CHAN. DIV.]

was a second manor there. (Domesday : Hampshire, fol. 41, Inquisition ad quod damnum, of the reign of Edward II. and return thereon.) There was a grant by the Dean and Chapter of Winchester in 1845 as lords of the manor-that of Bransbury. That was a grant of land within the parish. The test of ownership was, who had the right to the timber and the mines? (Busher v. Thompson, 4 C. B. 48.) The defendant had not established such a right. He put in a Parliamentary survey made by the Commonwealth Parliament in 1649 of Bransbury Manor. The survey was admitted in evidence in Payne v. Ecclesiastical Commissioners (30 Times L. Rep. 167). The common fields referred to in the inclosure award were something quite different from manorial commons. They were part of the old village communities : (Williams on Commons; Attorney-General v. Parsons, 2 Cr. & I. 279). As to the grant of free warren, there was no doubt that it was in gross. It did not pass under the grants of 1301 and 1576, and became extinct (Elton on Copyholds, p. 239; Morris v. Dimes, 1 Ad. & E. 654). The award did not give the defendant any new rights. It could not be said that the right had been acquired by prescription: (Lord Carnarvon v. Villebois (sup.). Pickering v. Noyes, 4 B. & C. 639) was similar to this case, and it was there said that such a right as was here claimed must be very strictly proved, and that it was a mistaken notion to suppose that the lord had such a right. That was a case of prescription. Sowerby v. Smith (sup.) showed the effect of an inclosure award, and it was there held that the right of the lord to shooting was not included.

The rights claimed were expressly excluded by the inclosure award. Territorial right was not claimed here. That was the plaintiffs' case down to 1757. From that time onwards the case was different.

He referred to the Prescription Act of 1833, sect. 1. The rights could not possibly be claimed by prescription under the Act. The defendant could not claim a franchise; it must be a profit à prendre in alieno solo. A man could not formerly shoot even on his own land, because shooting rights formed part of the King's prerogative. There must have been a grant express or presumed. The prerogative was gone by the beginning of the last century, but in theory of law, although modified, it still existed. In 1832 the last nail was driven into the coffin of that prerogative: (Lord Chesterfield v. Harris, 99 L. T. Rep. 558; (1908) 2 Ch. 397). Gover said that he could not rest his case, having regard to the authorities, on an appurtenant profit à prendre quite apart from the question of free warren. The right to the shooting rested on free warren either by grant or prescription. With regard to the fishing, the Crown originally granted the soil of rivers in a manor to the lord, and that was why the right was in him: (Duke of Devonshire v. Pattison, 58 L. T. Rep. 392; 24 Q. B. Div. 263). It was impossible for the plaintiffs to say that their farms were not within the ambit of the manor.

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As to common fields, the manor was of the essence of their existence. He was willing to admit, however, that the manor was not quite coterminous with the parish. If the plaintiffs' lands were ancient freeholds they must have been in existence before the statute of Quia Emptores in 1290, and that was before the defendant's grant. The Prescription Act did not affect existing rights which the defendant had. His had been such a user as would give rise to a presumption in favour of prescription. Cur. adv. vult.

March 22.-EVE, J.-The object of this action and of the overt acts which led to its institution is to settle a long-standing dispute as to the alleged exclusive rights of the defendant to shoot over certain farms belonging to the plaintiffs and to fish in one half of the river Test and the branches thereof so far as they abut on the plaintiffs' farms. The defendant is lord and in possession of the manor of Barton Stacey in the parish of the same name, and it is in that character he claims the rights I have just mentioned. The plaintiff Hodgson is the owner in fee of three farms and the other plaintiff is the owner of one farm, and all the farms are situate within the parish. No evidence being forthcoming of the ambit of the manor, the defendant resting his case on the presumption that the manor and the parish were coterminous, asked the court to hold that all the farms were within the manor, but the presumption was rebutted by evidence produced by the plaintiffs, proving that there existed another manor within the parish, and that one farm was within that other manor. On the other hand, the defendant has proved that the other three farms lie wholly within his manor. I think that this point is concluded by the agreement of 1755 leading up to the award of 1756, and by the Act 30 Geo. 2., No. 17, confirming both.

