Summer Assizes.
The Times, 1824-08-25T00:00:00

". T"!;WRWGAqTmB kf PdNV.'-t h?4. - - , _ , ;i? F, "e""" WI'M404,4- I - --y ut SW VA I,,Sfl,the tep-D ienry SII ;-that. the plOintiff'was 64 a fmeebnress ofrgAei tlwi h'e bld thei4fore no right to .Dasture- his ckttle otr ltl:saai toi1 thlat tile clefendant was a4 freeb jsfas. 'witli li4jf;h b)f ssur-- it' aid thal bhad theqirbre- distrainad the-catte- -of -?e plff w bTb were fbund wandering uponie Thie defehairt-aleG nnA cognizanze under the Duke of Northtlmberland. 'To these,sowrien there were seven pleas .in bar, stating, among variong otbeelfaets whiCh to an unlearned person, appearedito be intod.duced frt ns tother purposes save those of confusion and myeei&ctiop; .th ti: grent of the right of the common WRS made. b tVilliam]e irc t tbCCorporatin of' the.ancient borough ofAlnitmck-t that froist4 earhest tune of memory the corporation hnhd enjo)yr Bnid eecsgd the right of op1sointing a retd to take care of she ceite on the con m,non, arid of altong hltn certain sarts upon it in remuneratin, his ser,ces; t-hat the plaintiff was at present--the herd a i ih b 'rhe'soorporaraon; that he had, in conseegcrce, a right, as tbeir Servant, to depasture a certain number, of cattle tpon th mon that the defendant was no freeman, and that, ev f ir freeman, he possessed no right to distrmin oh -the pLiintifr"s Catt Thedefendant,in his replication, admitted tlie right of the cor at- of Alnwick to appoiat a herd to take care of the cattle tn thcoin mon ;but denied their powerto give him a right ef co,en ouAl wick.moor, to the injury; of the free blugesses. On thisd severaL other points the plaintitt had joined issue with thed ticiars. ant such was the questios the jurv had to try. There as aDn variety of other pleas, replications, rejoinslers, &c_, of witiswe c hot pretend to gire even lhe suhrtlhe; * indeed, -in no case th ever heard were the subtile and mnuldtfario,.s tautologies -of ei pleading exhibited to tbe public in a more abstruse and eon ted MLr. BOUOGHAM, in addressing the jury, told them that he felt extremiely glad upon their account that the statement. wLich he b: d thatday to make to them. bore no proportion either in length orconj; plexity to the volurninous proceedlings of which his learned friend had just read the abstract, and which had rendered it Oecessary to place on the record no less then 67 issues. The questions which they would have to decide lay in a verv narrow compass, and were not so abstruse as the pleadings would naturally leed thein to expeef They were perhaps aware, that in the neighboerhood ofthe losenof Aln wicl was an ancient mnoor of rmore than 3.O00 acres in extent called Alnwick-nmoor or Aydon-forest, a piece of ground which, from its vicinity to tle town of Alilwicki, was- of great couve- nience to its inhabitants. The questions which they were empuneledto trv, related to the cnjoyment of a right of pasturage iapon that rnoor. 11e would assume that all the freemen belosgirig to the corpol-arc* of Alnwick had originallv had a right of common upon it, ebrarse such an assumption would most casiiv accouRt for the origin cf the right which it was his business to eubsiitatiate in thte course of the present trial. Tht jury would see that upon sucn a supposition, there mulst have been at some time or other, at least two or three bundred head! of cattle waidering up and down this moor, which extended three miles in one directiorn, and to less but not inCnji_ derable distuinces in other directions, and which formctly coat'ed partly of underwood, and partly of grass land, witlout anvy son' whatever to take aare of them. In order to provide against the in. convenienees of such a tystem, there had ibeen from time immeo.. rial, a usage of appointing a herdl to take carc of the cattle or the moor, aind that appointment had invariably been made by thost per- sons w.ho formed the corporation of Alnwick-nainely, the four chariberlains, and the fJur.ano'ftr=ny-7.nwe of i he town, who in pmint of faht were the sane officers as the Common Counminen in other corporations. The defendant, he believed, did not deny the right of tihc corporation to appoint a herd. Sonie conversation hiere took place between Mr. SCAR LE2Tr and Mr. BROUGlt As , as to the points which were really to bedisputed in the course of the trial. After a -short discussion, of which we were not ablc to collect the particulars, fromm the distance we were from the learned gentiemen, Mr.B3ROuoGasA proceeded. It not