Page:The English Reports v1 1900.pdf/507

On the first of July 1720 the cause was heard before the Lord Chancellor Parker; when, upon reading the agreement of the 8th of April 1668, and the proofs in the cause, his Lordship declared, that it appeared, that the appellant and those under whom he claimed, had enjoyed the benefit of the agreement for fifty years, and had abated in their rent for the tythes £7 per ann. to support the same; and that the appellant's plowing up his land, [168] contrary to the agreement, was not a waiving the agreement, though it was a prejudice to the other parties, who did not plow up their lands; and therefore it was ordered and decreed, that the said agreement should be performed for the remainder of the 99 years; and that the appellant should pay the respondents their costs of suit, to be taxed by a master.

The appellant being dissatisfied with this decree, appealed (T. Lutwyche, S. Mead) and in support of the appeal it way insisted, that the respondents, in their suit below, did not make parties to the bill all persons who were concerned in interest in the said Westfield, as they ought to have done; for unless all parties interested are bound, no inclosure, or alteration of a common field, from arable to pasture, or of the common thereunto belonging, can be effectual, or of any use, nor can such agreement be executed. That the Lady Wilbraham was no party to this agreement, nor did it seem intended that she should have been a party, the articles purporting to be made between the inhabitants of Charlton only; whereas, both Lady Wilbraham and Ralph her son, under whom the appellant claimed, lived far remote from thence, in the county of Chester, at the time of making these articles; and John Jarvis, John Lucas, and one Peckover, who then had lands and commons in the said Westfield, never signed the articles; and as for that reason these persons were not bound by the articles, they ought not to be carried into execution. That the said John Turland could not be understood to sign these articles by any authority from the Wilbrahams, since no such authority was proved to have been given, nor appeared by the articles; and the especial manner of his signing the same, so far as he had power, was most properly to be understood with respect only to his own interest, as an inhabitant of the said town of Charlton, and tenant of Lady Wilbraham's farm there. But though this Turland might sign the articles as an under-bailiff for the Wilbraham family, who lived too remote from the place in question; yet, from thence to infer, or allow him a power to bind the inheritance of his landlord for 99 years, was a power very dangerous to be allowed to a tenant, upon pretence of his being a steward or bailiff. That these articles were not held to be binding, even by the parties themselves, as appeared by all of them, except two, having within thirty years past, plowed up again all their respective arable land, so laid down for a cow pasture: and as some of the respondents had first broke this agreement by plowing and continuing to plow in Westfield, for about twenty years, they ought not now to have a specific performance thereof. That the establishing the said alteration, from arable to pasture, and the usage of the common for so many years yet to come, tended inevitably to destroy the proof and evidence of the respective proprietors of land in Westfield, and of their ancient prescriptive right of common there, which could only be preserved by continual usage; and the ancient boundaries of these proprietors, which lay intermixed in the field, would shortly be in manifest danger of being lost and confounded, for want of ascertaining the same by constant tillage, as before was used. That the appellant [169] was decreed to pay the respondents their costs, although some of them were the first who broke the agreement; and although the articles had been waived, or at least not complied with, for about twenty years before filing the bill. That two objections had been chiefly relied upon against the appellant, viz. that he had enjoyed his Lammas Closes free from inter-common; and that those under whom he claimed had abated £7 per ann. in the rent of their tythes, to support the agreement.—To the first of these objections it was answered, that it no where appeared, by the proofs in the cause, that the respondents claimed, or were interrupted or disturbed in their enjoyment of common in the appellant's closes at commonable times; or that he knew those closes ought to be commonable at Lammas: but, on the contrary, the appellant had, by his answer, denied any knowledge of this matter, and had offered to lay the said closes open at Lammas, if it should appear by any proof that they used and ought so to be.—And as to the other objection, it could not reasonably be intended, that this abatement was made to support the articles; for at the time