The defendant, on whom it was admitted lies the burden of establishing the rights he asserts, bases his claim to the sporting rights, first, on a franchise of free warren appurtenant to the manor granted by the Crown to John de Berewyk on the 21st Jan. in 30 Edw.1 (1301-2) and, alternatively, on a like grant from the Crown which has been lost, but the existence of which must be presumed from immemorial enjoyment.

The question at once arises whether the grant of 1301-2 can properly be construed as a grant of free warren appurtenant to the manor. In my opinion it cannot; it is in words, if not identical with, at least indistinguishable from, those quoted in the judgment of Littledale, J. in Morris v. Dimes (sup.). There was certainly a grant of a warren in gross, and Mr. Justice Taunton in that case said: The grant is that of a warren in gross, that is of a naked, bare right not annexed nor appendant or appurtenant to anything else," and he then proceeds to point out that a conveyance of the manor with its appurtenances, and even with the addition of general words, including the word "warren," would not include the warren in

question because nothing would pass except what appertained to the manor. I hold the grant of 1301-2 to be a grant of a warren in gross and no title to this has been deduced by the defendant.

The grant of this franchise does not, however, preclude the defendant from establishing by prescription a warren appurtenant to the manor. The question is, Does the evidence he has tendered prove such an enjoyment of the right he claims the exclusive right of sporting over the freehold tenements of the plaintiffsas to raise a reasonable presumption that the enjoyment is referable to a legal origin? The defendant has traced the title to the manor from a bargain and sale in May 1576, and he asks the court to infer that by that time the sporting rights had become appurtenant. In my opinion | there is not only nothing in the earlier dealings with the manor to support this inference, but the absence of all reference to the existence of any such right in the agreement and award of 1755-6 is almost conclusive against there being any justification for making it. Is this conclusion negatived or weakened by any modern enjoyment by the defendant and his predecessors, or those claiming under them, as lessees or tenants of the manorial sporting rights? I think not. No doubt a claim of more or less nebulous character was put forward from time to time by the lord or lady of the manor and I am content to accept the view that now and again a gamekeeper of the manor in the employ of the lord or his sporting tenant fired off a gun on one or other of the farms in purported exercise of the right, but even if there were no contemporaneous acts on the part of the owners and occupiers of the farms not only entirely inconsistent with any recognition on their part of the existence of any such right but directly challenging it, conduct such as this would not constitute enjoyment of such a nature as to warrant the presumption of a lost grant.

It has been proved that for at least thirty years past the shooting over the farms has been systematically let by the successive owners and occupiers for substantial rents to tenants who have regularly and openly exercised their rights as shooting tenants without let or hindrance on the part of the lord of the manor. It is true that several of these shooting tenants were also tenants of the manorial shooting, and it was argued that their shooting over the farms was referable to their title as tenants of the lord of the manor; but this argument involves the almost impossible conclusion that they were content to pay two rents for the same shooting, the one to the lord and the other to the owners and occupiers of the farms, the latter being in the nature of a gratuitous payment to avoid any attempted interference with their sport. I cannot adopt any such view, nor would it avail the defendant if I did, seeing that in such circumstances the acts of the shooting tenants would be of too equivocal a character to be regarded as the assertion of a right. I have no doubt that there has existed for some years some tradition with reference to the lord's

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right of sporting over the freeholds of the manor, but it has been systematically ignored, and in practice wholly disregarded, and no serious attempt to assert it has ever been made until shortly before the commencement of this action. It may be that the tradition owed its origin to some information extant about the franchise of 1301-2; but, be this as it may, the defendant has completely failed to prove the existence of the right which he claims, and he cannot, therefore, justify the acts which gave rise to these proceedings.

What I have said about the shooting rights applies with even more force to the fishing. The defendant, in the stress of this part of the case, caused by the decision of the House of Lords in Chesterfield v. Harris (sup.) was ultimately compelled to rely on a prescriptive title founded on a lost grant of the bed of the river and its branches as a separate tenement. Nothing was produced in the way of documentary evidence, and no oral testimony of enjoyment was forthcoming to support this rather fanciful presumption, and herein again the defendant has failed to make good his claim.

The conclusions which I have stated are those at which I had arrived when the hearing of the case was finished, but in deference to the elaborate and exhaustive manner in which the case was placed before the court on both sides and the extreme care with which counsel for the defendant explored every avenue calculated to lead to discoveries in support of his client's claims, I thought fit to reserve my judgment, and I have availed myself of the intervening period to go through the documentary and oral evidence once again.

