Little and Another, in Error, v Wingfield and Others

• Jurisdiction: Ireland
• Judgment Date: 17 June 1859
• Date: 17 June 1859
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

LITTLE and another, in Error,

and

WINGFIELD and others.

Somerset v. FogwellENR 5 B. & C. 875.

Bird v. HigginsonENR 2 Ad. & El. 696.

Fitzwalter's case 1mod. 105.

Carter v. MuyrcotENR 4 Burr. 2662.

Bagot v. Orr 2 B. & pul. 472.

The Mayor of Hull v. Horner Cow. 102.

Eldridge v. Knott Cow. 214.

Bright v. WalkerENR 1 Cr., M. & R. 211.

Livitt v. WilsonENR 3 Bing. 115; S. C., 10 B. M. 439.

Doe v. ReadENR 5 B. & Al. 232.

Doe v. CookeENR 6 Bing. 179.

Attorney-General v. Ewelme HospitalENR 17 Beav. 366.

Blewitt v. Tregonning 3 Ad. & Ell. 554.

Gabbett v. Clancy 8 Ir. Law Rep. 299.

Hopkins v. Robinson 2 Lav. 2.

Barlow v. Rhodes 3 Tyr. 280.

Manuel v. Fisher 5 Jur., N. S., 389.

Holcroft v. Hele I B. & Pul. 400.

Campbell v. WilsonENR 3 East, 294.

Calmady v. RoeENR 6 C. B. 861.

Lopez v. Andrew 3 M. & Ry. 329, n.

Vooght v. WiuchENR2 B. & Ad. 662.

Williams v. Wilcox 8 Ell. & Bl. 314.

Roe v. IrelandENR 11 East, 280.

Duke of Devonshire v. Hodnett 1 Had. & Bro. 322.

Doe v. IrelandENR 11 East, 294.

Doe v. Millett 11 Q. B. 1036.

Day v. Williams 1 Cr. & Jer. 460.

Gray v. Bond 2 Bro. & Bing, 667.

Keen v. DeardonENR 8 East, 267.

Doe v. WrightENR 2 B. & A. 710-20.

Doe v. ScottENR 11 East, 483.

Jones v. ChapmamENR 2 Exch. 803

Holford v. Bailey 8 Q. B. 1000; S. C., in Error, 13 Q. B. 426.

Doe d. Hammond v. CookeENR 6 Bing. 174.

Eldridge v. Knott Cow. 214.

Rex v. BurdettENR 4 B. & Ald. 95, 161.

Gray v. Bond 2 Bro. & B. 667.

The Mayor of Hull v. Horner Cowper, 109, 110.

Eldridge v. Knott Cowper, 215.

Carter v. MurcotENR 4 Burr. 2165.

Fenwick v. ReedENR 5 B. & Ald. 234.

Blewitt v. TregonningENR 3 Ad. & E. 580.

Hull v. Horner Cowp. 102.

Lopez v. Andrew 3 M. & Ry. 329, n.

Roe v. IrelandENR 10 East, 284.

The Mayor of Hull v. Horner Cowp. 108.

Fenwick v. ReadENR 5 B. & A. 232.

Blewitt v. Tregonning 3 A. & E. 554.

Gray v. BondUNK 2 B. & B. 667.

Roe v. IrelandENR 11 East, 280.

Campbell v. WilsonENR 3 East, 294.

Livett v. WilsonENR 3 Bing. 115; S. C., 10 B. Moore, 439.

Campbell v. WilsonENR 3 Camp. 294.

Bann Fishery case Sir J. Davies, 55.

Blewitt v. TregonningENR 3 Ad. & E. 554.

