View report page

24
one of the Rights I have named, the Court will, if it can, find a possible
legal origin, and on this point I cannot do better than quote the best lawyer
on the subject we have ever had.
Dictum of the master of the Rolls. In an action respecting Lammas Rights, a claim ver y similar
to this was put forward, and Sir George Jessel, the Master of
the Rolls, said :—
"Now it is not for me to say in what way the Plaintiffs will state their
"case, nor is it for me to say what amendments (in their claim) may be
"allowed, if necessary, at the trial of the Action, but I will say this, sp far
"as I am concerned, that I entirely assent to what has fallen from eminent
''Judges, to the effect that where longcontinued user is proved of a beneficial
"njoyment of Rights of this kind, the tribunal ought not to be astute to
"destroy these valuable Rights on any technical notion that a legal origin
"could not be attributed to them. It is the duty of the Judges, as far as
"it is possible to do so, to attribute a legal origin to the actual exercise of
"these Rights. But that is a duty which I think can only be discharged
"on the trial of the action, when the Judge knows what the facts are, and
"what the evidence really is on which he is called upon to adjudicate. It
"seems to me that it is the duty of the Pleader to state what is undoubtedly
"considered the legal right, and that it is the duty of the Judge at the trial
"to ascertain whether the evidence supports that supposed legal right, or
"can fairly be allowed to support some other legal right. In that case, of
"course, subject to the rights of the Defendant, he would allow proper
"amendments with that view."
With tlie exception of the case I have referred to, no case in recent years
in which Rights of Pasture over Lammas Lands was involved, has come
before the Courts. All the well-known decisions have related to rights of
Common over Manorial or Forest Wastes. Lammas Lands are not
wastes, they are Common Meadow Land, the ownership of which is not
necessarily in the Lord of the Manor, nor are they usually connected with
the Manorial system, beyond that the lands may be held freely or by copy
of Court Roll of the Manor. Lammas Meadow Lands, and the Common
Fields are the relic of the Village Community system of Agriculture which
was at one time prevalent over a large part of England.
The legal problem, The problem, therefore, which presents itself in framing a claim
in a case of this nature, is to bring the facts obviously pointing to
a state of things antecedent to the Manorial system within the technical
rules of pleadings which have arisen out of the latter system.
It has been decided that parishioners and inhabitants cannot claim as
such, because they are a body incapable of taking a grant, but if it is found
that the practice has been for an inhabitant householder as such to turn
his beasts on to the lands it becomes necessary to modify the fictions
created by medisoval lawyers to reconcile facts with feudal theories, by
other suggestions perhaps equally hypothetical, derived from the same
system.
To decide that immemorial usage is not evidence of some ancient right
having been created, would be practically to deny justice to a large class of
persons actually exercising it, and hence the obligation which the Courts
recognise of finding a legal origin if it can, and of reconciling well-known
facts with rules of law too well ascertained to be summarily set aside, but
which have no doubt been adopted in deference rather to cherished theories
than to historical truth,
Position of the Vestry the Vestry, I understand, is the owner of certain freehold lands
in the parish, upon part of which it is intended to erect a Vestry