Clarkson v Woodhouse and Another
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1782 |
| Date | 27 November 1782 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 606
IN THE COURT OF KING'S BENCH
Referred to, Wakefield v. Buccleuch, 1867-70, L. R. 4 Eq. 642; L. R. 4 H. L. 377; Bristow v. Cormican, 1878, L. R. 4 H. L. 377.
[189] clarkson . woodhouse and another (a). Wednesday, 27 Nov. 1782. Trespass for breaking and entering three closes in Stalmine. Pleas in justification : 1. A right of common of turbary; 2. Of pasture. Replication, that the closes are parcel of Stalmine Moss, within the manor of Stalmine; that there are divers ancient messuages which have had common of turbary and pasture upon the waste. The replication then stated a custom within the manor of Stalmine, for the owners of Stalmine Moss, by themselves, or their moss-reeves, to assign to the owners of such ancient messuages certain reasonable proportions of the moss-dales, to be by them held in severalty, for the purpose of getting turves ; and after the moss-dales shall have been cleared, the owners of the moss shall hold the same in severalty, discharged from all common of turbary and pasture. The replication then stated the clearing and approvement of the closes accordingly. Rejoinder, traversing the custom, and verdict for the plaintiff. On motion in arrest of judgment it was objected, 1. That the custom was bad, as extending to messuages without the manor; 2. That it was bad, as repugnant to the right claimed in the plea; 3. That it was bad, as not being stated to extend to all the ancient messuages; 4. That it was bad, in stating that " reasonable proportions " were to be assigned. Held, that the custom, as stated in the replication, was good.-Counterparts of old leases from the repository of a lord of a manor are evidence of the demise of the premises, without proof of enjoyment. [Referred to, JFakefieM v. Bucdeuch, 1867-70, L. R. 4 Eq. 642; L. R. 4 H. L. 377 ; Bristow \. Cmmican, 1878, L. R. 4 H. L. 377.] This was an action of trespass for breaking and entering three closes of the plaintiff, lying in Stalmine, in the county of Lancaster. The pleas were, 1. Not guilty ; 2. A justification in right of an ancient messuage in Stalmine, to take turbary for fuel in, upon, and through Stalmine Moss, lying in Stalmine aforesaid; and, 3. A justification in right of an ancient messuage and lands in Stalmine for common of pasture, in, upon, and throughout Stalmine Moss, lying in Stalmine aforesaid, for commonable cattle, levant and couchant. Replication, that the closes in which, &c. are parcel of Stalmine Moss; that Stalmine Moss is within the manor of Stalmine; and that there are divers ancient messuages as well as defendants', which, from time whereof, &c, have bad common of turbary in and upon the said waste or common (except such parts thereof as have been approved and enclosed, in manner hereafter mentioned, after such approvement and enclosure of such parts respectively), to dig and take turves in and upon the said waste or common (except as aforesaid) for their necessary fuel, to be burnt and consumed in their respective messuages, every year, at all times of...
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