The Duke of Devonshire v Neill and Fenton

• Jurisdiction: Ireland
• Judgment Date: 01 January 1876
• Date: 01 January 1876
• Court: Exchequer (Ireland)

Exch.

THE DUKE OF DEVONSHIRE

and

NEILL AND FENTON.

Hayne v. RedfernENR 12 East, 114.

Lane's CaseUNK 2 Rep. 16 a.

Wimbish v. Lord Willoughby Plowd. Com. 76.

Buxton v. RidleyENR 11 Mod. 223, Vin., tit. Record, B. 20.

Doddington's CaseUNK 2 Rep. 32 a.

Bullen v. Michel 4 Dow. P. C. 297.

Padwick v. WittcombENR 6 Ex. 601, 4 H. L. 425.

The Queen v. Leigh 10 A. & E. 398.

Laybourn v. CrispENR 4 M. & W. 326.

Brisco v. Lomax 8 A. & E. 198.

De Jure Maris Hargrave's Law Tracts, p. 20.

Weeks v. SparkeENR 1 M. & S. 687.

Pim v. CurellENR 6 M. & W. 234.

The Earl of Carnarvon v. VilleboisENR 13 M. & W. 313.

Rogers v. WoodENR 2 B. & Ad. 245.

Freeman v. PhillippsENR 4 M. & S. 486.

The Baron de Rutzen v. Farr 4 A. & E. 53.

Graham v. Hawkins 2 Q. B. 212.

Price v. WoodhouseENR 3 Ex. 616.

Davies v. LowndesUNK 7 Sc. N. R. 141.

Denn v. SprayENR 1 T. R. 466.

Crease v. BarretENR 1 Cr. M. & R. 919.

Evans v. ReesENR 10 Ad. & E. 151.

Rogers v. WoodENR 2 B. & Ad. 245.

Monkton v. Attorney-General 2 Russ. & Myl. 161.

Earl of Egremont v. Pulman 3 Q. B. 622.

Rowe v. BrentonENR 8 B. & C. 737.

Daniel v. WilkinENR 7 Ex. 437.

The Duke of Beaufort v. Mayor of SwanseaENR 3 Ex. 413.

Waterpark v. FennellENR 7 H. L. C. 650.

Stammers v. DixonENR 7 East, 200.

Kingslake v. BevissENR 7 C. B. 456.

The Attorney-General v. Drummond 1 Dru.& War. 368.

Pim v. CurellENR 6 M. & W. 234.

The Bishop of Meath v. Marquis of WinchesterENR 3 Bing. N. C. 200-2.

Padwick v. WittcombENR 6 Ex. 601.

Bullen v. Michel 4 Dow. P. C. 297.

De Jure Maris Harg. Law Tracts, p. 11.

Mulholland v. Killen Ir. R. 9 Eq. 478.

Lord Barclay's Case Hargrave's Law Tracts, 34.

Bann Fishery Case Sir J. Davies' Rep. p. 152, ed. 1782.

Murphy v. RyanUNK Ir. R. 2 C. L. 143, 149.

The Mayor and Corporation of Carlisle v. GrahamELR L. R. 4 Ex. 361, 368.

The Duke of Somerset v. FogwellENR 5 B. & C. 875.

The Abbot of Strata MercellaUNK 9 Rep. 24.

Heddy v. Wheelhouse Cr. Eliz. 591.

The Prince's CaseUNK 8 Rep. 1a.

The Duke of Beaufort v. Mayor of SwanseaENR 3 Ex. 413.

The Prince's CaseUNK 8 Rep. 1a.

The Duke of Northumberland v. HoughtonELR L. R. 5 Ex. 127.

Malcomson v. O'DeaENR 10 H. L. C. 593.

Lyle v. RichardsELR L. R. 1 H. L. 222.

Malcolmson v. O'DeaENR 10 H. L. C. 593.

Crease v. BarrettENR 1. Cr. M. & R. 933.

Several fishery — Navigable river — Grant from the Crown — Evidence.

