Wake v Conyers

wake v. conyers. 16th June 1759. [S. C. 1 Wh. & T. L. C. (7th Ed.) 170; see Marquess of Bute v. Glamorgan Coal Co., 1845, 1 Ph. 684; Att.-Gen. v. Stephens, 1855, IK. & J. 742 ; Searle v. Cooke, 1890, 43 Ch. D. 526.] Bill to ascertain the boundaries of two manors dismissed, there being no dispute as to the soil.-S. C. 2 Cox, 360, Hill's MSS. The defendants, John Gonyers, Esq., as tenant for life, his wife, Lady Henrietta, as entitled after his death to her jointure, and his son an infant, as tenant in tail, were entitled to the manor of Epping, and also to the freehold of certain lands next adjoining to it, lying in the manor of Waltham; the boundary lines of the two manors passing through Mr. Conyers's park. He had cut down certain trees, which, it was alleged by the bill, were standing on the line, and were boundary marks. The present bill was filed by Sir 'William Wake as prochein amy to his three infant sons, who were tenants in tail successively of the manor of Waltham, praying that the boundary of the manor of Waltham, so far as the same abuts on the manor of Epping, might be fixed and set out, and that a commission might issue for that purpose, and that the defendant John Conyers might set up new boundary marks in the room of those which he had cut down and destroyed. Mr. Conyers by his answer admitted the cutting down [332] of certain trees, but denied that they were the boundary marks, though he submitted to have the boundaries ascertained and settled, and that marks might be set up to perpetuate such boundaries. On the opening the Lord Keeper objected to the nature of the suit, as being merely to settle the boundaries of the manor: he said he did not think the court had jurisdiction, and desired it to stand over for counsel to consider whether there was sufficient equity for the court to entertain the bill. It came on again this day. The Attorney-General, Mr. Wilbraham, and Mr. Browning, for the plaintiffs. This is not merely a bill of peace; though, as far as the jurisdiction of this court is concerned, it is usual and proper to establish peace and good neighbourhood. But it is a case peculiarly coming under the most favourable jurisdiction of this court; which is to give, a remedy where there is none at law. The law is defective. The boundary cannot be set out. It can only be tried by actions of trespass or ejectment, which can do no more than settle the local trespasses; while a boundary line extending a mile or two may be disputed inch by inch. There is no objection to this bill, as being merely a bill to settle boundaries. Bills 1 EDEN, 333. WAKE V. CONYERS 713 to settle boundaries have" been entertained in this coupt from very ancient times, Tothill, 126, 127; so early as the reign of James the 1st. Ib. 84, 210. Bowman v. Teat, cit. 1 Ch. Ca. 146 : there was a rent-charge, and the grantee did not know where to distrain on account of the confusion of boundaries ; a commission was ordered. So Harding v. Countess of Suffolk, Rep. Can. 63. Cocks v. Foley, 1 Vern. 359. In the case of the Duke of Dorset v. Serj. Girdler, Free. Can. 531, a demurrer to a bill to perpetuate testimony on the ground of a menace being used to disturb plaintiff in sole fishery overruled, and on [333] this ground, because he could not proceed at law. So in this case what is prayed by the bill cannot be done &t law. The defendant has destroyed the last remaining boundary marks, and by his answer consents that they may be set out. The only difference between this and the common case is, that there is no dispute about the soil, which is confessedly Mr. Conyers's, and it may be asked upon that, cui bono to fix the line ? The answer to that is the manorial rights : a manor has a seignory : lands escheat: the lord has a right to treasure-trove, to deodands, to the game. The only difference then is the value. In 100 years' time the boundaries will be confounded and lost...