Cornwell, Appellant, Sanders, Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1862 |
| Date | 19 November 1862 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 78
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 32 L. J. M. C. 6; 7 L. T. 356; 9 Jur. N. S. 540; 11 W. R. 87. Adopted, Watkins v. Major, 1875, L. R. 10 C. P. 666.
cornwell, Appellant, sanders, Respondent. Wednesday, November 19tb, 1862. -Trespass in search of game. Jurisdiction of justices. Title. 1 & 2 W. 4, c. 32, s. 30. Appeal. 20 & 21 Viet. c. 43.-Upon an information under stat. 1 & 2 W. 4, c. 32, s. 30, for a trespass in search of game on land in the occupation of the lord of the manor, the defendant asserted that the land was not, as alleged by the informant, common or waste land within the manor, but was land vested in the inhabitant householders of certain parishes uuder an inclosure aw$rd, and claimed a prescriptive right to kill game on the land, but did not shew that he was an inhabitant householder of either of those parishes. The justices convicted the defendant; and in a ease, stated under stat. 20 & 21 Viet. c. 43, set out the evidence upon which they decided that the land was waste or common of the manor, and found that the defendant had no ground for believing that he had the right of shooting over it. By stat. 1 & 2 W. 4, c. 32, s. 30, it is provided, "That any person charged with any such trespass shall be at liberty to prove, by way of defence, any matter which would have been a defence to an action at law for such trespass." Held,-1. That the jurisdiction of the justices was not ousted by the claim of a prescriptive right in gross to kill game on the land, there being 3 B. & 8. 207. COKNWELL V. SANDERS 79 no colour for such a claim.-2. Nor by the assertion that the land was not in the occupation of the lord of the manor, but was vested in other persons, aa the claim of title to oust the jurisdiction of the justices must be a claim of title in the party charged, and not in a third person.-3. Held by Cockburn C.J., Blackburn and Mellor JJ., that, there being evidence before the justices of the land being in the occupation of the lord of the manor, this Court ought not to review their decision. But, by Wightman J., that, the evidence being set out, this Court might review their decision and reverse it, if it appeared that they had come to a wrong conclusion. [S. C. 32 L. J. M. C. 6 ; 7 L. T. 356; 9 Jur. N. S. 540 ; 11 W. R. 87. Adopted, Watkins v. Major, 1875, L. R. 10 C. P. 666.] Case stated by justices, under stat. 20 & 21 Viet. c. 43. A6 a Petty Sessions, held at Botbisham, in the county of Cambridge, the appellant appeared to answer an infor-[207]-rnation charging that he unlawfully committed a trespass by being, in the day time, upon a certain piece of land in the occupation of Clement Francis, Esq., lord of the manor of Stow-cum Quy, in search of game there, without the license or consent of the lord of the manor, or of any person having the right of killing game upon such land, or of any other person having any right to authorize him to enter or be upon the said land for the purpose aforesaid, contrary to stat. I & 2 W. 4, c. 32, e. 30. The case set out the evidence given before the justices in support of the information, from which it appeared, among other things, that Clement Francis was lord of the manor of Stow-cum-Quy; that, by reputation, the bounds of the manor and the parish ef Stow-cum-Quy were conterminous and co-extenaive ; and parol evidence was given that the place where the appellant was alleged to be trespassing iu search of game, which iwas a part of the pariah called Quy Fen, was within the manor of Stow-cum Quy. Quy Fen is not commonable for cattle, but only for digging turf and cutting stover ; and every householder in the parishes of Stow-cum-Quy, Fen Ditton and Horningsea has a right of digging turf and cutting stover in Quy Fen. It was uot shewn thai the appellant was the occupier of a house in either of those parishes. An inclosure award, made by Commissioners under an Act of Parliament passed for inclosing the parish of Stow-cum-Quy, and dated the 3d November, 1840, with a plan of the parish thereto annexed, was put in evidence on behalf of the respondent. In that plan the piece of land mentioned in the information was marked No. 56, and in the schedule to the award it was described as follows :- [208] Proprietors. Number on plan. Description. Culture. Quantity. Quy Fen, Ditton and Homingsea Parishes. 56 Common Fen. Pasture. 68 0 35 On behalf of the appellant three points were submitted : Fifst. That, assuming Clement Francis to be the lord of the manor of Stow-cum-Quy, and the land numbered 56 on the plan to be within the bounds of the manor, there was no evidence to shew that such land was a waste or common within the 1 & 2 W. 4, e. 32, as. 10 & 30, such land being vested in the inhabitant householders of the several parishes of Stow-cum-Quy, Fen Ditton and Horningsea, and not in Clement Francis, as lord of the manor, and that, according to The Grand Union Canal Company v. Adiby (6 H. & N. 394), the right of soil not being iu the lord of the manor, the Act of Parliament did not give him the game, or make him legal occupier. Secondly. That the appellant had a prescriptive right of sporting over the land numbered 56, Thirdly. That the justices had no jurisdiction, there being a bona fide question of title at issue. ; In support of the first point, the appellant relied upon the award, the schedule to which described the land in question as an old inclosure, and the proprietors as being the three parishes named : and evidence was given that the appellant had shot in Quy 80 CORNWELL V. SANDERS 3B.&S. 209. Fen for aboub forty years with the witnesses who were called ; but before the inelosure snipes only were found there. The justices determined that Clement Francis was lord of the manor of Stow-cum-Quy; that the land numbered 56 on the plan, and in the evidence called Quy [209] Fen and Common Fen, was a waste or common within such manor, and that such land was not vested in the inhabitant householders of the several parishes of Stow-cum-Quy, Fen Ditton and Horningsea, but that the lord of the manor was the legal occupier thereof within the meaning of the 1 & 2 W. 4, c. 32, s. 30; that the appellant had not proved that he had a prescriptive or any other right of sporting over the land numbered 56, and that the appellant had not any ground for believing that he had any such right; and they found that the appellant was guilty of the offence charged in the information. The case concluded with stating that the justices, in accordance with the application of the appellant, had set forth their determination, and the facts and grounds thereof. Welsby, for the respondent, was not present when the ease was called on. O'Malley (Phear with him), for the appellant.-The justices had not jurisdiction to convict the appellant, as a bona fide claim of title was made before them. By Beet. 10 of stat. 1 & 2 W. 4, c. 32, the lord of the manor has the right of killing game upon the wastes or commons within the manor; and, by the proviso to sect. 30, he is to be deemed to be the legal occupier of the land of such wastes or commons. The land in question was described in the information as in the occupation of C. Francis, the lord of the manor; and he attempted to shew before the justices that it was part of the wastes or commons of the manor, and that therefore he had the right of killing the game on it. That was [210] disputed by the appellant on the ground that sect. 10, according to the decision in The Grand Union Canal Company v. AsJiby (6 H. & N. 394), conferred the right of killing game on the lord of the manor in the lord's wastes only, and not in common fields over which other persons had rights in severalty. [Cock-burn C.J. The proviso in sect. 30 says that the lord of the manor shall be deemed to be the legal occupier of the wastes or commons " within such manor," not " of such manor."] The justices find that the appellant had no ground for believing that he had any right of shooting over the land in question; but they do not find that his claim was not made bon£ fide. In Eeg. v. Cridland (7 E. & B. 853) there was a strong intimation of opinion by all the Judges that, if a claim of title was bona fide set up, the justices would have no jurisdiction to proceed farther. The appellant set up two defences to the information ; first, that the land in question was land belonging to...
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