being denied thatthe corpo_ ration of Alnwick liad exercised the right of appointing a herd for many generations past, the real question which thev would have o try would be, whether the plaintiff, as-the herd of the corporation and not as a freeman, had a right to claim pasturage for a stint or more on Alnwick-moor. If lie should succeed in making out that right, he should succeed in every poin, which he wished to carry. Now the extent of the moor, and the right of the free burgesses to de- pasture upon it, were not immaterial to the question which thev had to try; for if the herd were appointed to take care of the cattle, it was only reasonable that he should be paid for his services in some way or ocher; and the best wav of Maving fbr them was in the way in which he conended that the lierd ad been paid for manv genera- tions back-by receiving a right of pasturage upon the comnnon. The burgesses of Alnwick, he ought to tell theia. were of two kinds-re- sislent ancd non-resident; and the tands of the corporation belonged equally to bo.h. If money were taken out of the corporate stock to pay the herd, it would be a linelit confetred on time TsTident at the expense of the non-resident burgesses. Tha was so evident to every reflectng person, tshat it had led to the method of paving hin which had becn adopted as far back as the testinioulr of liv. ing witnesses could go, and as far back as the records. of tlhe corporation couhil be traced-namely, the allowving 1im, even though he was no: a freeman, to depasture two or more heads of cattle upon the moor, as circumstances required. In the mu. niments of the corporation the word rtint was nsed to describe the number of cattle he should turni upon the nmoor. Now a horse was a stint; so also was a cow; but if the stint werc to be taken insheep, then five sheep formied it. Tne herd had in gencrai we stints al- lowed Ihim, but sometimes more; and was appointed every one,two, or three years, by the corpora-ion. It was very material for them to consider that that corporation had always enjo3ed the power of letting stipts tostrangers,.whomiad iothing ilo do with the toy'n, be- caune it was evident that if they had enioyed so extensive a power, th.ey must also have enjoyed the lesser power of letting out a part of tt to their own servant. HJe would prove by mostundeniable evidence that they had exercised that power; lie s'Eeuld also prove, by, reference to the books of the corporation, the orders which lhad beer made fr1m tine to time fur the appointment of the herd&, end forthe mode of remunierating them for their services. They woulci find, on inspecting those books. that though the herd had sonmetiunes re- ceived a small s unt of m oney, hie had always received some pasturace, sometimes Imore. ansi sometinles lees. Ii e would also call witnesses (one ot whom was an old mall of 87) who would tell them of the regulations whicih prevailed upon the mloor in lLkeir tiMe. and would inorsm them that itle herd, when ice was not a freeman, always received a ecrtain number of stints, and wheri hit wa: a treemian, reccived an additional nulbelir more upon that account. If lie itadle thtese points oat to theirsatiefaction, lhis chietit wou.ld be entitded to a verdict. Several witnciseseiwercthen cedlied.-The first witness, llir. Ra- kerby, proved that the corporation of Alwnwick paid the expenses of rthis action, andi that be attended by ttheir onler to ruuduce any books and miianiltients which might be wanted in the causc. lhe other witnesses were priutci,paliv old men, who deposec that they recollectedi the mnoor from their infacvcy.that the herds. who were soietimes frener,me and snmetimes riot. had been always al- lowed stilts on the moor, and thnt they had never heard anv objec- tLion made so such a practic till lately. The freemen at presenlt hlad eac h a right to four stints or, the monr; fbrnmerly they Itad had a right to live: liat number was found to be too great, nnd had case- qEsently been relucedl. The nuuber ot stints allowed to tbh herds were foend to vary froll1 4 to Ck One heldc(, 5hi had becn allowedl to pasture twvo cows, a galloway, and twenty sheep on the common, haa ernnloyed on- of the witnesses ,.s his servant-he had given hitm 31. IVs. fr'wflgs, and hadl allowed him, by a species of subfeu dation, to lltasture ten hlcmp on the moor. on eross-axsaar.ion, it was extracted fron themi that the corporation had built a house for the herd on the msoor, vlfich wvas still stanrding-that they lhad bren in- volved in a lawvsuit wils the Earl and Coumitess of NoTthumberland ,about it more tilan fi s ears a ;o-that therc h lr bo.r nmore tt ia! oxie di,lpute between tce corporation and rite illustrious l:ouse of P, rrr about tbe royalties at,ached to this nioorrthat dhci corporation ltad granted leave to a clergyl-lan of she name of Romicey to turn ilis beasmt upon rite noor-that he had turned thecl on til the l freemen tiad objected to it-aTid that the held li d brouitt Itis action in nte (ounty Coart against a freenian for his fees, bitt had failed in reco- vening them. T!