Watford Observer - 18th June 1870
A Watford Observer report on the court case between George Banting and George Stone. Both gentlemen would have been well known at the time and the size of the column inches given to the court report would indicate this.
THE COMMONABLE RIGHTS AT COMMON MOOR
G BANTING v G. STONE
G BANTING v G. STONE
This was a case heard at the Watford County Court on Friday last, before J. Whigham., Esq., Q.C., Judge. It excited a great deal of interest. The plaintiff sued by the recovery of a horse that he had turned out upon Common Moor, Rickmansworth, which was impounded by the commoners and afterward sold. Mr. Codd, instructed by Mr. Camp, appeared for the plaintiff; Mr. Lumley Smith, instructed by Mr. J. Sedgwick, for the defendant.
Mr. Codd said that so far as the plaintiff was concerned the case was a very simple one. The plaintiff kept beerhouse at Croxley Green, which he built upon a plot of land he bought of the British Land Company. The land had formed part of Ansell’s farm. The occupier of Ansell's farm had the right to turn out cattle on Common Moor, and by right of that the plaintiff put his horse there. On the 5th May, the plaintiff's horse being on the common, was taken by the defendant and impounded. The horse was sold on the 17th of May for £28 10s., to recover which the action was brought. Since the action was brought the compensation for the horse had been offered, but the action was for the detention of the horse. No doubt the proper course would have been for the plaintiff to replevy, but be wished to state this as a proposition of law. There was a colour of right in putting the horse upon the common and therefore the commoners had no right to distrain. Ansell had the large portion of land to which the common was incident. The British Land Company let it out in lots, and the plaintiff, the owner of one of these lots in virtue of the right attached to the farm, claimed a right of common. If the defendant did not manually take the horse, he was a party to it, and having stated that, he apprehended that the onus lay upon the defendant of justifying his act. It lay with the defendant to show what right or colour of right he had in taking the horse. He called - The plaintiff, who stated: I am the owner of a plot of ground and a house at Croxley Green. I purchased the land of the British Land Company on the 25th of August, 1866. (The conveyance was put in, between the British Land Company (limited), on the one part, and the plaintiff on the other part. From this, it appeared that the land, which is freehold, was sold to the plaintiff for the sum of £30. that it adjoins Croxley Green Road and has a frontage to it, and that it measures 65 feet by 90 feet.) I built a house on this land. On the 5th May I had a horse, which I turned out on the common called Common Moor. I had been is the habit of turning out this horse for about three weeks. On the 5th of May I went to the moor to fetch my horse as I wanted it to go to work. When I got there, I saw Mr. Stone, the defendant, directing another man who led the horse away. They took it to the pound at Croxley Green. I fed the horse after the first two feeds while it was in the pound. The horse was sold in the market at Watford on the 17th of May an I fetched £18 10s. I have received none of the proceeds of the sale. I have seen other horses on the common before the 5th of May. I do not know who they belong to. I have a large garden attached to my house.
Cross-examined I keep a beershop. It is built on the piece of land I bought under the conveyance produced. I have two stables, one close to the house and one detached, and a pigsty. There is also a shop and four rooms on the ground floor. I had had the horse in question about a month or six weeks before the 5th of May. I bought it of a gentleman named Roberts, of Heronsgate. I was to give £10 for it. I did not pay Mr. Roberts all that money at the time. When the horse was being led to the pound I did not say "This horse belongs to a gentleman;" but I said "That's a gentleman's horse." I have not yet paid Mr. Roberts anything for the horse. Mr. Roberts has the memorandum of the sale of the horse signed by me. I will swear that he has a writing signed by me. Mr. Roberts did not send the horse to be put upon the Moor. I have taken the horse on to the Moor myself and it has been taken by others. It has been fetched away from the common when wanted. I had its shoes taken off and put on again. I do not know how many times I had the home away from the common.
By the Judge: The shoes were not taken off when it was first put on the Moor.
Cross-examination continued: I did not have warning that the horse would be distrained. Mr. Austin never gave me warning that the horse had no business on the Moor. I saw Chance, the herdsman, and a man named Ovington there. I took no notice of them. They did not tell me to take my horse away and let them have no bother about it. I will swear that I never had any notice from either of them. I did not bid for the horse when it was sold, neither did anyone bid in my behalf. I did not run it up. I have seen more than two mares and two foals upon the Moor. I was going down the towing path when I saw five horses there.
By Mr. Codd: I do not know what the extent of the common is. I told the defendant and the others the horse was a "gentleman's horse " because they were jealous that I had such a nice horse.
