Crease v Barrett
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 1353
EXCH. OF PLEAS.
S. C. 5 Tyr. 458; 4 L. J. Ex. 297. See further, 2 Cr. M. & R. 738. Applied, Hobson v. Midland Great Western Railway Company, 1877, Ir R. 11 C. L. 113; Mors-le-Blanch v. Wilson, 1873, L. R. 8 C. P. 238; Carmarthen and Cardigan Railway Company v. Manchester and Mitford Railway Company, ib. 690.
crease v. barrett. Exch. of Pleas. 1835. - An entry by a deceased person charging himself, is admissible against strangers, even though it appears that the facts stated in that entry were not known to him of his own knowledge. - Ancient answers of conventionary tenants of a manor, stating the rights of the lord of the manor, are admissible in evidence even against the freeholders of the manor; but, if they state facts only, e.g. that "the commons of the said manor do belong to the tenants of the said manor unstinted, who have always enjoyed the same under the yearly rent of 33s. 4cl., as by the records thereof remaining with the auditor of the duchy appeareth ; unto which, for the more certainty, we refer ourselves " - they are not admissible in evidence. - Declarations of a. deceased lord of a manor, as to the extent of his rights over the wastes of a manor, are not admissible in evidence ; aliter, if spoken of the extent of the wastes only. - Reputation is admissible in evidence, though unsupported by usage. - A lease of tin mines and toll tin was surrendered in 1810, and another lease taken, on payment of a fine, part of which was a compensation for the surrender of a former lease. A statement in a lease of the surface, made by the same lessor, during the existence of the former lease, is admissible in evidence against the lessee in that second lease of the mines and toll. - Where evidence has been improperly rejected, the Court will grant a new trial, unless with the addition of the rejected evidence a verdict given for the party ottering it would be clearly and manifestly against the weight of evidence. [S. C. 5 Tyr. 458 ; 4 L. J. Ex. 2!)7. See further, 2 Or. M. & R. 738. Applied, Hobson v. Midland Great Western Raihvay Company, 1877, Ir. R. 11 C. L. 113; Mofs-le-Blanch v. Wilson, 1873, L. R. 8 C. P. 238; Carmarthen and Oardiyan Railway Company v. Manchester and. Mitford Railway Company, ib. 690.] This was an action oh the ease. The first count in the declaration was trover for tin and tin ore. The second stated, that, before and at the time of the making of the indenture thereinafter mentioned, his late Majesty, King George the Fourth, then his Royal Highness George Augustus Fre-[920]-derick, was Duke of Cornwall, and as such was seised in fee, in right of his dukedom, of and in all manner of tin in under and belonging to the manor of Tewington, in the county of Cornwall, the said manor being one of the ancient duchy assessionable manors ; that, within that manor there is an ancient immemorial custom, viz. "that any tinner may bound any wastrel lands within the said mauor that are unbounded or void of lawful bounds, and also any several and inclosed land within the said manor that hath l een anciently bounded and assured for wastrel by delivering of toll tin to the lord of the soil before that the hedges were made upon it, and also such and so much of the Prince's several and inclosed customary land within the said manor as hath been anciently bounded with turfs, according to the ancient custom and usage within the said manor, by the said tinner marking out by bounds a certain part of such land within or under which he òwas desirous of working for tin ; and that, after such marking out, the said tinner forthwith gave due notice thereof at the proper stannary court for the said manor ; and that if, after due proclamation thereof at the said court, the owner of the said tin mines within the said manor did not work for tin within or under the said laud Ex. Div. v.- 43* 1354 CREASE V. BARRETT 1 C. M. & R, 921. so marked out by bounds, it thereupon became and was lawful for the said tinner to work for tin within or under the said bounds, paying and rendering therefore to the owner of the said mines a certain dish or part, to wit, one tenth dish or part of the tin that might from time to time be worked, raised, or procured by the said tinner within or under the said bounds, (the said tinner keeping the residue thereof), as and for a toll, for the privilege of working, raising, and procuring the same ;" that, on the 1st August, 1815, his Royal Highness, by indenture, demised to Edward Smith all the toll and farm of tin or tin ore which should be gained, arise, or be due in any place or places whatsoever within Tewington, amongst [921] other manors, and also all the tin mines found or to be found within the several inclosed lands of those manors, to hold for a term of years depending on lives. The plaintiff then deduced title under that lease, and alleged as a breach, that the defendant, claiming to work under and by virtue of the said custom a certain tin mine within the said manor, worked, raised and got therefrom large quantities of tin, tin ore, and tin stuff; and that, although it was the duty of the defendant to pay the toll above mentioned, yet he neglected &c., and wrongfully converted the whole of the tin, tin ore, and tin stuff to his own use. There were several other counts, varying from this in matters immaterial to the present purpose, excepting that in some the toll was laid to be one fifteenth. Plea-General issue. The cause was tried before Lord Lyndhurst, C. B. and a special jury, at Westminster, at the sittings after last Trinity Term. The plaintiff' by this action claimed the toll of tin raised from a vein or mine under a place called Buckler's Bounds, within a piece of ground called Boscundle Common, in the manor of Tewington, in the county of Cornwall. He claimed under the lease from the Duke of Cornwall mentioned in the second count, and contended, that Boscundle Common was parcel of the waste of the manor, arid that therefore the mines within it belonged to the Duke, who had been lord of the manor, until it was sold under the Land Tax Redemption Act, 38 Geo. 3, c. 60, s. 56, &c. with a reservation of the mines. Tewington is one of the seventeen ancient assessionable manors of the duchy of Cornwall, and the nature of the tenures in it was settled in Howe v. Brenton (3 M. & R. 133; 8 B. & C. 737). Boscundle Common contains about 122 statute acres. On the east, it adjoins a piece of anciently inclosed land, called also Boscundle, or Boscundle estate, of about 101 statute acres; on [922] the other three sides, it adjoins the admitted waste of the manor. The defendant was one of several adventurers who were working the mines of that district. They took the mine in question from the Eev. Mr. Carlyon, Sir J. C. Rashleigh, and Mr. Tremayne, as being the owners of the mine. The defendant's case was, that Boscundle Common and estate together composed one free tenement...
To continue reading
Request your trial
-
Weiss v R
...and order a new trial unless upon all the evidence it appeared to the judges that the truth had not been reached11. In 1835, however, Crease v Barrett12, a decision of the Court of Exchequer, was taken as establishing a new rule: the Exchequer rule. The language actually used by Parke B in ......
- Harris v Minister for Public Works (New South Wales) (No 1)
-
Gassy v The Queen
...(2005) 224 CLR 300 at 316 [42]. 51Weiss (2005) 224 CLR 300 at 306–307 [13] referring to Crease v Barrett (1835) 1 Cr M & R 919 at 933 [ 149 ER 1353 at 1359]. 52Weiss (2005) 224 CLR 300 at 316 [41]–[42]. This is a recurring theme in recent decisions of this Court. Recent cases are collected ......
-
John Fairfax Publications Pty Ltd v Gacic
...7 See Walker, The Practice of the Supreme Court of New South Wales at Common Law, 4th ed (1958) at 109-123. 8 (1835) 1 C M & R 919 [ 149 ER 1353]. See Weiss v The Queen (2005) 224 CLR 300 at 306-307 9 (1912) 14 CLR 721 at 728-729. 10 Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963)......