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![handle is hein.slavery/ssactsengr1006 and id is 1 raw text is: MICHAELMAS TERM, 6 GEO.in. 1765
uninclosed, some of the witnesses said that such owners of the uninclosed lands had
a right of common without stint; but that after any of them had inclosed his land,
such person had no right of common at all in the said fields, or either of them.
Another witness said, if a man inclosed all his lands in the fields, he lost his right of
common totally; but that if he left any bit, only an acre uninclosed, he used to enjoy
his common in regard to that acre uninclosed, just as before, and used to put in any
number of cattle without stint. Several other old witnesses swore to the same effect,
and here the defendants rested their case ; whereupon the Judge was of opinion that
the defendant had not proved the custom, which he said was entire, that several of
the witnesses had proved that if a man inclosed 19 acres out of 20, it was the custom
for him in respect to the one acre not inclosed, [274] to put on to the uninclosed lands
as many cattle as he pleased without stint, and as he had done before he inclosed the
19 acres, and therefore the Judge was pleased to tell the jury, that he thought the
defendant had not proved the custom entirely, and that if they believed the land
inclosed in question was discharged and freed from any person having a right of
common thereon, they should find for the defendant; if not, that they should find for
the plaintiff; whereupon the jury gave a verdict for the plaintiff.
It was now moved for a new trial, for the misdirection of the Judge; 1st, for that
the custom to inclose was fully and clearly proved; and 2dly, that the right of common
before inclosure made, was for cattle levant and couchant upon each person's uninclosed
lands; and this matter is not at all in issue, but is admitted on the pleadings by both
sides; the right of inclosure with its consequence, viz. its being freed from any person's
former right of common thereon, was the only matter in issue, the other was a legal
consequence, and not traversable, (to wit,) that the owner of such inclosed land is
barred of any future right to common on the uninclosed land in these fields, and what
some of the witnesses said of common without stint is nothing to the purpose, for
there is no such thing as common without stint belonging to land; common belonging
to land can only be for cattle levant and couchant thereon : that the custom to inclose
was clearly proved, as appears by the evidence before stated; and when the land is
inclosed, it is freed and discharged from any person's former right of common thereon:
and of this opinion was the whole Court, and said, 1st, that the parties agree by the
pleadings, that while the lands in these open fields are uninclosed, all have a right of
common for cattle levant and couchant; 2dly, the custom to inclose, and that the
land as soon as, and while inclosed, is free from common, is fully proved ; the 3d matter
is a consequence in law, and wanted no proof, viz. that as soon as any person has
inclosed, he has excluded himself from any right of common on any of the uninclosed
lands; and any judgment given upon this record cannot be a bar to any other party
who may claim common in these fields without levancy and couchancy. Per totam
Curiam.-The verdict must be set aside for misdirection of the Judge, and there must
be a new trial.
[275] JOHN ENTICK, Clerk, versus NATHAN CARRINGTON AND THREE OTHERS,
Messengers in Ordinary to the King. C. B. Trespass for breaking and entering
plaintiff's house, &c. Special justification under a warrant of the Secretary of
State.
[S. C. 19 How. St. Tri. 1030. Referred to, Dillon v. O'Brien, 1887, 20 L. R. Ir. 316;
Jones v. German [1896], 2 Q. B. 423; [1897], 1 Q. B. 374.]
In trespass; the plaintiff declares that the defendants on the 11th day of November
in the year of our Lord 1762, at Westminster in Middlesex, with force and arms broke
and entered the dwelling-house of the plaintiff in the parish of St. Dunstan Stepney,
and continued there four hours without his consent and against his will, and all that
time disturbed him in the peaceable possession thereof, and broke open the doors to
the rooms, the locks, iron bars, &c. thereto affixed, and broke open the boxes, chests,
drawers, &c. of the plaintiff in his house, and broke the locks thereto affixed, and
searched and examined all the rooms, &c. in his dwelling-house, and all the boxes,
&c. so broke open, and read over, pryed into, and examined all the private papers,
books, &c. of the plaintiff there found, whereby the secret affairs, &C. of the plaintiff
became wrongfully discovered and made public; and took and carried away 100
printed charts, 100 printed pamphlets, &e. &c. of the plaintiff there found, and other
2 WIMS. 3L B. 274.](ViewImageLocal?handle=hein.slavery/ssactsengr1006&div=1&collection=&method=preview&ext=.png&size=3)