The plaintiffs are entitled to the declaration which they ask by par. 1 of their amended prayer; the defendant must pay the costs, and there will be liberty to the plaintiffs to apply for an injunction and generally.

Solicitors Carleton Holmes, Fell, and Wade; Chapman-Walker and Shephard.

APPEAL against sentence and application for leave to appeal against conviction as a habitual criminal.

Appellant pleaded guilty at the West Riding (Wakefield) Sessions on the 10th April 1923 to a charge of housebreaking and afterwards pleaded guilty to being a habitual criminal. The material facts appear from the judgment. The appellant in person.

T. P. Perks for the Crown.

Lord HEWART, C.J.-The only question is whether it is necessary on all the facts that this appellant should be sentenced to preventive detention. The grounds stated in the notice were that appellant had been previously convicted as a habitual criminal and was an associate of thieves. The appellant had therefore no answer to the charge. He is forty-five years of age and has been convicted nine times. He was released from custody in Jan. 1916 and from June 1916 to Jan. 1920 he was in honest employment.

A word must be said upon the procedure which was followed at the trial-a procedure not such as is approved by this court, nor followed in other courts, and a procedure which ought not to be followed.

After the prisoner's plea of guilty to the charge of housebreaking, counsel for the prosecution said that there was a charge against the prisoner of being a habitual criminal, but that he could not proceed with that charge unless the chairman first sentenced appellant to three years' penal servitude. Counsel for the prosecution then called witnesses with reference to appellant's previous convictions and character, and counsel for the appellant addressed the court, putting forward reasons why he should not be sent to penal servitude. If that procedure is followed, the jury, and other jurors waiting in court, may hear all that is relevant about a prisoner's antecedents given to enable the court to decide whether a sentence of penal servitude should be imposed. All kinds of statements adverse to the prisoner and relevant to his punishment may be given in evidence in the presence of those who, on different and more limited grounds, may afterwards be called upon to decide whether he is a habitual criminal. Here no particular mischief was done, because the prisoner pleaded guilty; but the method is a faulty method and may be highly prejudicial to the accused. It is also a waste of time. It was never intended that the persons who, upon the particular grounds set out in the statute, might have to decide, in a contested case, whether a prisoner was a habitual criminal or not, should have in their minds all the material necessary to enable a court to decide whether a sentence of penal servitude should be imposed. In Rex v. Turner (102 L. T. Rep. 367; (1910) 1 K. B. 346; 22 Cox C. C. 310) the question was asked: "Should the sentence on the first counts of the indictment have been given before the prisoner was placed on his trial as a habitual criminal? " and Channell, J., in delivering

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judgment, said: "The court is clearly of opinion that the answer is in the negative. The facts which are to be proved on the charge of being a habitual criminal are the same as those with reference to which the court at a trial always desires information before passing sentence, and it is therefore impossible that the Legislature could have intended that sentence must be passed before those facts are inquired into."

That is one aspect of this case.

Also it appears that, notwithstanding a previous conviction as a habitual criminal, appellant for three and a half years led an honest life, and it does not follow that because a man is found to be or admits he is a habitual criminal, he must be sent to preventive detention, especially where the whole gravamen of the charge is a previous conviction as such. Looking at appellant's efforts for three and a half years to lead an honest life, the court thinks the sentence of three years' penal servitude ought to stand, but that there is not sufficient reason to add the sentence of preventive detention.

Sentence of preventive detention quashed. Counsel for the Crown instructed by the Director of Public Prosecutions.

Charges against

Criminal lar Practice prisoner already undergoing sentence. Where there are other charges against a prisoner under sentence, they should be proceeded with with all due speed and not be left to await prisoner's release.

APPEAL against sentence.

Appellant was charged at the Middlesex Sessions upon two indictments, the first charged him with stealing from a dwelling-house on the 11th April 1921, the second with larceny on the 26th Feb. 1923. Appellant pleaded guilty to the second indictment and was sentenced to five years' penal servitude. He pleaded not guilty to the first indictment and asked that he should be tried upon it, but the learned chairman refused and ordered it to remain upon the file.