, COMMON LAW REPORTS. 63 T. T. 1859. Exch. Cham, Eltbequtr arbarribtr. (Error from the Common Pleas.) LITTLE and another, in Error, v. WINGFIELD and others.* June 1, 2, 3, 4, 6, 17. A several fishÂery in the river M., having beÂcome re-vested in the Crown, was in 1669 re-granted in fee-simple to Sir G. P., whose repreÂsentatives, afterwards, in 1788, demised the same to a party through whom the plaintiffs claimed. The defendants, at the trial of an action for the disturbance of the plaintiffs in the excluÂsive enjoyment of said right, having given some evidence of adverse user by them of a fishery within a portion of that claimed by the plainÂtiffs, at a cerÂtain spot in the M., opposite to the lands of S., for upwards of sixty years :ÂHeld (RICH ARDS, B., dissentiente), affirming the judgment of the Court of Common Pleas, that the jury were at liberty to presume a sub-grant by the owners of the original fishery to parties under whom the principal defendant derived. * Coram LEFROY, C. J. ; PIGOT, C. B. ; PERRIN, O'BRIEN and HAYES, JJ. ; RICHARDS and GREENE, BB.-PERRIN, J., did not deliver judgment. 64 COMMON LAW REPORTS. T. T. 1859. Nicholas Lord Delvin, inter alia," the entire of the fishery, fishing and Exch. Chant. " taking of salmon and other kinds of fish of the bay, creek, river and LITTLE " water of Moy in the county of Mayo, within our province of ConÂy. WINGFIELD. " naught, within the entire space of the ebbing and flowing of the sea " and sea water in the bay, &c., aforesaid, extending from the Great " Irish Ocean from the north, southwards as far as the ford of the " Abbey of Ardnaree, and thence re-flowing as far as the Irish OceanÂ" aforesaid, to hold in common socage at a rent of £5. 15s." Letters patent, 15th of June 1613, 11 Jae. 1, re-granting same to Henry Piers, Esq., at a like rent. Sundry attested copies of extracts from Crown rentals, showing that said fishery had been put in charge, and entries thereon of pay ' ments of rent in the years 1612, 1613, 1615, 1622, 1624, 1627, 1637, 1639, 1641 ; and showing that Lord Delvin was tenant of the Moy fishery in 1612 ; that Piers was tenant in 1613, and that John Dowd was tenant in the subsequent years above named, including the year 1641. • Decree of the Court of Claims, 16th of July 1666, in favour of Sir G. Preston. Letters patent, 27th July 1661, 13 Car. 2, granting " all and sinÂgular fishings in the sea, in and belonging to Connaught," to Sir George Preston, his heirs and assigns, for ever. Letters patent, 29th of May 1669, 21 Car. 2, reciting patent 13 Car. 2, aforesaid; sections of Acts of Settlement and Explanation ; that as to some of the fishings in the former 'patent contained, Sir G. Preston had been disappointed thereof, by decrees made in the Court of Claims, and for want of more particular expressions than j were in said former grant contained ; reciting also the grant by the general words of " all and singular the,,fishings ifi the sea in and belonging to Connaught ; " that it was intended to make the former grant more effectual ; grant " all that salmon fishing, pike, eel, and other fishing of and in the river Moyne in the county of Sligo, in that province, saving always, to all and every person and persons 'who have had any decree from the late Commissioners of the Court of Claims in Ireland, of the premises, or any part thereof, the full benefit of their respective decrees. COMMON LAW REPORTS. 65 Letters patent, 23rd of May 1684, 36 Car. 2, granting fisheries T. T 1859. sa. in the Moyne tp J. Browne, reserving the right of Sir G. Preston. E A deed of assignment, dated 17th of December 1678, from Viscount LITTLE v. Granard and Lieutenant-Colonel Hamilton to Sir Arthur Gore, WINGFIELD. with a memorandum of delivery of possession of the said fishery indorsed thereon. Attested copies of recoveries suffered by Sir Arthur Gore and his descendant, the Earl of Arran, in 1730, 1782, 1809 and 1810. Marriage settlement of Sir A. Gore, dated in 1730. Marriage settlement of eldest son of Sir Arthur Gore, dated in 1760. Deed, dated in 1784, whereby the then Earl of Arran conveyed his estates to trustees, including the fishery in question. Private Act of Parliament, passed 1785. Deeds of conveyance, dated respectively 27th and 28th of May 1788. Lease, dated 25th of October 1788, from Cuffe, a trustee of Lord Arran, to Messrs. Jones and Lindsay, of the fishery in question, "from the ford of the castle of Belleek to the sea," for 1000 years, at £250 a-year. Sundry documents to prove pedigree of the Arran family. Decree of the Court of Chancery, dated 1810. Re-conveyance, dated 20th of January 1821, in pursuance of said decree, by Cuffe to the Earl of Arran, of "all the fishings of the Moy, " and all the creeks, &c., thereunto belonging, from the ford at, the " castle of Belleek to the sea," subject to said lease. Payment of rent by plaintiffs to Lord Arran. Decree of Court of Claims, dated in 1668, in favour of Lewis Wingfield ; whereby it was declared that the lands of Scurmore, amongst others, bad been seized, &c., by reason, &c., of the late horrid rebellion, and thereby forfeited to His Majesty ; and that said lands allotted to the said Lewis Wingfield or those under whom he claimed, for their services as soldiers, were, upon the 7th day of May 1659, in the actual seisin, possession and occupation of the said Lewis Wingfield, or those under whom he claimed, his or their vox,,,1 1. 9L - 66 COMMON LAW REPORTS. lessees or undertenants ; and said John Wingfield was declared entitled to several denominations of land, and, amongst others, to said lands of Scurmore, " together with all and singular castles, " houses, &c., &c., weirs, fishings, fences, &c., &c., and appurtenances, " to the premises, or any part thereof, belonging or appertaining, or " therewith usually held, occupied, possessed and enjoyed." Letters patent, dated 1670, pursuant to said decree, granting to Lewis Wingfield, inter alia, said lands of Scurmore, " together with " all and singular castles, messuages, &c., waters, watercourses, fishÂ" ings, weirs, &c., and all and singular other profits, commodities, " rights, privileges, advantages, emoluments and hereditaments to " the said premises, or any part or parts thereof, belonging, or anyÂ" wise appertaining." The will (.,f Lewis Wingfield, dated 2nd of September 1673. Marriage settlement of Richard Wingfield, dated in 1721. Memorials of two leases of said lands of Scurmore, dated respecÂtively 11th and 12th of March 1752, from Lord Powerscourt to Annesley Gore and another, which did not expire until 1818. A sub-lease from said Gore to Nesbitt, of the lands of Scurmore. An extract from the Book of Survey and Distributions, showing that, in 1641, the owner of Scurmore, therein called Skermore, 65A. lu., county of Sligo, barony of Tiveragh, parish of Castle-common, was William Lynch (described as an " Irish Papist"), and that same, with other lands, had been given to Lewis Wingfield. The defendants gave in evidence the following documents, viz. :- The said decree of the Court of Claims, of 1668. The said patent of 1670. Copy of the will of Lord Powerscourt, the father of the defendant, dated in 1788, whereby he devised to his third son Edward (the defendant) all his estates in the counties of Sligo and Mayo, in the following terms, viz :-" And as to my said estates, manor lands " and premises, situate in the said counties of Sligo and Mayo, from " and immediately after my decease, to the use and behoof of my third " son, the said E. Wingfield, and his assigns, for and during the " term of his natural life, without impeachment of waste." The rental of the defendant's Sligo estates, showing the rents COMMON LAW REPORTS. 67 received by defendant for the...