be understood that the right of pasture was subservient to the manorial rights of the lord. The generality of the terms relied upon, will not deprive the lord of his rights; and it appears to me that the act left the rights of the commoners precisely where they stood before. At the time the act passed he was in the exercise of his right to dig for stone, and since that time he appears to have enjoyed it, and therefore I think there is no ground for disturbing the verdict. BAYLEY, J.-It is admitted that the lord was in the habit of digging for stone, both before and after the act passed. That is therefore a contemporaneous exposition of the act, and shews that the lord's right to dig for stone continued. If the lord has constantly from time to time been in the habit of digging for stone, the presumption is, that the commoners continued to enjoy the right of common subject to the rights of the lord. The statute relied upon, would only give the plaintiff a right to the herbage, but it will not destroy the lord's right to minerals. The exercise of the lord's right may injure the herbage for a time, and so long as stones are wanted to mend the roads. To whom does the stone belong? If not to the plaintiff, it must belong to the lord; for it cannot be said that the statute in question can be construed so as to give the commoners the stone and minerals. If the lord were to exercise the right of taking stone wantonly, so as unnecessarily to interfere with the commoners' right of pasture, he would be liable to an action; but if he acts. honestly and bonâ fide in getting stone as occasion requires, then I think he is not liable to any action. The other judges concurred. 1824. PLACE v. JACKSON. Rule refused. 1824. Saturday, lords of the manor, and owners of the Guildhall within the borough, and by a charter of P. and M. power was granted to them to hold manor courts in the Guildhall, twice in every year, as of ancient time, and until The KING v. The BAILIFFS and BURGESSES of the The bailiff and THIS was a return to a mandamus which had issued to 1810 such courts had been time immemorially held. In that year commissioners, under an inclosure act, awarded to Lord H. all the said manor, with the rights, members, courts, view of frank gesses the Guildhall, &c. Held, that this exception did not exclude the new lord's right to hold his manor courts in the Guildhall. clusive use and enjoyment thereof; that Philip and Mary (a) Vide ante, vol. ii. 724. 1824. THE KING v. and did, by their charter, grant to the said bailiff and burgesses of the said borough, and to their successors, to have within the said borough and the liberties and precincts of the same, for ever thereafter, view of frankpledge of all the burgesses, The BAILIFFS inhabitants, and resiants within the said borough, and the BURGESSES suburbs and liberties thereof, twice by the year, in the of ILCHESTER. Guildhall of the said borough, to be holden at such days and times as to them should seem fit and necessary, as of ancient time had been used; that by an act of 47 G. 3., entitled an act for inclosing lands in the parishes of Ilchester, &c., after reciting that there was a certain commonable meadow called Ilchester Mead, and that the proprietors of the several parcels of land lying within the same, were entitled as in the said act mentioned, and that the bailiff and burgesses of the borough of Ilchester were lords of the manor of Ilchester, and of the soil of the said commonable meadow." It then set out the appointment of a commissioner under the inclosure act, with power to him to set out, allot, and award any lands, tenements, and hereditaments within the parish of Ilchester, in lieu of and in exchange for any other lands, &c. within that or any adjoining parish, provided that all such exchanges were specified in the award, and made with the consent of the owners of the lands exchanged, whether bodies politic, corporate, or collegiate, or other; and with directions to him to make and publish his award within certain specified periods. It then proceeded to state" that the commissioner on the 19th June, 1810, duly made and published his award, and did thereby set out, assign, and allot to Lord Huntingtower, all that the manor of Ilchester aforesaid, with the rights, members, courts, view of frankpledge, profits of tolls of all markets and fairs held within the borough of Ilchester, royalties and appurtenances to the same belonging (excepting to the said bailiff and burgesses, and their successors, the Guildhall, houses, buildings, court or garden belonging to the same, and the ground in front thereof inclosed with iron chains, and also except the allotments thereinbefore made to them, and also divers quit 1824. The KING 0. rents, as in the award mentioned) which said manor, tolls, and quit-rents were late the property of the said bailiff and burgesses, and were by their consent assigned and allotted The BAILIFFS in exchange, and which said manor, tolls, and quit-rents BURGESSES of were by the said award expressed to be thereby assigned ILCHESTER. and awarded to the said Lord Huntingtower in fee, in ex and change for a fee-farm rent of 87. in the said award mentioned, and for the land which he held in fee in the said commonable meadow given up by him, and therein before assigned and awarded to the said bailiff and burgesses; and, that within the said manor and town of Ilchester, there were, and from thence hitherto have been and still are, divers public houses, the property of the said Lord Huntingtower, at which the courts-leet of the manor might have been and still may be duly and conveniently held, and near to the said Guildhall, wherefore we have not permitted and suffered the said Lord Huntingtower, the lord of the said manor of Ilchester, to hold his court-leet and view of frankpledge for the said manor, at and in the said Guildhall of the said borough, or restored to him the use of the said Guildhall for the purposes aforesaid." D. F. Jones now moved to quash the return, and for a peremptory mandamus. By the comnron law, the lord has a right to hold his court in any convenient spot within the manor, unless either immemorial custom, or the provisions of a charter, have so far sanctioned the selection of a particular place, as to render it compulsory upon him to hold it there; in which case the right must, of necessity, extend to that particular place. Then, first, is there any ancient custom, which sanctions the holding the courts-leet of this manor in the Guildhall of the borough? It has been most satisfactorily shewn that there is, and that it obtained before, and at, and after, the creation of the charter. But it will be argued, that this is only a privilege, and may be waived, and Rex v. The Mayor of Wigan (a) will be relied on, as an an(a) 1 Wils. 76. 1824. The KING v. and thority to shew, that the holding a court-leet in any other place than where it has usually been holden, is not a sufficient ground for a mandamus. That case, however, will not support the principle contended for. In the first place, the The BAILIFFS decision of the Court there, was not unanimous, for it was BURGesses of said by Chapple, J., " I can see no objection why we should ILCHESTER. not grant a rule to shew cause."-" But," adds the reporter, "the rule for a mandamus was denied by Wright and Dennison, Js., contrá Chapple, (absente C.J.) there never having been a precedent of such a rule." In the next place, the right there claimed was not founded either upon a charter, or upon an immemorial custom; the only argument adduced in support of it, being the necessity of it. Here, the right claimed is the subject of grant by an ancient charter, which, by that very grant, sanctioned a previous custom of holding the court-leet where the lord now claims to hold it, and which has ever since its creation been, in its turn, confirmed by an uniform adherence to that custom. The main objection there raised by the Court, namely, the absence of a precedent, is now likewise removed, because in Rex v. The Corporation of Grantham (a) a precedent is to be found, that being, as is shortly stated in the marginal note, a damus to permit a court-leet and court-baron to be held in the accustomed place." It follows therefore, that whether there is, or is not, a necessity for holding the court-leet in the Guildhall, still the lord may hold it there if he chuses; he has the right to do so; and the probability certainly seems to be, that by doing so, he will best consult the convenience of all parties concerned. Besides, what is the intent and meaning of the exception in the award of the manor to Lord Huntingtower, "excepting to the bailiffs and burgesses the Guildhall?" The award is founded upon an exchange of property, and the exception was plainly intended to apply to the property in the building only, leaving unimpaired to the proprietor, every ancient right or privilege which he had previously possessed in the manor. The right of the lord to man |