J. W. Morris for the appellant.
W. Higgins for the Crown.

Lord HEWART, C.J.-This appellant pleaded guilty at the Middlesex Sessions to a charge of stealing a clock and he was sentenced to five years' penal servitude. He now appeals against that sentence, and it is to be observed that another indictment to which the appellant pleaded not guilty was ordered to remain on the file.

(a) Reported by J. N. FLETCHER, Esq., Barrister-at-Law.

With regard to the charge upon which the appellant pleaded guilty, the facts very shortly were that upon the afternoon of the 26th Feb. the verger of a church in Wood Green saw the appellant leaving the church (the church being at the time open) and the appellant was carrying a parcel. The verger went to the church and missed a clock, which was valued at 21., from the wall, and he thereupon went after the appellant who was still carrying the parcel and caught him up. The verger took the parcel, which contained the clock, and a police constable was called and the appellant was taken into custody. On being searched there was found upon him thirty-eight keys, two screwdrivers, a pair of pliers and two pairs of gloves.

The appellant is sixty-seven years of age, and has been previously convicted nineteen times. It is not necessary that I should review those convictions which go back to the year 1890, and include several sentences of penal servitude and more than one sentence of police supervision. His last sentence, however, was passed in Oct. 1921, when he was sentenced at Birkenhead Sessions to twelve months' imprisonment for housebreaking. From serving that sentence he was released on the 19th Aug. 1922, which was just six months before the committing of the offence which he admitted at the Middlesex Sessions.

With regard to the other indictment the facts, so far as one can ascertain them, appear to be these. It is an indictment for a larceny alleged to have been committed on the 11th April 1921. Although the indictment had to do with an offence said to have been committed on the 11th April 1921, it is said, and of course the court accepts the statement, that it was not brought to the knowledge of the learned Recorder at Birkenhead when he sentenced the appellant in Oct. 1921. But, however that may be, when the appellant had gone to prison to serve the sentence which he then received, the police do not appear to have made any attempt then to proceed upon that indictment.

As has been laid down again and again by this court-within my personal recollection more than once during the past fourteen months-the police, if they wished to proceed with the charge should have proceeded with it with all due speed while the appellant was serving the sentence passed at Birkenhead. That that is the correct course and is obviously the only humane course, apart from circumstances of a special and peculiar character, was stated clearly in the circular of the Home Office of 1906, and it has been approved again and again by this court. Now what happened in the present case as far as can be ascertained is this. The police do not appear to have taken any proceedings at all upon or with reference to that indictment until after the appellant was arrested for larceny of the clock. The depositions in the latter case were taken on the 27th Feb. and on the 9th and 16th March. The depositions in the case

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relating to the 11th April 1921 were not taken till the 16th March of this year, and at the sessions and in his notice of appeal the appellant complains that in the course of his life he has many times in the past been arrested upon leaving prison and been charged with offences committed before he went to prison. At the sessions he asked again and again, sometimes by implication and once in the clearest terms, that this second indictment going back to April 1921 should be tried. It was not tried. It was ordered to remain upon the file, and it was said that the appellant could not be arrested on that charge without the leave of the court. What is the authority for that statement I do not know. At any rate the appellant was not tried upon that charge. A plea of not guilty was not accepted, and once more, therefore, there remains a charge upon which this man may be proceeded against at the conclusion of the sentence which he is to serve.

This court, in the circumstances, directs that that second indictment be never proceeded with.

With regard to the sentence of five years' penal servitude, we think upon the whole that it may be suitably reduced to a sentence of three years' penal servitude.

Sentence reduced.

Criminal law-Practice-Indictment-Charge of stealing Articles stolen should be described in detail---Applicants appealing from decision of judge refusing leave to appeal-Unnecessary repetition to the court of statements already made to the judge.

In an indictment charging a person with stealing, the articles stolen should be described in detail. When applying for leave to appeal, an applicant should not submit to the Court of Criminal Appeal a statement repeating the matters already submitted to the judge who refused his application, as the statement made to the judge is already before the court.

APPLICATION for leave to appeal against sentence.

Applicant was convicted at the Hertfordshire Quarter Sessions of burglary and garage breaking and was sentenced to five years' penal servitude.

No counsel appeared.

Lord HEWART, C.J.-In this case there are two observations which the court has to make. The first is that in each indictment the applicant (a) Reported by J. N. FLETCHER, Esq., Barrister-at-Law.