derogation of the right of the reversioner cannot be admitted. It was intimated by Bolland B. in Chambers v. Bernasconi (1 C. & J. 451), and by [169] Littledale J. in Doe dem. Gallop v. Vawles (1 Moo. & K. 261), that the cases sanctioning the admission of the declarations of deceased persons had gone at least far enough. Alderson J. made a similar remark in Stephen v. Gwenap (1 Moo. & K. 121) as to entries by a living witness. In Scholes v. Chadwick (2 Moo. & B. 507), where the question was whether the plaintiff had an easement in the land of the defendant, evidence was offered, in support of the plaintiff's case, of declarations made by a former occupier of defendant's land: it was objected that the...

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