Mr: Lumley Smith, before going into the evidence he had to give the Court, wished to point out a very suspicious circumstance. It appeared that the object of this case was to raise the whole question of the rights and titles of the commoners. He should show that on the occasion when the horse was distrained the defendant came up and said that the horse belonged to a gentleman, and it turned out that he had not paid a farthing for it. The next point was whether his Honour thought they were entitled to any damages. The sale of the horse was very profitable, and everything had been done with the greatest regularity according to the Act; the sale was properly advertised and notices issued in the ordinary way. The main question to be tried was whether the plaintiff had any right to put the horse upon the common, and then whether the defendant, as a commoner, was justified in distraining it. This common, unlike others, had gates, and was fenced all round, and there was no road through it. Certain persons had commonable rights there, and their number was always strictly defined. Every year, at the meeting of the commoners, trustees were appointed and things generally were done more regularly than was the habit with regard to most commons. At some time or other a portion of the common had been taken by the Grand Junction Canal Company, and from the sum paid to them by that company, the commoners were in possession of funded Property. They received about £10 per annum from the stock invested, which went for the repairs of the hedges and gates and to pay the herdsman. A herdsman was appointed by the commoners, who went round and collected the cattle from those who hail commonable rights, took them to the Moor in the morning, and brought them back at night. No cattle were allowed to remain on the Moor at night. The advantage of this system was, that it was clearly defined who had rights and who had not. A man named Southam would tell them that 30 persons were admitted to have commonable rights. The commonable rights related to cows. A man turned on the common as many as he had, but only cows; with the exception that every year at the meeting which took place on the Friday before Old Michaelmas, when the commoners assembled, two were picked out in rotation as having a right to turn on to the Moor a mare and a foal. It was a curious custom, but as long as local memory went back the commoners had had a right to put in a mare and a foal. If the commoner whose turn it was to turn in the mare and the foal had not got them, he could put in a horse. If the next did not care about it, the right passed on to someone else. In respect of that right, each person who put in a mare and a foal paid 25s., and he had the book that had been kept for years.
Mr. Codd: I object to the book.
His Honour overruled the objection.
Mr. Lumley Smith continued that the book had been kept since 1831, and contained entries every year made by the treasurer showing his receipts and payments. Every year they would find " A mare and a foal, 25s., and in many places the name of the person who bad the right—viz., "Samuel King's horse right, "Austin's horse right, £1 5s.," - every year one horse or a mare and a foal allowed. of late years, expenses being le avy, the commoners seemed to have given the horse right to such two commoners as were willing to pay most. Thus there was .£2 10s. or £2 12s. paid, just as the commoners were willing to give it.
His Honour: Is it rot op to the highest bidder?
Mr. Lumley Smith said he did not know that it was so - it seemed to have been by arrangement. They had the fact that the common was limited to cows except the mare and I foal. Stone, the defendant, was a commoner: he possessed one of the 30 tenements that had the right of turning out. He submitted on the face of the thing that if a man had little piece of ground, 60 feet by 90 feet, it could not have the capacity of keeping any animal during the winter. The law was clear upon this point, that the number of cattle the commoner was allowed to put on was limited to the number that the farm would support during the winter. His learned friend was right in saying that if the land were subdivided each occupier of the small portions had a right of putting a limited number of cattle on the common, but he did not quote the whole of the extract trim Chief Justice Willes. The person could not have a right unless his holding would support an animal during the winter. He could not have the right for cattle that he borrowed, unless he made use of them all the year. The learned gentleman here cited the case of “Bennett v. Reeve," and said that he contended with respect to this farm of Ansell’s, his friend had not established any right of common. The whole of the farm had a right, and was sufficient to put some eight cows upon the common, and it was probably entitled to four; but when they cut it down so that no piece of the land was sufficient to keep an animal, the right was gone. There were some 30 tenements with commonable rights, and probably the Moor was sufficient for 70 or 80 cows. Upon Ansell's farm 38 houses had been built, and if each were entitled to send a cow or a horse the whole right would be utterly destroyed, and it was therefore a matter of considerable importance. His learned friend said that the commoners bad no right to distrain, but he thought that they had a right to this extent. If a commoner put on too many animals - say, five, and he was only entitled to put four on, then, he thought they were not entitled to distrain; but he said that here, where the right was gone, - where from the size of his land the man had no right at all, for all purposes of a proceeding of this kind the commoners had a right to distrain. It was not a question of four or five, but of none. His first point was, even if the plaintiff put on a cow, they had a right to distrain because the right was gone. First of all, the plaintiff had no right to put on anything at all, and they had the right to distrain; and the next point was, the plaintiff had no right to put the horse on. So far as the proceeds of the sale were concerned, they had always been at his service. The money bad been offered to his wife, and would have been handed over to him if he had been willing to take it. The plaintiff had commenced this action before the sale of the home. He proposed to call several people who had known the common many years, who would say in a few words what the practice had always been and what rights they had; and Mr. Plaistowe, the secretary to the commoners, would prove other points. His friend had quoted from Chief Justice Willes's judgment, and said that even a man having a yard of