Rigg v the Earl of Lonsdale
| Jurisdiction | England & Wales |
| Judgment Date | 07 February 1857 |
| Date | 07 February 1857 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 1475
IN THE EXCHEQUER CHAMBER
S. C. 26 L. J. Ex. 196; 3 Jur. (N. S) 390, 5 W. R 355. Approved, Blades v. Higgs, 1865, 11 H. L. C. 621; 20 C. B. (N. S) 214 Applied, Reg. v. Townley, 1871, L. R. 1 C. C. 315. Referred to, Lord Frtzhardinge v. Purcell, [1908] 2 Ch. 163.
liioci c. the eakl of lon^dale. Feb 7, 1857 -Bretherdale Bank is a tract of inclosed pasture land within the manor of Bretherdale in the county of Westmoreland Bietheidale Bank had been fiurn time immemorial subject to eighty customary^ ights called cattlegates. The plaintiff was lord of the manor of Bretherdale The defendant was seised of certain cattlegates as a customaiy estate of inheritance. The plaintiff was also owner of a cattlegate which came to his predecessor, as lord of the manor, by seizure quousque for nonpayment of a, fine. Bretherdale Bank i& separated from Bretherdale Waste by a, fence which the cattle-gate owners kept in repaii with stones got from Btetherdale Bank and from the adjoining waste Each cattlegate gave the owner thereof a right of depasturing on Bretherdale Bank a certain number of cattle and sheep from the 26th of May to the 24th of April, but neither cattle nor sheep were allowed to pasture there between 24th of April and the 26th of May An alteration had been made in the time of stinting by substituting the 26th of May foi the 1st of June; but it did not appear that the lord of the manor had any notice of the alteiation, and the court rolls did not contain any mention of stinting The whole of the tattle and sheep depastured Bretherdale Bank in common A futhman was appointed by the cattlegate owners, whose duty it was to take care that Bretherdale Bank was properly stinted, and he was remunerated for his trouble by the cattle owners A cattlegate owner having a house within the manor had also a right to cut peat for consumption in his house. Bv 46 Cleo 3, c Ixiv., authority was given to the lord of the manor to enfranchise any copyhold or customaiy messuages, cottages, lands, tenements, or hereditaments, parcel of the manor ; and several cattlegates weie enfranchised under this Act, but there was no distinction in point of enjoyment between the enfranchised and the customary ( ittlegates From time immemorial the cattlegates had been held of the lord of the manor as customary estates of inheritance by payment of fine certain, rents of small amount being payable annually for each cattlegate, and under dues, iluties, suits, and services of light accustomed On the death of a cattlegate owner, the cattlegate descended bv custom to the heir at law, who was admitted at the loid's court, when he paid a fine. The cattlegates also passed by customary deed followed by admittance at the next lord's couit, 01 out of court by the steward of the manor. The deed was biought into Court by the alienee, and was presented by the jury or homage. A fine was payable on the admittance, but 1476 RIGG V. THE EARL OF LONSDALE 1 H. 4 N-924. there was no heiiot due. On the death of the lord of the manor, the owners of cattlegates could be compelled by the custom to be admitted by the new lord, and to pay a tine. The loid was entitled to seize quousque for nonpayment of fines. Oti alienation by a feme coveit, the woman was examined apart from her husband. The lords of the manor had always searched for, pursued, and killed grouse and other game on Bretherdale Bank, no other person having claimed to do so, or ever having done so except by their license Since 1819 the lords of the manor ha\e preserved the game-In an action by the plaintiff against the defendant for shooting on Bietherdale Bank without the plaintiff's permission. The first count was trespass for entering the plaintiff's close and killing grouse and other game there the second, tiover for grouse of the plaintiff the third, case for the disturbance of the plaintiff's exclusive right of shooting grouse on Bretherdale Bank. The defendant pleaded , first, not guilty, to the whole declaration: secondly, to the first count, that the land was riot the land of the plaintiff: thirdly, to the first count, that the land was defendant's soil and freehold : fourthly, to third count, a traverse of plaintiff's exclusive light as claimed : upon which issues were joined. Proceedings in error having been taken on a special case stating the above facts. Held, in the Exchequer Chamber, first, that the cattlegates gave the owners no right to the possession of the soil, but that the ownership of the soil remained in the lord of the manor, subject to the right of several pasture upon it by the cattlegate owners, and consequently the lord might maintain trespass against a cattlegate owner for spoi ting over it without his permission ; and that on these pleadings the plaintiff was entitled to judgment on the first and second counts.-Secondly, that the facts stated did not warrant a judgment for the plaintiff on the third count. [S. C. 26 L. J. Ex. 196; 3 Jur. (N. S ) 390 , 5 W. B 355. Approved, Blades v. Htgy*, 1865, 11 H. L. C. 621; 20 C. B. (N. S) 214 Applied, Reg. v. Tuwidey, 1871, L. R. 1 C. C. 315. Befened to, Loid Fiizhaidniye v. Put cell, [1908] 2 Ch. 163.] This was a proceeding in error on the judgment of the Court of Exchequer, upon the special case stated for the opinion of that Court in The Eatl of Lon&dale v. -Rigy (see the case, 11 Exch. 654). [924] Grant (Watson with him) argued for the plaintiff in error (the defendant below) in last Trinity Vacation (a) (June 17). First, the owners of the cattlegates have an equal and undivided interest in the soil. It is objected that this is an inconvenient state of things; but the same objection would apply to a tenancy in common, or a joint tenancy, in the pasturage The Inclosure Act, S & 9 Viet c 118, s 113, empowers the commissioners to direct inclosed land to be "converted into and used as a regulated pasture, to be stocked and depastured in common by the persons interested therein, in proportion to their respective rights and interests." The 41 Geo J, c. 109, s. 13, contains a similar provision. Secondly, these rights of cattlegates are not incorporeal hereditaments. That is shewn by the circumstance of their being held by rent service, for there can be no distress to recover rent of incorporeal hereditaments, and yet, until the Statute of Gloucester, 6 Edw. 1, c. 4, distress was the Only means of enforcing payment of rent-service Black. Consideration on Copyholders, p 233 In Coke's Copyholder, sect 30, it is said, " No action of debt will lie for these annual services, no more than for corporal services " Also in Co Lrtt, 144 a., it is said, " Note, that a rent cannot be granted out of a pischary, a common,, an advowson, or such like...
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