[List-Cumbria] Carlisle Journal, 05 Feb 1814 - Law - BERWICK v. MATTHEWS

[Petra Mitchinson]

Saturday 05 Feb 1814   (p. 4, col. 4)

 

COURT OF COMMON PLEAS, JANUARY 28. 

  

BERWICK v. MATTHEWS. 

 

This was action brought by the Plaintiff, to recover his share in the inclosure of Westwick common, in the county of Cumberland, and
which he claimed in behalf of his common right upon the same waste. It was, with other actions of the same nature, tried before
Baron WOOD at the last Assizes for that county, and a verdict was found for the Plaintiff, subject to a point of law, which the
Learned Judge reserved for the consideration of the Court. 

 

The Solicitor-General had obtained a rule to shew cause why the verdict should not be set aside, and a nonsuit entered: and
accordingly the point reserved was argued this day by Serjeant RUFFE, for the Plaintiff, and the Solicitor-General and Serjeant
PELL, for the Defendant. The facts appeared to be these:-There are two manors in Cumberland, named Wigton and Westwick, which belong
to the same Lord, the present Lord Egremont. The Plaintiff is a customary tenant, and enjoyed a right of common in each of these
manors, for an estate called Bushgill. In 1811, an Act of Parliament passed for the inclosure of Wigton common, and another for the
inclosure of Westwick. The commissioner for Wigton allotted to the Plaintiff his share of that common, but in the inclosure of
Westwick common he was refused, on the ground that his common right there had been already compensated by the allotment which was
given him in Wigton. 

 

On the part of the Plaintiff, it was generally contended, that having a separate right of common in both manors, the allotment in
one could be no compensation for his right in the other. On the part of the Defendant, it was first contended that the Plaintiff had
received more than his proportion of common of Wigton, and it was allotted to him as a compensation for the right he held in
Westwick.-(The Court here observed, that under the Act of Parliament no such allotment could be made by the commissioners.)-The next
point contended was, that a great distinction prevailed between these manors being under one or different lords. In the latter case,
it was admitted that he might have claimed for both, but being under the same lord, the law was completely otherwise; and it was
further insisted that the Plaintiff could claim common right, in this case, only for cattle levant and couchant upon the Bushgill
estate; and having received share on the Wigton common for all cattle which were levant and couchant upon the estate, the levancy
and couchancy were fully satisfied for both. This was particularly the case, because the manors were under the same lord; for
suppose the lord, before the inclosure, had been inclined to approve, he might, as far as regarded the Plaintiff, have approved or
inclosed the whole of Westwick common, provided he had left sufficient common on Wigton for all the Plaintiff's cattle, which were
levant and couchant upon the Bushgill estate; and, in support of this doctrine, they cited BROOK, Tit. Common. Placitum 52. which
states, that a tenant having right of common in three vills for cattle, levant and couching upon an estate in one vill, the lord may
approve the whole of one vill, leaving sufficient common for the tenant in the other. 

 

Justice HEATH observed, that the two manors being under the same or different lords could make no distinction, as to the right of
the common on each. The inclosure of Wigton could not include any right which the same person might have upon the common of
Westwick. He did not think necessary to go it into the argument of the last point, for he was clearly of opinion, that the verdict
ought to stand. 

 

Justice CHAMBRE said, the lord's right to approving could not alter the claim which a tenant may have to common right in two manors.
He was clearly of opinion, that the verdict ought not to be set aside. 

 

Mr. Justice DALLAS remarked, it was not the fact, as the case stood upon record, that the allotment in one manor was in proportion
to the Plaintiff's right in both. He concurred with his learned brothers on the bench, that the manors being under one or two lords
could make no difference in the law of the case. 

 

The application made on the part of the Defendant was, consequently, set aside, and the verdict ordered to stand. 

 

 

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