-e books of the corporation wcre then pllt ill evidence, and sc- veral appointrcicnus of herds, fromn the year 14(10 to the psesens tine, - made by the four rinlaTi berlains, anti fotir-and.twenty-nten, were read to the iury. In every case a right of pasturame was granted to the herd ; in some, motey alro. There was one entrv in the books, Whlereby tie cortlpontion threatened tn disfranclcise certain free bur- gesses, whio liad failed to ptay the herd's fee, in case it sere nOt paid by a specified day. lUr. SiCARLaTT then ro.se to address thc jury for the defendant. After coMplaining of thc comtplicated stateulent which had been PlaCed on the record ill this action, andi after contending tbht bis client It-d bee', compelled by the various tnd con,radictory aver. ile.nts of the plaintiff, to accumiulate pleading upon pleading, in order to prevent 'is own interests frorm being endangcred, be pnov ceeded to infborm thc jury, that the sbstantial question L be tle iWWvaS ttus-wecre the corporation of Alnwick, supposing them to be a^or- poration, on wvhich be lad a few cbservations to offer in the coursc of his sipecch, entitled to give to their herd who was not a freeman a rtgh;t fa:.turage Upon tiUs ancitcnt Ulor in Avdon-fores ? To try that sintlple qutsdon, the plaintirf had originalh5 tbrmed 67 issues, btt had been ulthnately obliged to confine them to'the single poiat which hlad been smated itt tltc defendant's replication. He - must now tell titemn bow thjs action had origgiated. Thiedefendant in it was a freeann of Altwick, and as such clainied a right of connor. upon Alnwick- ilmoor. The corporation claimed - righit to appoint a herd to taLe care of the rtile upon that moor; and that right his client didpot -t present intend to dispute. The, claintie, however, a rtItr,- oower-namely, that of givir g a rigILt of cosimon to tlerd; and ttat, too, te any reasonable extent. Thedefenda tohrnit-tre(l the gift of this right of comnon to be an mhent on htis own rights an tIosC of his brother burgesss thc--efore iistrained ont the herd's cattle for the purpose of disputiag it, and the result of thztt mieasure had been the c a-nonet1entofrhe present actio. No'o,v he must, say, that tite grounds of it, as stated by the plaintiff; were ttot of a very ordinary nature. A right of conirnoti h)elonging to the corporation was -he nrescrsetion set up for T-IRg a tEue to right of comnoon to a rca,0a.ob.ke exteL to the herd. lie had never heard'of' such a thing before in law. He wonid more- over say, thAt the evidence given on behalf of the plaintiff had failed to establish n right of common in the corporation. That evidance, if it atr.hlished any thing, established tbeir riglht t;) the-soil, and it was clear law that a man could not have a right of conmnnon in his own soil. The plaintiff"s evidence proved, thlat they had lenel paA- turage of sixteen stints to orc nean, gnd of four to another; tl?at they had granted part of the inoorto the hierd, which hc baa e;tlos. ed by tlerigrders, and on which they had afterwrrds built hiru a house; that they had fuirther grmite-l'hint leatve fo ttkc hay ofl an8 other poitior. of thermoor. and, whtat was tuore material to the consi_ deration of tle jurv, had allowed him even to levy a sum of mnoney frontl the freemen tor every lheasd of cattle that they sent upon the. mnor. The inere right 6f cornmon coula never have given them stch riglits as ther had exercised. The exercise of those rights be- longed to the right of so.l; and a rigwht of common did not give.a r2ght of soi.2. If, then the corporation of AInwick had il. legally uaurped the right ol goil for rnasny Years, a he contended that they had, aothing wlhich they had do:ie 'uu' dee it conid tetid to establi.h their Litle to a rigit of co'm._ mono. Tlhe usage upon which the piaintif's right of' action iestecl wan founded uIn usurpation, and the corporation-of Alntvick vere well