land was entitled to turn out cattle on the common. He had consulted an old law authority upon this point, and it was not a literal "yard " that was meant by the old virgata terra. The meaning of a yard of land was thus stated: “The quantity of land differs according to the place or country, as at Wimbledon in Surrey it is 15 acres, in other counties it is 20, in some 24, and in others 30 and 40 acres" (Bracton, lib. 2, a. 10.) He then called Joseph Southam, who said: I am 64 years old, and have lived at Croxley Green all my life. I know Common Moor. It lies in the valley, and has fences all round it and a gate for cattle to go in. My father was herdsman until he died, which was about 54 or 55 years ago. I succeeded him as herdsman. My duty was to go up the Green and collect the cows every morning, and take them down to the Moor. I did it for two years and then my brother succeeded me. I fetched the cows back at night. No cows were allowed to remain there at night. I can tell you the lands that have commonable rights; there are about 30. I know the farm occupied by Mr. George Stone. the defendant. That was one of the farms in respect of which cattle were turned out. At that time two cows were sent. They belonged to Richard Rackliffe, who occupied the farm. I think Mr. Cudworth came after him. Mr. Cudworth let the farm to a Mr. Cox, and I never knew him turn any out. Mr. Stone turned out. Mr. Stone held two farms. One of them belonged to a Mr. Packer, and he turned out. A man named Bowles succeeded Packer, and he turned out. Mr. Ansell turned out. Mr. Austin followed Ansell. A meeting of the commoners was held every year. All those who turned out were served with a notice of the meeting. Two mares and two foals were turned out. Two persons turned out a mare and a foal each, which were allowed to be on the common during the season. That was the practice as long as I had to do with the Moor. The commoners who turned out mares and foals did so by rotation. No other horses were allowed upon the Moor, and horses found there have been impounded. I can give instances of it. Mr. Hull's horse was one. Mr. Hull occupied the very place that I now hold. He turned out cows, and no objection was made to that. The horse got out of his premises on to the Moor and was impounded. I also remember Mr. Robinson's horse. Mr. Robinson occupied a farm in respect of which he turned out. He had a right to turn out cows, but not a horse. Mr. Robinson's horse was impounded and was going to be sold, but it was fetched out of the pound the day before the sale was to be. If I saw a horse on the Moor when I fetched the cows I told the commoners, and they brought it out.
Cross-examined: The case of Hull's horse was 20 years ago at least, and Robinson's rather more. I had nothing to do with the common after the two years when I succeeded my father. I know Hull's horse was impounded because I saw it in the pound. I do not know who impounded Robinson's horse. I was away from the neighbourhood for four years about ten years ago. I have seen three or four horses on the Moor at one time. I have never seen five or six, nor a dozen. I have resided at Croxley Green continuously for the last ten years. I should think the size of Common Moor is about 100 acres. I have never seen more than one of Stone's horses on the Moor; I have seen one. I cannot say whether it was a horse or a mare. The owners held their meeting one year at the Artichoke, and the next at the Coach and Horses. (Witness here mentioned some of the tenements that possessed rights.) He continued: I know the occupiers of these places to be commoners because they turned out cattle. Not quite all the inhabitants of Croxley Green were commoners. I know the land upon which Banting has built his house. Thomas Ansell occupied the farm before the British Laud Company purchased it. The farm was about 30 acres. Ansell exercised the right of common on the Moor from the farm. The land on which the complainant built his house was a part of the farm.
By Mr. L. Smith: During all the time I can remember the persons I have mentioned as commoners have turned out cattle when they liked. There was no limited number of cows; I turned out as many as they brought me. I have known the occupiers of Parrot's Farm. where Mr. Ive lives, turn out as long as I can remember.
Joseph Austin stated: I am 75 years old. I have known Common Moor for 70 years. I have turned out cattle on the Moor for the last 50 years. I am tenant of Holly Tree Farm. I know the farm where Mr. George Stone lives. The occupiers of that farm used to turn out. The occupiers of both his farms used to turn out three or four cows. Only two mares and foals were allowed, or one mare, a foal, and a horse. I have known instances of other horses being pounded. They were horses belonging to the commoners. If a man had not got a mare and foal, he turned out a horse. There was a meeting of the commoners once a year It was held the first Friday before Old Michaelmas, at the Artichoke every other year. I have kept the Artichoke for 40 years. At that meeting they used to select the commoners who were to turn out mares and foals. At the present time those who like to pay most have the right. The Canal Company took a part of the Moor, and certain dividends are paid to the commoners every year, arising from the investment of the money paid by the Company. Mr. William Hunt was treasurer of the fund for many years before Mr. Plaistowe was secretary. I remember John Edlin’s horse being impounded, Duncan Stone's, and George Bailey's. The fences are kept up by the commoners. We subscribe every year to make up the deficiency if there is any. There were regular trustees to act.
Cross-examined: I know where the plaintiff lives. The farm had a right on the common, and Ansell exercised it. I daresay I have seen four or five horses on the common. I have never seen a dozen there. There are about 35 commoners. Mr. Ansell held a place belonging to Mr. Sergeant Woolrych, another belonging to Mr. Weedon, and a place of his own. There are two rights belonging to the farm which has been sold to the building company. The landlord has no right to turn out. I recollect being before the magistrates in Wilkinson's case. I do not think I said that every freeholder and copyholder had a right. Banting is a freeholder. Mr. L. Smith: Would Mr. Banting's place keep a horse?
Witness: A horse! it might keep an old doe rabbit. It would not keep a horse. I did not say anything to Ranting before the horse was impounded.
By the Judge: A horse will eat more than a cow. A horse feeds all night, but a cow lies down.
By Mr. L. Smith: Horses have always been turned off the Moor when found there.
