The Sun.
London, England, 1867-06-03 00:00:00

!UMW LYS.

LAW INTELLIGENCE.—This Day.

COURT OF EXCHEQUER.
(Sittings in Banco before the Lord Chief Baron
and Barons Martin, Bramwell, and Channel)
CORBETT V. HOWARD AND OTHERS.
Mr. Cobbett said that the case came before the
court in a peculiar form. There was a demurrer,
and it was not according to form for him to pro-
ceed in arguing it in that shape.
The Lord Chid Baron—There are two points
that are to be argued before us—a demurrer and
motion. We will hear one first and then the other,
or both together.
Mr. Corbett said that he would wish to argue
both.
The Lord Chief Baron—The rule against which
you have to argue on calls upon you to sheli
cause why the declaration should not be set
aside or set out, and upon this the court will bear

you now.
Mr. Cobbett then entered into an argument to
show that by the rules of practice the defendant
had barred himself from the benefit of any rule like
the one obtained.
The Lord Chief Baron interrupted him by stating
to the counsel opposite that they should wish 0
hear the demurrer first. He thought it would he
unfair to dispose of the rule without hearing the,
demurrer first, argued they could then dispose of
the rule, if necessary, and called upon Mr. WN
ab
to let them hear what he had to say in support of
the demurrer.
Mr. M'Nab (with him the Solicitor-General) said
that he would read the declaration, which stated
the defendants had deprived the ratepayers of the
city of London of a right of common and pasture
in a royal forest within 15 miles of London---te
wit, -the forest of Epping, and that 20 acres of it
had been enclosed for purposes contrary to the Act
8 and 9 Victoria, and thereby the ratepayers be'
been deprived of their right of forest and pasture'
He (the learned counsel) contended that no actiell,
would lie, for so far as Mr. Corbett was concerned if
he could maintain such an action so should any ee°
in the metropolis. Another point was that there
was no authority to show that any ratepayer in
London had a right of pasture or common right
at all. Mr. Cobbett had not in any we',/
shown that it affected him at aIl, an
the Waltham forest might bo within
fif-
teen miles of the metropolis, yet neither by the
Act nor by statute was there anything to show tbet
Mr. Cobbett had any right; although he was a rate;
payer within the royal forest, certainly that dill not
give him the title to common pasture. He could
~
not see, especially as the Court had granted in
permission to amend, that the declaration cr“;
stand at all.
The Lord Chief Baron—Now, Mr. Cobbett,
what
do you say?
Mr. Cobbett said that the learned gentleman °l3
the other side had shifted his ground, and now 11
w°n+ll(l a special dettlanttinn
one. Mr. Cobbett then went into- a technical ar-
gument to show that the declaration Was
good. He then said that the learned counsel
had stated that although he might be a rate;
payer within the bounds of the Royal fores
yet have no right of common pasture, but 110
thought that their lordships would see that the,
forest law gave him that right, and he possessed lve
even before the common law was enacted. 112
,er
was nothing even in the pleadings to answer his ue;
claration. It only recorded a simple plea 0f 13;
guilty, and then he was further met by Ass
demurrer, which alleged that the declaration a
void. The learned gentleman had said that he 11,3
not amended the declaration, but their lorelebils
i'it
had given him leave to do so, and he had. It Inig 0
be said that a commoner had a right to pull dera
the fence, and if an action was brought be had
a right to defend it surely by the same rig t.
he had liberty to bring an action like the prese%
The argument supporting his case was, that t"01
land enclosed was part of a royal forest. 17°4
°
time immemorial the ratepayers had had a right id
common pasture, and he could not see how it Nu__
be abolished or abrogated now. An Act of 135r11: s,
went, passed in 1815, for disforesting a certain for an
admitted all the rights that he claimed, and ld
Act, 27th and 28th Viet., confirmed it. lie w°ll tig
call their lordships' attention to the fact that it sr‘er
notorious that actions had been brought to reee/
rights of common pasture, and in all cases baci
been successful. : 0 of
The Lord Chief Baron said that in the opial° a
the Court the declaration was insufficient surt
vague, and, therefore, the judgment of the Ceti
on that point would be for the defendants.