equuinted witht that poiit now, though stmne Vears ago they thoiught that they really possessed thepower which they had usurptl and itadacted accordingly. He was of opinion,.thatli WsX 2rwi from hi- ltadraed friend's owil bViderfnce th.st .tlere wns aMt ncd 5o -bi learned friend's cane; but in order to render c;ertainty douyilv- sett he would now show bv evidence of tisowain, that thae -orporation o0' Altmtiek, as they calsd themaselves, had not even a leg to statu4 ei1oribilE?' Scrsil 1ved, , J'ne te. oe , ta 85 U,ZI b bd b-c EaWir1sr as-thoupch -th;y,vey, reeptbi#fors ol es WS stoOe teeqishw flwi5.they teet hMtlier:tattlL utbn ii Now hq wi6 is%in a st~tt~t E`corvbfi~sio ulot adaisition to, i h. .n . Ii alii As bt4ktua`~t,o ff 1i., tIrj he,pleases and hcwhoean -refuseadtnissidn P iliust at 1ea-tt con:c~lvethlniself to'be~thd owner' of' L~ It uLs uct however, by mere inference that he ittn?ied idt show 'that earporatiors hac acted aS if they were proprietors of the soil; he wOu'ld5now by direct cidence-.by an indenture undei. their common ttenl~tht t he had actualy exercfsed the power belonging only te the 21~ht f ut, rand 'm so doinm had enctoached on the rights of the harn of Nordahumberland, who wras lord of the manin', end also uPoL those of the free bureesses of Almnick. cS-^ 178 the f,our chaunberlains, and four-and-twenty men of Alii r had* dete7.rm!ned to disfranchise certain freernen, and to let aS .I of this oor out to strangers. So determsined a measure adet neessy for the lord of the manor to interfere. Some law ptOCeer, 1ng Were in consequence instituted, which were, however, Ct5T5iOae be an indenture mnade in l162, between the Eall and ^7X r sorthmnberland on the one part, and the corporation of A r on the other part. From the reital in that inden:aue, it - tat in the year 1756 the corporation had brought actions moan ,sethdeharl s; tgents for dtligin for lime anl stoneupon the com. tiont vaI had filedrL bill in Chanrcerv, in order to obtain an injunc- ht Btireent them from doinz so in fiiture. Why had they taken arch mstrong muress ,f theyviid not think themselves masters of the sedi? And if they had committed certain acts of mastership whilst they thn,a*ht anti acted as masters of the soil, were those acts of ton to be considered as proofs of thrir title to the right of hi I rtat?a If they were not, what became of the evidence ofrered by hid larnea friend-that the corporation hlad once let out 16 stints at a tize ta the he*rd wbom they liad appointed ? The iadenture of 17.'- which wAs intended to put an end to all litigation between the cOsPohation and the Percy family, wtho were lords of the manor in which Alnvck-moor antI Aydon-forest were situate, clearly defined the ?hs of both parties upon it. In that indenture there was no sernon ef the rigXt of the corporation to give their herd a right of common; and from the silence of the indenture upon that poist, he thought that- he had a righit to infer that upon that document also here was an end tO his learned friend's case. He itiust now say a few words with regard to the corporation of Alnwick. First of all hc mtu observe, that tlhi wask a corporation without a ch'tes-t. Next he must observe, that it was difficult to make OOt that was the title of this cnrooration, whiich clai'ned by prescrption a right of common on Aln?wick-moor. In somne deeds they were styled the burgesses of Ainwick; in others, the fee burgerses of Alnrwick in others, the chainberlains and buTgres of Alrwick and again, in others, the four chan- berlains, and four-arndtwenty men of Alnwick, with various other appellalionrs A corporation that prescribed must have -ome title by which to prescribe. Bv what title did this corpo. ratison c oose to stand ? The first time ihat they were found men- rtioneit as acorporation was in a grant made to them In the 42d year nf Henry VI. In all former grants, if a corporation they were, they -ere mnerely entitled the burgesses of -Alinwick. The first grsnt mnade to them was bv William de Vesci, in the tine of Hcnry II, arid before the date of legal memnory. In that grant, supposing the corpration Was meant, they were only styledl the burgesses of Atnwirk. So, too' in a grant mxsade by the son and grandson of Wil- iasinde %'csci,in confirmation ofthe grant oftheir ancestor. All these ranesr` should produce an put in evidence; thelastof them was datc, the rear 1290. The learned counsel here read one of them in English. roret which it appe ared, that William de Vescn granted to his burgesses of Alnwick the same rights and privileges which the King of England had gratited to his burgesses at Newcastle, to- aws-her wih ringht of pastiarage on Aysdon.moor. The plaintiff, in his pleadings, fd called upon himn to prove that William de Vesei -was reezed in fee at the timne he made this grant; no doabt he thought that there w;ould be no slight difficulty In establishiing that point; b=t, f!ortunately ffr the tfentlant, VWilliam de Vesci, on mak- ing that grant, had rLeserved in it ta hinself, as lord of the mnanor, an annual payment of 2s.