Thomas King stated: I am 62 years old. I have known Common Moor nearly 50 years. I have turned out both mares and foals, and cows too. I think I have turned out five horses in respect of my holding. You might turn out as many cows as you liked. There are 34 reputed commoners. No new places have been allowed to turn out. I know Mr. George Stone. The premises he occupies is one of the places that have always turned out. Mr. Ive's is also one of them. I helped to impound Mr. Robinson's horse about twenty years ago. He turned out cows, but he was "okkerd,” and would turn out horses. The horse was to be sold on the Tuesday, but he fetched it out of the pound on the Monday. The impounding and sale in this case have been conducted in the same manner as on that occasion.
Cross-examined: I have never seen a dozen horses on the Moor, not five or six.
George Stone stated: I am the defendant in this action. I am parish constable. I hold a farm and in respect of it turn out rattle on Common Moor. I impounded the plaintiff's horse. While we were taking the horse to the pound the plaintiff cane up. Mr. Ive’s man was leading the horse with a withe. Plaintiff asked me what I was going to do with the horse. I said I should take it to the pound. The plaintiff then said “Mind what you are doing: this horse belongs to a gentleman." Plaintiff tried to pull the withe off the horse's nose. but I prevented him. We could not get the horse off the Moor by the archway. The horse was too high to go under it. The arch was made for cows to go under, and it is a very difficult matter to get a horse under.
Cross examined Mr. Gurney, the pound keeper, fed the horse while it was in the pound. I took Jr. Gurney a truss of hay for the purpose. I have not turned a horse out for a good while. The last I turned out was stolen, and I said I would never turn nit another. My horse was stolen in 1858.
Thomas Chance stated: I am the herdsman of Common Moor, and have been for eleven or twelve years. A man named Birch was herdsman before me. A man named Beeson was also herdsman. I take the cows down to the Moor in the morning. stay all day, and bring them back at night. The commoners are the holders of certain farms. They are the same now as when I first became herdsman. I took as many cows to the Moor as the commoners chose to send. We allow two homes there. I have seen horses there that have strayed from the meadows. I have known three or four eases of horses being impounded in my time. When I saw the horses there, I told the commoners, and they impounded them. I saw Banting on the Moor when his horse was there. Ovington was also present. We told Banting that the better way was to take the horse away and have no bother. We tried to get the horse under the arch, but wo did not succeed, and it was left on the Moor.
Cross examined: I do not think Banting said he had a right to put the horse upon the common. I saw his horse on the common for about three weeks. I know that Ansell, who held the farm, had a right to turn out a horse when it came to his turn.
Mr. William Plaistow said: I am relieving officer of Rickmansworth and secretary to the persons who have the rights on Common Moor. I produce the book having the entries of the affairs of Common Moor since the year 1828. 1 have been secretary since 1846: Mr. William Hunt was treasurer for some years before that, and afterwards Mr Thomas Weedon. (It was here shown that the entries in this book related to the payment of moneys each year for the "horse right," and also to the receipt of the dividend from the sum of money invested which the commoners received from the Canal Company, &c.) Up to the year 1851, 25s. a year was paid for the mares and foals or horses. After that there was a want of funds, and it was agreed that the right should be given to those commoners who paid most for It. £2 10s. had been paid. The payments consist of the herdsman's wages, mole catching, and mending the fences and gates. The persons who turn on are obliged to pay 1d, a head to Caius College, Cambridge, for the use of the road.
Cross-examined: I know Ansell's farm. I should think there are about 40 houses built upon it. I have never known other persons besides the commoners attend their meeting or wish to do so. Mr. Codd said it was in evidence from the defendant's own lips that Ansell occupied a farm from which there was a right to turn out cattle on the common. His client occupied a portion of that land. His proposition of law was this - What right had Stone - assuming for the moment that he was a commoner-to distrain the cattle or horse of Banting ? He was wrong in the beginning for distraining the horse, and if he had no right to do that, he had no right to sell it. (Mr. Codd here quoted authorities in favour of his argument. One passage stated that the commoner could only distrain the cattle of a stranger.) Was Banting a stranger! Did not Ansell exercise the right of turning cattle on the common for his land! And now that the land was cut up the right was not lost. It was an ingenious thing to say that Banting was not the owner of the horse; but he apprehended that the horse was his as against the world, and it could not be said that it was not his. He would leave the case in his Honour's hands.
Mr. L. Smith, after referring his Honour to "Cruise's Digest," title "Common," said that assuming Ansell had a right to turn out all commonable cattle, it would have been ungracious for the commoners to distrain if he turned out five cows instead of four. But there was not a colour of right for a horse, and the tenement occupied by Banting was so changed that it was rendered unfit to grow sufficient food for a horse or for a cow. (Mr. Smith here referred to the case of " Carr v. Lambert," 34 Law Journal.) It was not necessary that the cattle should be actually fed from the land in respect of which the right was claimed, but that the land, if it were not grass land, should be in such a condition as to be capable of being turned back again into grass land. But here a man had built upon the land, and it was quite clear that it was so changed as not to be capable of keeping horses. The story of the plaintiff buying the horse was a very suspicious one, for his statement was that it was a gentleman's horse. There could be no doubt that the commonable rights were limited to cows.
