Hanmer v Chance
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1865 |
| Date | 01 January 1865 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 1061
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 34 L. J. Ch. 413; 11 Jur. (N. S.), 397; 12 L. T. 163; 13 W. R. 556. See Duke of Portland v. Hill, 1866, L. R. 2 Eq. 775; Attorney-General for the Isle of Man v. Mylchreest, 1879, 4 App. Cas. 305.
[626] hanmer / . chance. Before the Lord Chancellor Lord Westbury. Feb. 8, 9, March 22, 1865. [S. C. 34 L. J. Ch. 413; 11 Jur. (N. S.), 397; 12 L. T. 163; 13 W. R. 556. See Jfuke of Portland v. Hill, 186G, L. R. 2 Eq. 775; Attorney-General far tlie Isk of Man v. Mylchreest, 1879, 4 App. Gas. 305.] The 1st section of the Prescription Act (2 & 3 Will. 4, c. 71), which relates to profits ft preffulre, applies only to cases where one man claims by custom, prescription or grant some profit or benefit to be taken or enjoyed from or upon the land of anotlier, and has no application to the case of a right claimed by a copyholder in his own tenement according to the custom of the manor. The meaning of the 6th section of the Act is, that no presumption or inference in support of the claim shall be derived from the bare fact of user or enjoyment for less than the prescribed number of years. But where there are other circumstances in addition, the statute does not take away from the fact of enjoyment for a shorter period its natural weight as evidence, so as to preclude a jury from taking it along with other circumstances into consideration as evidence of a grant. Customary rights of copyhold tenants differ from prescriptive rights; the former are usages which apply to a number of persons in a certain district or locality, but prescriptive rights are claimed by one or more person or persons as existing in themselves or their ancestors, or as attached to a particular estate. The law has laid down no rule as to the extent of evidence which is required to establish a custom, or from which the presumption or inference of the fact of a custom may be rightly drawn. It is the province of a jury to draw these conclusions of fact. Circumstances under which the Court sitting as a jury found the existence of a custom in a copyhold manor authorizing the tenants thereof to dig for and get sand, sandstone, gravel and clay from their respective tenements and to cart and carry away the same on to other lands, and to use or sell the same either on or off the the manor without licence from the lord. There must be one rule applicable to ecclesiastical persons as well as to lay when the question is whether rights belonging to them have or have not been lost by negligence. This was an appeal by Messrs. Chance, the principal Defendants, from the grant 1062 HAMMER V. CHANCE 4 DE 0. J. & 8. 627. by the Vice-Chancellor Sir William Page Wood at the hearing of the cause of a perpetual injunction to restrain them from digging, raising or carrying away, or from causing or ordering or consenting to the digging, raising or carrying away by any other persons or person, of any sand from or out of the two closes of land held by them as copyholders of the manor; with ancillary relief. The principal Respondent Sir John Hanmer, whose suit this was, was the owner in fee and lord of the manor of Leighton Buzzard in Bedfordshire, having, as lessee [627] thereof under the dean and canons of Windsor, purchased in 1863 the reversion from the Ecclesiastical Commissioners, in whom, as representing the dean and canons, it had vested. The Appellants were copyholders of the manor, having purchased their tenements in 1842. The facts of the case sufficiently appear from the Lord Chancellor's judgment. the attorney-general (Sir Roundell Palmer), Mr. Giff'ard and Mr. Walford, for the principal Respondent, and Mr. Decimus Sturgis, for Defendants in the same interest as the principal Respondent, in support of the decree in the Court below, relied upon Bailey v. Appleyard (8 Ad. & E. 161). They further contended that the custom alleged by the Appellants was bad; and that the late lords of the manor, being ecclesiastical persons, were not bound to be so vigilant in looking after their rights as laymen. Sir Hugh Cairns and Mr. Sargant, for the Appellants, distinguished Bailey v. Appleyard (8 Ad. & E. 161). They defended the validity of the custom alleged by them ; and further contended that the Appellant while tenant only of the manor was bound to be vigilant in...
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Hart et Al v Peirce
...or number mentioned in this Act as may be applicable to the case and to the nature of the claim.” 25 He cites the case of Hammer v. Chance 46 E.R. 1061 where the Lord Chancellor, Lord Westbury, pointed out in relation to the above section, that where there are circumstances other than the b......