the Petitioners state a Possession as Lords of the Manor, and their belief as to a Title by Grant, or Prescription, or otherwise. According to Lord Hale and Lord Coke (s), when the Lord of the Manor is entitled to Wrecks, he has a right also to the Soil. The right of Wreck has been tried by one of the Petitioners, Mr. Scrope, it having been claimed as a Droit of the Admiralty, and it was held that he was entitled to the Soil and by consequence to the Wreck. That Case applied only to Mr. Scrope's Lands, but it establishes the fact, that in the adjoining Manor the Tenants had constantly exercised Commonable Rights. Whenever Tenants of a Manor exercise a Right of Common, it forms prima facie Evidence that the Right to the Soil is in the Lord of the Manor. Evidence of Right may appear by carrying away Sea Weed, or by digging or taking away the Soil. If no such Evidence is here adduced, it probably is because there is no Sea Weed, and the Soil cannot be used as it is in some other parts of England. We prove that it has been constantly depastured by Cattle of Tenants of the Manor. In questions of Boundary, it has always been considered as sufficient to show, by the depasturing of Cattle for a series of years, that it belongs to the Lord of the Manor. Upon the whole, we contend that the Petitioners have sufficiently shown such a Title as entitles them to permission to traverse. The VICE CHANCELLOR: This is a Case in which the Crown has thought fit to direct a Commission to certain Gentlemen named, to inquire, with the assistance of a Jury, whether certain (s) Sir Henry Constable's Case, 5 Rep. 106 b. VOL. IV. Y 1819. Ex parte Lord GwYDIR and another. 1819. Ex parte Lord GwYDIR and another. Lands adjoining or near to certain Parishes in Lincolnshire, were in times past covered with the Sea, and are now by the Sea left, and not covered with Water; and whether they belong to, and have been unjustly subtracted from, the Crown? The Commissioners have returned an Inquisition, by which it appears that the Jury have found certain Facts; and Lord Gwydir objects, that he is prejudiced by such finding; and that the Inquisition and Return ought therefore to be quashed, or that he ought to be permitted to try the truth of these Facts by Traverse. I have already stated, than an Inquisition cannot be quashed upon the application of a Subject. The first Question is, Whether there be any right in the Subject to traverse an Inquisition of this nature; and it is argued for the Crown upon the Statutes stated, that the right of the Subject to traverse is confined to Cases in which the Crown claims Property by reason of the incidents of Tenure. Upon consideration of the several Statutes referred to, they appear to me rather to be made to regulate the exercise of an acknowledged right, than to create that right; and it is to be inferred, from the language of some of the Statutes, that the right of the Subject to traverse was then admitted in every Case in which Property was found in the Crown by Inquisition, and not merely in Cases arising out of Tenure. The Vice-Chancellor then proceeded to read and comment upon the several Statutes,-and continued. My Opinion therefore is, that there is a general right in the Subject to traverse every Inquisition by which Property is found to be in the Crown; and, consequently, a right to traverse an Inquisition of the nature in question. The next consideration is, Whether Lord Gwydir has made out a Case which authorizes the Court to permit his Traverse? In other words, whether Lord Gwydir has made out a primâ facie Case of Title. Lord Gwydir affirms by his Affidavit, that the Lands in question are parcel of the Manor; and it is in Evidence that the Tenants of the Manor have for a great length of time enjoyed Rights of Common upon the Lands. This is not only a prima facie Title, but it is a Title which is not expressly negatived even by the finding of the Jury. The Jury have found, "That the Land in question was in times past covered with the Water of the Sea, and is now, and has been for several years past, by the Sea left, and not covered with Water, except at high Tides, when the Sea doth flow to the said Sea Wall or Sea Bank; and which Land, from the time of such dereliction, hitherto hath been and still is unoccupied, but the Herbage thereof hath been from time to time eaten and consumed by the Cattle and Sheep belonging to the different Tenants or Occupiers of Land situate within the said Sea Bank or Sea Wall in the said Town, Parish or Lordship of North Somercotes.” It is not absolutely inconsistent with this finding, that the Land in question might formerly have been within the ordinary high and low-water-mark, and that those under whom Lord Gwydir claims might have acquired a Title by Grant from the Crown. It is consistent with this finding, that this Land might have been recovered from the Sea by gradual alluvion, and thus have become part of the Manor; for the Crown has Title only when new Land is recovered by the sudden dereliction of the Sea. For the reasons which I have already stated, I shall 1819. Ex parte Lord GWYDIR, and another. 1819. Ex parte give no Opinion whether the finding of the Jury amounts to Title in the Crown. Those who advise Lord Gwydir in the proceeding by Traverse, which I now declare Lord GWYDIR that he is at liberty to take, if he thinks proper, will determine for him what is the Fact which he has to try at Law. and another. The Vice-Chancellor then added: Although I have thus expressed my Opinion upon this Petition, yet, considering the importance of the general principle, which I deduce from the Statutes referred to, and the number and extent of those Statutes, I shall be quite ready to hear a second Argument upon this subject, if it be desired on the part of the Crown. Solicitor-General: I do not think that it is necessary, after what your Honor has stated, to trouble you with the Case of the other Petitioner, Mr. Scrope. The VICE-CHANCELLOR : The Case of the other Petitioner will afford you the opportunity of reconsidering the effect of those ancient Statutes. Solicitor-General: We are glad that your Honor has gone so fully into the subject as to do away that necessity. Mr. Scrope's Case, in respect of the circumstance of the Wreck, is, indeed, a stronger Case for him than Lord Gwydir's. Permission to traverse allowed. WATHEN v. SMITH. 1819. 27th, 30th July, 2d August. Covenant by Husband on Marriage to pay to the Wife 1,000l. six By his Will he gives her 1,000l. payable three months after his decease; and and personal J. WATHEN, by a Covenant in his Marriage Settlement, 31 January 1801, covenanted, "for himself, his Heirs, &c. that in case the intended Marriage should take effect, and Eliz. Smith (his intended Wife) should months after his survive him, his Heirs, &c. should, within six calendar decease. months next after his Decease, pay or cause to be paid unto the said Eliz. Smith, her Executors, &c. the sum of 1,000l. sterling, to and for her and their own use and benefit." The Marriage took place; and J. Wathen died 17th January 1808; and by his Will 24th May 1805, after certain speafter giving a Leasehold Dwelling-house to his Wife, cific Legacies, bequeathed as follows: "I also give and bequeath unto directs the resimy said dear Wife Eliz. Wathen the sum of 1,000l. of due of his real lawful money of Great Britain, to be paid to her within three calendar months next after my decease, for her own use and benefit." And the Testator also bequeathed to his Wife all his China, Books, Pictures and Household Goods of every sort and kind whatever, and all his stock of Wines and other Liquors in his Dwellinghouse at his death; and also his Carriages, Horses and Harness; and also his Watches, Diamonds, Rings, Trinkets, Wearing Apparel, and all her Paraphernalia. And after giving certain specific pecuniary Legacies, gave, devised and bequeathed all his freehold Messuages, Farms, Lands, Tenements and Hereditaments Marriage. whatsoever and wheresoever, and also all the rest and residue and remainder of his leasehold Estates whatsoever and wheresoever, with their Appurtenances, unto Estate to be sold, all his Debts and and pay thereout Legacies, and to pay the Interest on the residue to his Wife for second MarLife, or until her riage, with a Limitation over on her Death or The Legacy held to be a Satisfaction of the Covenant. |