His Honour in giving judgment thanked the counsel on either side for the. manner in which the case had been put before him. He stated his opinion that Banting had no claim to put a horse on to the common, and never had had a right. He thought that there was no colourable right whatever. He waived altogether the question of his saying the horse was the property of a gentleman. He thought Banting was entitled to the possession of the horse, but he put it on the common without any colourable title. judgment would therefore be for the defendant, with costs.
Mr. Codd said that so far as the plaintiff was concerned the case was a very simple one. The plaintiff kept beerhouse at Croxley Green, which he built upon a plot of land he bought of the British Land Company. The land had formed part of Ansell’s farm. The occupier of Ansell's farm had the right to turn out cattle on Common Moor, and by right of that the plaintiff put his horse there. On the 5th May, the plaintiff's horse being on the common, was taken by the defendant and impounded. The horse was sold on the 17th of May for £28 10s., to recover which the action was brought. Since the action was brought the compensation for the horse had been offered, but the action was for the detention of the horse. No doubt the proper course would have been for the plaintiff to replevy, but be wished to state this as a proposition of law. There was a colour of right in putting the horse upon the common and therefore the commoners had no right to distrain. Ansell had the large portion of land to which the common was incident. The British Land Company let it out in lots, and the plaintiff, the owner of one of these lots in virtue of the right attached to the farm, claimed a right of common. If the defendant did not manually take the horse, he was a party to it, and having stated that, he apprehended that the onus lay upon the defendant of justifying his act. It lay with the defendant to show what right or colour of right he had in taking the horse. He called - The plaintiff, who stated: I am the owner of a plot of ground and a house at Croxley Green. I purchased the land of the British Land Company on the 25th of August, 1866. (The conveyance was put in, between the British Land Company (limited), on the one part, and the plaintiff on the other part. From this, it appeared that the land, which is freehold, was sold to the plaintiff for the sum of £30. that it adjoins Croxley Green Road and has a frontage to it, and that it measures 65 feet by 90 feet.) I built a house on this land. On the 5th May I had a horse, which I turned out on the common called Common Moor. I had been is the habit of turning out this horse for about three weeks. On the 5th of May I went to the moor to fetch my horse as I wanted it to go to work. When I got there, I saw Mr. Stone, the defendant, directing another man who led the horse away. They took it to the pound at Croxley Green. I fed the horse after the first two feeds while it was in the pound. The horse was sold in the market at Watford on the 17th of May an I fetched £18 10s. I have received none of the proceeds of the sale. I have seen other horses on the common before the 5th of May. I do not know who they belong to. I have a large garden attached to my house.
Cross-examined I keep a beershop. It is built on the piece of land I bought under the conveyance produced. I have two stables, one close to the house and one detached, and a pigsty. There is also a shop and four rooms on the ground floor. I had had the horse in question about a month or six weeks before the 5th of May. I bought it of a gentleman named Roberts, of Heronsgate. I was to give £10 for it. I did not pay Mr. Roberts all that money at the time. When the horse was being led to the pound I did not say "This horse belongs to a gentleman;" but I said "That's a gentleman's horse." I have not yet paid Mr. Roberts anything for the horse. Mr. Roberts has the memorandum of the sale of the horse signed by me. I will swear that he has a writing signed by me. Mr. Roberts did not send the horse to be put upon the Moor. I have taken the horse on to the Moor myself and it has been taken by others. It has been fetched away from the common when wanted. I had its shoes taken off and put on again. I do not know how many times I had the home away from the common.
By the Judge: The shoes were not taken off when it was first put on the Moor.
Cross-examination continued: I did not have warning that the horse would be distrained. Mr. Austin never gave me warning that the horse had no business on the Moor. I saw Chance, the herdsman, and a man named Ovington there. I took no notice of them. They did not tell me to take my horse away and let them have no bother about it. I will swear that I never had any notice from either of them. I did not bid for the horse when it was sold, neither did anyone bid in my behalf. I did not run it up. I have seen more than two mares and two foals upon the Moor. I was going down the towing path when I saw five horses there.
By Mr. Codd: I do not know what the extent of the common is. I told the defendant and the others the horse was a "gentleman's horse " because they were jealous that I had such a nice horse.
