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regulations as to number of cattle and time of opening the meadows as the
Homage oi the Manor Court shall from time to time prescribe (4) That
the nature of the Right is at least a Right of Pasture for all cattle including
horses-levant and couchant within the Manor, as appurtenant to the lands
and tenements within the Parish held of the Manor.
I have now dealt with the subject from two points of view—the historical
and the evidence of user; hut it must not be theught that all the proper
investigations have been made, or that all the evidence of user has been
obtained, for with the limits placed upon me it would be impossible to do so ;
but I have no reason to apprehend that further research will do ought but
confirm and strengthen the evidence already disclosed and the opinion
expressed.
Difficulties of Cases There are, however, in this as in all cases of a kindred nature,
difficulties which must be faced, if it is desired to fight the battle t
out.
The law on the subject is abstruse and intricate; the procedure in the
Courts is tedious and costly ; witnesses will not live for ever, while it seems
the user is every year becoming less, and, therefore, while the Vestry is
determining upon the course it should take, it is better that it should know
what difficulties it may expect to be raised, and how they will have to
be met.
Probable defences, It may be anticipated with a fair degree of certainty that the
defences which will be raised in an action for establishing the
Rights claimed will be—(1) That the lands never were subject to Lammas
Rights. (2) That there has not been any user over them. (3) That if the
lands are Lammas Lands the Rights have been abandoned. (4) That there
is a custom to enclose them, and (5) That the Rights put forward are not
known to the Law.
Methed of treatment of problam defences. These are the stock defences which are invariably made, of
course sometimes with omissions and variations to suit the
particular case, but I do not think, with one exception, there
need be much apprehension. The lands can be identified both by documentary
and oral evidence ; the user it is true has been continuous but scant
of late, nevertheless living witnesses, supported by documents, prove the
existence of a right of pasture of some kind; while with respect to
abandonment, that is a point that can only be dealt with at the trial, but
I think it would fail.
The two important questions are the last two : Whether there is a
custom to enclose ? and, Whether the Right is known to the Law ?
There is only one entry upon the rolls that I have found to support such
a custom, but that was a presentment during the Commonwealth, after the
Manor had been seized by the Parliamentary Commissioners, and was in
the hands of a man who had purchased from them, but who ^\as
subsequently ejected for want of a good title. All previous entries„ and
there are several, distinctly negative the custom, and as " the life of a
custom depends upon antiquity," the earlier entries would, I think, prevail.
The last question will turn principally upon the oral evidence. Lammas
Rights exercisable by the tenants of a Manor, and by Owners and Occupieis
of lands in a Parish, are Rights known to the Law, and, therefore, the
question is, whether the user proved can be referred to the existence of one
or other of these Rights? At the same time, if there is clear and plenfiful
evidence that the Owners and Occupiers of lands and tenements wit un the
Parish have as a matter of fact during all the period of living memory
exercised the Rights claimed, and such user cannot be refened Strictly to