-a payment which had becn regu- larly made by the burgesses to the lord from that (lay down to the Prerent, and was even now regularly demanded from them. That would bc sufficient proof that WVilliam de Vesci was seized in te' of the maror of Alnrick. He contended, however, that from these psauts of the Dc V'cscis the right of common on Alnwick-moor was niot vested in the cnrporation of the town, but was extended to all the burgesses of it. The corporation, as guardians of the rights of the burgesses, might be entitled to appoint a herd to look after their .- but they bad no power to abridge the rights of the burgesses b' gir-ing him a right of pastitre upon it. They had estates out of which they could easily pay him a salary, and he thought that the produce of those estates would be better ex- pcnded upon such an object, than upon unnecessary and unavail- 11 litigation. Ile woutd likewise show by reference to an entry in mte books of the corporation itself, dated 31st of Alay, 1613, that the chaeTberlains and four-and-twenty men of Alnwick had formerly been of opinion that no cattle should be kept on the rnoo by the herd, or otherwise, except they belontied to the busr- ve.ses of Alniwick. The !earned counsel, after reading the order, Proceeded to argue, that supposing the right of common to be in the cr-portion, they had no power to grant it to a stranger; that there. fi-w the plaintiff's cattle had no right upon the common; and that crnsecqutcry he could not sustain the present action. The three grants of the De Vescis were then put in. They were not read, but wrere takeen ac read, as was also a rsant made to the corporation of Alnwick in the time of Henrv VI., the orderof the f,ur and t7enty men, dated 31st of May, 1613, which hMr. Scarlett had read in his speech, anti also the inaenture of 1762, between the Earl and Countess of Nortliumberland nnd the Corporation of Aln 1wick. Mr. SCAR,LETT asked Mlr. Brougham if he would admit the pay- merit of 2s. a vear to the lord of the maner made in consequence of the grant of Wtilliam de Vesci. Mlr. BRouGeHAae replied that he would, from the great respect he felt to the antiquity of Ilr. Villiam de Vesci. AP Mr. BaotrTsGRAt was rising to reply, Mr. Justice BA-VLEe, who in the course of Mir. Scarlett's speech had freq ently expressed his dissent from the legal construction which Tr. S-arlett had put upon some of the deeds which he had qtioted, observed, that it was quite clear to him that the corporation bed no authorty to grant a right of common to strangers; but he did not lonk upon the herd as a stranger. The herd was emplovedl tn look after the cattle of the burgesses by the corporation, to whom the right of comrion had been granted for the benefit of the bur- Leascs t large. The corporation had therefore to remunerate him for his senrices, either in money or in saone other way. It was p--wed, that fron, time immemorial, the usage had been to give him - asturmgc for .so nianv stints, and lie did not see that any valid ob- iretion had been raised to titat usage. Somer discus%ion took place upon this declaration between the Urrted counsel employed In the catise. As all the facts necessary r the forniation nf an opinion by a superior Cotirt had been esta- l.shod in evidence, and as certain Points of law had arisen in the imrse of it, on which the learned dounsel had determlined to take he opinion of the Court of Common Pleas, froni which the process lenco, and into which it was observed that none of the Counsel en. zed in the catise could followv it, it was at last agreed that the Jury hould find a verdict for the plaintiff, with four guineas damages; La that thev should also find on one of the issues that a righit of :mon for two stints for each hiercl (thece are now three) was a i ofcommon to a reasonable extcnt, and suchi ahs thc corporation tght grant to themi in frture. SUM-lfER ASSIZER; --l' 'l-.. I ? - I., .., ,;: .. I