132 LAW REPORTS (IRELAND). [L. It.. THE DUKE OF DEVONSHIRE v. NEILL AND FENTON.. Several fishery-Navigable river-Grant from the Crown-Evidence. 1. The statutes 8 Hen. 6, c. 16, and 18 Hen. 6, c. 6 (Eng.), extended to IreÂland by by 10 Hen. 7, c. 22 (Ir.), did not render an inquisition necessary where before these statutes it was not necessary ; the mischief pointed at by these statutes was the Crown granting to third persons lands seized under inquisiÂtions before the return of the inquisition [post, 145]. 2. Letters patent under the Great Seal are records, and valid before enrolÂment (post, 146). 3. Letters patent are admissible in evidence, without proof of the King's letter directing the grant [post, 147]. 4. A Commission, referred to in a patent confirming.the title of a subject to lands in Ireland, is admissible to show the authority and explain the position. of the Commissioners by whose advice the patent was granted, and it is no objection that the Commission was constituted by letters patent passed under-the Great Seal of England [post, 149]. 5. A copy of the enrolment of a deed of bargain and sale requiring -enrolÂment is secondary evidence of the deed [post, 150]. 6. The Plaintiff tendered in evidence certain proceedings in two possessory suits between the Plaintiff's ancestor and V., who each claimed to be entitled to a several fishery in the entire of that portion of the river in half of which the several fishery was claimed by the Plaintiff in the present cause, including the minutes of the decree (the original not having been found) whereby the Court' granted an injunction to quiet the Plaintiff's ancestor and V. in such possession as they had at the time of the filing of their respective bills being filed:-Held, (a) That the decree was evidence by way of reputation of the possession in fact of the several fishery at the time of the bills being filed, and that it was not necesÂsary to show it had been acted on by injunction [post, 152] ; (b) That, although the Attorney-General was not a party to the suit, the decree was admissible as evidence against the public, inasmuch as the subject-matter of the controversy in the suit and cross-suit, viz., the possession in fact of a fishery in a tidal river was a matter of public interest, although the particular question in the suit was in which of two private individuals the possession was [post, 153] ; (c) That the decree was not inadmissible, as made post litem motanz, as the right of the public, which was the matter in question in the present suit, was different from that which was controverted in the former proceedings [post, 156] ; (d) That there being evidence of the decree, the interlocutory orders were admissible to show what was done in the suit between the bills., and the decree [post, 1571. Tot. II.] Q. B., C. P., & EX. DIVISIONS. I33 7. The Plaintiffs tendered a document in evidence, dated 7th of July, 1733, Exch. headed "An account of weyers & nettes on the river Blaekwater, & in whose 1876. possession;" it was found among the muniments of title of the Plaintiff, but n OF was not signed by any person; the handwriting in which it was written was DEVONSHIRE not proved ; neither was it proved that the statements contained in it had been v. NEILL. adopted by the person from whom the Plaintiff derived title, against whose inte rest they appeared to be, or that they had been made by his authority :-Heldi that the document was not admissible in evidence, either as a declaration against interest or as evidence of reputation [post, 157]. 8. The Plaintiff tendered a document in evidence, dated 26th of August, 26 Eliz., which, after reciting a Commission under the Great Seal of England, diÂrected to certain persons therein named, granting them power by all modes to survey what honors, manors, lands, &c., in Ireland had or ought to have come to the hands of the Crown, by reason of the treason of the Earl of Desmond and others named, and to survey all the ancient possessions and revenues of the Crown in Ireland, stated that the Commissioners had seen and examined the honors, &c., which had come to the Crown by reason of the aforesaid treason; it was proved that the original of the Commission was not forthcoming :-Held, that the survey, having been prepared by public officers in reference to a matter .affecting the interests of the public, was admissible in evidence, though it had not been taken by a jury [post, 160]. 9. By charter of the 17th of John, His Majesty granted to F. and his heirs the custody of all His Majesty's demesnes in the county of W. and of the county of D., to have and to hold to F. and his heirs the custodies aforesaid :-Held, (1) That the meaning of the grant of the custody was to be learned by construÂing the charter by the subsequent user; (2) That, whether the grant of the custody was a grant in fee of the demesnes or a grant of an office which virtute "officii entitled the successive holders thereof to the possession of the lands, the charter entitled F. and his heirs to take possession of any several fishery comÂprised within the demesnes granted, provided it then existed as a several fishery, and was vested in the Crown [post, 162]. 10. Two entries were offered in evidence from the Close Rolls of 2 & 8 Hen. 3 ; both were commands of the King to the then Justiciary of Ireland, by which, after reciting that certain persons alleged they were wrongfully disÂseised of certain lands, he directed him to make inquiries, and, if the claim was right, to cause these persons to have full seisin thereof :-Held, not admissible in evidence, as being mere claims to the possession of lands, and not followed by judgments [post, 165]. 11. An abstract of what was termed an inspexinzus of certain deeds and writings enrolled in the Chancery of Ireland (contained in a document 200 ,years old, which appeared to be in the nature of an abstract of title), reciting, amongst others, two deeds of 15 Ed. 3, and 1 Rich. 2, and concluding by a statement that the Bishop and the Mayor and Corporation of Waterford bad •affixed their seals to the inspezinzus for the better credit and testimony of the 134 LAW REPORTS (IRELAND). [L. R. I. Exch. same, was produced from the muniment room of the Plaintiff, and tendered on 1876. his behalf as secondary evidence of two deeds above mentioned :-Held, OF inad- DUKE missible as evidence of the two deeds-(a) as the inspeximus related to lands to, DEVONSHIRE which the Plaintiff or his predecessors never had any title, it was not produced V. from the proper custody ; and (b), as no evidence was produced of the execn NEILL. tion of the two deeds referred to [post, 166]. 12. The exclusive right of fishing in tidal waters vested in the hands of the-Crown is no more than. an incident of the soil over which the waters flowed, as-affected by the exercise of the King's franchise of excluding the public ; and that right can exist in the subject as an incident to the soil, and not as an incorÂporeal hereditament [post, 168-173]. 13. Where a manor includes as parcel thereof portion of the bed and soil of a river, and, as incident to the property in such bed and soil, the exclusive right of fishing in the waters flowing over the same, such exclusive right of fishing is not a part of the prerogative or a flower of the Crown, and the Crown can lawfully re-grant it after forfeiture of the manor [ post, 175]. 14. Parol evidence is always admissible to show what existing thing corÂresponds to any particular description in a document ; but...