Mr: Lumley Smith, before going into the evidence he had to give the Court, wished to point out a very suspicious circumstance. It appeared that the object of this case was to raise the whole question of the rights and titles of the commoners. He should show that on the occasion when the horse was distrained the defendant came up and said that the horse belonged to a gentleman, and it turned out that he had not paid a farthing for it. The next point was whether his Honour thought they were entitled to any damages. The sale of the horse was very profitable, and everything had been done with the greatest regularity according to the Act; the sale was properly advertised and notices issued in the ordinary way. The main question to be tried was whether the plaintiff had any right to put the horse upon the common, and then whether the defendant, as a commoner, was justified in distraining it. This common, unlike others, had gates, and was fenced all round, and there was no road through it. Certain persons had commonable rights there, and their number was always strictly defined. Every year, at the meeting of the commoners, trustees were appointed and things generally were done more regularly than was the habit with regard to most commons. At some time or other a portion of the common had been taken by the Grand Junction Canal Company, and from the sum paid to them by that company, the commoners were in possession of funded Property. They received about £10 per annum from the stock invested, which went for the repairs of the hedges and gates and to pay the herdsman. A herdsman was appointed by the commoners, who went round and collected the cattle from those who hail commonable rights, took them to the Moor in the morning, and brought them back at night. No cattle were allowed to remain on the Moor at night. The advantage of this system was, that it was clearly defined who had rights and who had not. A man named Southam would tell them that 30 persons were admitted to have commonable rights. The commonable rights related to cows. A man turned on the common as many as he had, but only cows; with the exception that every year at the meeting which took place on the Friday before Old Michaelmas, when the commoners assembled, two were picked out in rotation as having a right to turn on to the Moor a mare and a foal. It was a curious custom, but as long as local memory went back the commoners had had a right to put in a mare and a foal. If the commoner whose turn it was to turn in the mare and the foal had not got them, he could put in a horse. If the next did not care about it, the right passed on to someone else. In respect of that right, each person who put in a mare and a foal paid 25s., and he had the book that had been kept for years.
Mr. Codd: I object to the book.
His Honour overruled the objection.
Mr. Lumley Smith continued that the book had been kept since 1831, and contained entries every year made by the treasurer showing his receipts and payments. Every year they would find " A mare and a foal, 25s., and in many places the name of the person who bad the right—viz., "Samuel King's horse right, "Austin's horse right, £1 5s.," - every year one horse or a mare and a foal allowed. of late years, expenses being le avy, the commoners seemed to have given the horse right to such two commoners as were willing to pay most. Thus there was .£2 10s. or £2 12s. paid, just as the commoners were willing to give it.
His Honour: Is it rot op to the highest bidder?
Mr. Lumley Smith said he did not know that it was so - it seemed to have been by arrangement. They had the fact that the common was limited to cows except the mare and I foal. Stone, the defendant, was a commoner: he possessed one of the 30 tenements that had the right of turning out. He submitted on the face of the thing that if a man had little piece of ground, 60 feet by 90 feet, it could not have the capacity of keeping any animal during the winter. The law was clear upon this point, that the number of cattle the commoner was allowed to put on was limited to the number that the farm would support during the winter. His learned friend was right in saying that if the land were subdivided each occupier of the small portions had a right of putting a limited number of cattle on the common, but he did not quote the whole of the extract trim Chief Justice Willes. The person could not have a right unless his holding would support an animal during the winter. He could not have the right for cattle that he borrowed, unless he made use of them all the year. The learned gentleman here cited the case of “Bennett v. Reeve," and said that he contended with respect to this farm of Ansell’s, his friend had not established any right of common. The whole of the farm had a right, and was sufficient to put some eight cows upon the common, and it was probably entitled to four; but when they cut it down so that no piece of the land was sufficient to keep an animal, the right was gone. There were some 30 tenements with commonable rights, and probably the Moor was sufficient for 70 or 80 cows. Upon Ansell's farm 38 houses had been built, and if each were entitled to send a cow or a horse the whole right would be utterly destroyed, and it was therefore a matter of considerable importance. His learned friend said that the commoners bad no right to distrain, but he thought that they had a right to this extent. If a commoner put on too many animals - say, five, and he was only entitled to put four on, then, he thought they were not entitled to distrain; but he said that here, where the right was gone, - where from the size of his land the man had no right at all, for all purposes of a proceeding of this kind the commoners had a right to distrain. It was not a question of four or five, but of none. His first point was, even if the plaintiff put on a cow, they had a right to distrain because the right was gone. First of all, the plaintiff had no right to put on anything at all, and they had the right to distrain; and the next point was, the plaintiff had no right to put the horse on. So far as the proceeds of the sale were concerned, they had always been at his service. The money bad been offered to his wife, and would have been handed over to him if he had been willing to take it. The plaintiff had commenced this action before the sale of the home. He proposed to call several people who had known the common many years, who would say in a few words what the practice had always been and what rights they had; and Mr. Plaistowe, the secretary to the commoners, would prove other points. His friend had quoted from Chief Justice Willes's judgment, and said that even a man having a yard of land was entitled to turn out cattle on the common. He had consulted an old law authority upon this point, and it was not a literal "yard " that was meant by the old virgata terra. The meaning of a yard of land was thus stated: “The quantity of land differs according to the place or country, as at Wimbledon in Surrey it is 15 acres, in other counties it is 20, in some 24, and in others 30 and 40 acres" (Bracton, lib. 2, a. 10.) He then called Joseph Southam, who said: I am 64 years old, and have lived at Croxley Green all my life. I know Common Moor. It lies in the valley, and has fences all round it and a gate for cattle to go in. My father was herdsman until he died, which was about 54 or 55 years ago. I succeeded him as herdsman. My duty was to go up the Green and collect the cows every morning, and take them down to the Moor. I did it for two years and then my brother succeeded me. I fetched the cows back at night. No cows were allowed to remain there at night. I can tell you the lands that have commonable rights; there are about 30. I know the farm occupied by Mr. George Stone. the defendant. That was one of the farms in respect of which cattle were turned out. At that time two cows were sent. They belonged to Richard Rackliffe, who occupied the farm. I think Mr. Cudworth came after him. Mr. Cudworth let the farm to a Mr. Cox, and I never knew him turn any out. Mr. Stone turned out. Mr. Stone held two farms. One of them belonged to a Mr. Packer, and he turned out. A man named Bowles succeeded Packer, and he turned out. Mr. Ansell turned out. Mr. Austin followed Ansell. A meeting of the commoners was held every year. All those who turned out were served with a notice of the meeting. Two mares and two foals were turned out. Two persons turned out a mare and a foal each, which were allowed to be on the common during the season. That was the practice as long as I had to do with the Moor. The commoners who turned out mares and foals did so by rotation. No other horses were allowed upon the Moor, and horses found there have been impounded. I can give instances of it. Mr. Hull's horse was one. Mr. Hull occupied the very place that I now hold. He turned out cows, and no objection was made to that. The horse got out of his premises on to the Moor and was impounded. I also remember Mr. Robinson's horse. Mr. Robinson occupied a farm in respect of which he turned out. He had a right to turn out cows, but not a horse. Mr. Robinson's horse was impounded and was going to be sold, but it was fetched out of the pound the day before the sale was to be. If I saw a horse on the Moor when I fetched the cows I told the commoners, and they brought it out.
Cross-examined: The case of Hull's horse was 20 years ago at least, and Robinson's rather more. I had nothing to do with the common after the two years when I succeeded my father. I know Hull's horse was impounded because I saw it in the pound. I do not know who impounded Robinson's horse. I was away from the neighbourhood for four years about ten years ago. I have seen three or four horses on the Moor at one time. I have never seen five or six, nor a dozen. I have resided at Croxley Green continuously for the last ten years. I should think the size of Common Moor is about 100 acres. I have never seen more than one of Stone's horses on the Moor; I have seen one. I cannot say whether it was a horse or a mare. The owners held their meeting one year at the Artichoke, and the next at the Coach and Horses. (Witness here mentioned some of the tenements that possessed rights.) He continued: I know the occupiers of these places to be commoners because they turned out cattle. Not quite all the inhabitants of Croxley Green were commoners. I know the land upon which Banting has built his house. Thomas Ansell occupied the farm before the British Laud Company purchased it. The farm was about 30 acres. Ansell exercised the right of common on the Moor from the farm. The land on which the complainant built his house was a part of the farm.
By Mr. L. Smith: During all the time I can remember the persons I have mentioned as commoners have turned out cattle when they liked. There was no limited number of cows; I turned out as many as they brought me. I have known the occupiers of Parrot's Farm. where Mr. Ive lives, turn out as long as I can remember.
Joseph Austin stated: I am 75 years old. I have known Common Moor for 70 years. I have turned out cattle on the Moor for the last 50 years. I am tenant of Holly Tree Farm. I know the farm where Mr. George Stone lives. The occupiers of that farm used to turn out. The occupiers of both his farms used to turn out three or four cows. Only two mares and foals were allowed, or one mare, a foal, and a horse. I have known instances of other horses being pounded. They were horses belonging to the commoners. If a man had not got a mare and foal, he turned out a horse. There was a meeting of the commoners once a year It was held the first Friday before Old Michaelmas, at the Artichoke every other year. I have kept the Artichoke for 40 years. At that meeting they used to select the commoners who were to turn out mares and foals. At the present time those who like to pay most have the right. The Canal Company took a part of the Moor, and certain dividends are paid to the commoners every year, arising from the investment of the money paid by the Company. Mr. William Hunt was treasurer of the fund for many years before Mr. Plaistowe was secretary. I remember John Edlin’s horse being impounded, Duncan Stone's, and George Bailey's. The fences are kept up by the commoners. We subscribe every year to make up the deficiency if there is any. There were regular trustees to act.
Cross-examined: I know where the plaintiff lives. The farm had a right on the common, and Ansell exercised it. I daresay I have seen four or five horses on the common. I have never seen a dozen there. There are about 35 commoners. Mr. Ansell held a place belonging to Mr. Sergeant Woolrych, another belonging to Mr. Weedon, and a place of his own. There are two rights belonging to the farm which has been sold to the building company. The landlord has no right to turn out. I recollect being before the magistrates in Wilkinson's case. I do not think I said that every freeholder and copyholder had a right. Banting is a freeholder. Mr. L. Smith: Would Mr. Banting's place keep a horse?
Witness: A horse! it might keep an old doe rabbit. It would not keep a horse. I did not say anything to Ranting before the horse was impounded.
By the Judge: A horse will eat more than a cow. A horse feeds all night, but a cow lies down.
By Mr. L. Smith: Horses have always been turned off the Moor when found there.
Thomas King stated: I am 62 years old. I have known Common Moor nearly 50 years. I have turned out both mares and foals, and cows too. I think I have turned out five horses in respect of my holding. You might turn out as many cows as you liked. There are 34 reputed commoners. No new places have been allowed to turn out. I know Mr. George Stone. The premises he occupies is one of the places that have always turned out. Mr. Ive's is also one of them. I helped to impound Mr. Robinson's horse about twenty years ago. He turned out cows, but he was "okkerd,” and would turn out horses. The horse was to be sold on the Tuesday, but he fetched it out of the pound on the Monday. The impounding and sale in this case have been conducted in the same manner as on that occasion.
Cross-examined: I have never seen a dozen horses on the Moor, not five or six.
George Stone stated: I am the defendant in this action. I am parish constable. I hold a farm and in respect of it turn out rattle on Common Moor. I impounded the plaintiff's horse. While we were taking the horse to the pound the plaintiff cane up. Mr. Ive’s man was leading the horse with a withe. Plaintiff asked me what I was going to do with the horse. I said I should take it to the pound. The plaintiff then said “Mind what you are doing: this horse belongs to a gentleman." Plaintiff tried to pull the withe off the horse's nose. but I prevented him. We could not get the horse off the Moor by the archway. The horse was too high to go under it. The arch was made for cows to go under, and it is a very difficult matter to get a horse under.
Cross examined Mr. Gurney, the pound keeper, fed the horse while it was in the pound. I took Jr. Gurney a truss of hay for the purpose. I have not turned a horse out for a good while. The last I turned out was stolen, and I said I would never turn nit another. My horse was stolen in 1858.
Thomas Chance stated: I am the herdsman of Common Moor, and have been for eleven or twelve years. A man named Birch was herdsman before me. A man named Beeson was also herdsman. I take the cows down to the Moor in the morning. stay all day, and bring them back at night. The commoners are the holders of certain farms. They are the same now as when I first became herdsman. I took as many cows to the Moor as the commoners chose to send. We allow two homes there. I have seen horses there that have strayed from the meadows. I have known three or four eases of horses being impounded in my time. When I saw the horses there, I told the commoners, and they impounded them. I saw Banting on the Moor when his horse was there. Ovington was also present. We told Banting that the better way was to take the horse away and have no bother. We tried to get the horse under the arch, but wo did not succeed, and it was left on the Moor.
Cross examined: I do not think Banting said he had a right to put the horse upon the common. I saw his horse on the common for about three weeks. I know that Ansell, who held the farm, had a right to turn out a horse when it came to his turn.
Mr. William Plaistow said: I am relieving officer of Rickmansworth and secretary to the persons who have the rights on Common Moor. I produce the book having the entries of the affairs of Common Moor since the year 1828. 1 have been secretary since 1846: Mr. William Hunt was treasurer for some years before that, and afterwards Mr Thomas Weedon. (It was here shown that the entries in this book related to the payment of moneys each year for the "horse right," and also to the receipt of the dividend from the sum of money invested which the commoners received from the Canal Company, &c.) Up to the year 1851, 25s. a year was paid for the mares and foals or horses. After that there was a want of funds, and it was agreed that the right should be given to those commoners who paid most for It. £2 10s. had been paid. The payments consist of the herdsman's wages, mole catching, and mending the fences and gates. The persons who turn on are obliged to pay 1d, a head to Caius College, Cambridge, for the use of the road.
Cross-examined: I know Ansell's farm. I should think there are about 40 houses built upon it. I have never known other persons besides the commoners attend their meeting or wish to do so. Mr. Codd said it was in evidence from the defendant's own lips that Ansell occupied a farm from which there was a right to turn out cattle on the common. His client occupied a portion of that land. His proposition of law was this - What right had Stone - assuming for the moment that he was a commoner-to distrain the cattle or horse of Banting ? He was wrong in the beginning for distraining the horse, and if he had no right to do that, he had no right to sell it. (Mr. Codd here quoted authorities in favour of his argument. One passage stated that the commoner could only distrain the cattle of a stranger.) Was Banting a stranger! Did not Ansell exercise the right of turning cattle on the common for his land! And now that the land was cut up the right was not lost. It was an ingenious thing to say that Banting was not the owner of the horse; but he apprehended that the horse was his as against the world, and it could not be said that it was not his. He would leave the case in his Honour's hands.
Mr. L. Smith, after referring his Honour to "Cruise's Digest," title "Common," said that assuming Ansell had a right to turn out all commonable cattle, it would have been ungracious for the commoners to distrain if he turned out five cows instead of four. But there was not a colour of right for a horse, and the tenement occupied by Banting was so changed that it was rendered unfit to grow sufficient food for a horse or for a cow. (Mr. Smith here referred to the case of " Carr v. Lambert," 34 Law Journal.) It was not necessary that the cattle should be actually fed from the land in respect of which the right was claimed, but that the land, if it were not grass land, should be in such a condition as to be capable of being turned back again into grass land. But here a man had built upon the land, and it was quite clear that it was so changed as not to be capable of keeping horses. The story of the plaintiff buying the horse was a very suspicious one, for his statement was that it was a gentleman's horse. There could be no doubt that the commonable rights were limited to cows.
His Honour in giving judgment thanked the counsel on either side for the. manner in which the case had been put before him. He stated his opinion that Banting had no claim to put a horse on to the common, and never had had a right. He thought that there was no colourable right whatever. He waived altogether the question of his saying the horse was the property of a gentleman. He thought Banting was entitled to the possession of the horse, but he put it on the common without any colourable title. judgment would therefore be for the defendant, with costs.
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