1833.

The Bailiffs of GODMAN

CHESTER

against PHILLIPPS.

right ought, &c. for themselves, their tenants, and occupiers of the said last-mentioned messuage, being freemen of the borough of Godmanchester aforesaid,” a certain right of common of pasture in, upon, and over the said close in which &c. amongst other the open and common fields, commonable places, &c. within the said parish; and that the said close, in which, &c. called the West Common, at the time of the making of the act, was part of the open and common fields, &c. in the parish of G. in the said act mentioned. The plea then stated the making of the award and a schedule thereto, in which the commissioners inserted the messuage in this plea mentioned as one in respect of which the owner might stock upon the said West Common (being the locus in quo) during the times mentioned in the award. The defendant then justified under the act and award, as before; not stating himself to have been a freeman. The ninth and tenth pleas did not differ materially from the fifth.

Replication to the fifth plea, that at the time of the making of the act, "the owner and proprietor of the said messuage, now of the said defendant in the said plea mentioned, had no other or different right of common of pasture in, upon, and throughout the said common, called the West Common, mentioned in the said act of parliament, than in respect of his being a freeman of the borough of G. aforesaid, and occupier of the said messuage, and not in respect of his being occupier only of the said messuage; and that the said defendant, at the said several times, when, &c. in the said declaration mentioned, was not, nor is a freeman of the said borough." There were similar replications to the sixth, seventh, ninth, and tenth pleas. The replication to the eighth

plea,

plea, after reciting the clause of the act (antè, p. 200.) directing the commissioners to award common of pasture out of the East and West Commons, as a compensation for the rights of proprietors of commonable messuages, went on as follows: "And the plaintiffs in fact further say, that under colour and pretence of the said enactment in the said act of parliament hereinbefore mentioned, the said commissioners awarded, and in the schedule to the said award did insert and specify, so far as respects the said messuage now of the said defendant, in manner and form and to the effect in the said eighth plea of the defendant in that behalf expressed; and the said plaintiffs further in fact say, that the said defendant, at the said time when, &c. in the said declaration mentioned, was not, nor at any time before or since hath been or is, a freeman of the said borough of G."

Rejoinder to the replication to the fifth plea: That the owner and proprietor of the messuage in that plea mentioned, before and at the time of the making of the act, had not a right of common of pasture in and upon and throughout the said West Common, in respect of his being a freeman of the borough of Godmanchester aforesaid, in manner and form, &c. Conclusion to the country.

General demurrer to the replications pleaded to the sixth, seventh, eighth, ninth, and tenth pleas. Joinder in demurrer.

General demurrer by the plaintiffs to the rejoinder to the replication to the fifth plea. Joinder in demurrer. The demurrers were argued in last Easter term.

B. Andrews for the defendant. The replications demurred to are bad, as tendering immaterial issues. The

question

1833.

The Bailiffs of GODMAN

CHESTER

against PHILLIPPS.

1833.

The Bailiffs of GODMANCHESTER against PHILLIPPS.

question cannot now be raised whether, previously to the award, the rights of common were in the freemen, as such, or not. The award under the act of parliament is now conclusive; the old rights, whatsoever they were, are gone, and new ones substituted; and it would be very hard that the original right should be enquired into after so long a time as has now elapsed. There must be a limit to disputes; and the only way to affix it, in this case, is to say that the award, made under the act, must be final. In Phillips v. Maile (a), where the same question was raised under this act in the Court of Common Pleas, Tindal C. J. said, "We are of opinion that the original right of common, for which a new right has been substituted by the act, was not intended to be traversable, except in the way prescribed by the act." And the Court held the award conclusive. The plaintiffs here contend that the original right of common was solely in the occupiers of these messuages, being freemen; that the pleadings admit this; that the defendant was not a freeman; and therefore that the award, as to the common claimed in respect of the messuage in question, is void. [Parke J. The argument, I suppose, will be, that the commissioners had power only to set out common, over which the former commoners were to exercise their right, but that they were not to adjudicate who were or should be entitled.] They were to make the allotment, whether the owners of the several messuages were, at the time, freemen or not. If they were not so at the time, they or their children might become so; the right before latent would then be called into operation. [Parke J.

(a) 7 Bingh. 133.

The

The act does not provide for a specific allotment to be
made in respect of particular messuages; the commis-
sioners are only empowered to ascertain a right, to be
exercised by the proprietors of commonable messuages,
subject to a stint.] The defendant here was the owner
of a commonable messuage, and the award (to which a
schedule of particular messuages is annexed) gives the
West Common allotment to "the owners and proprietors
of commonable messuages." [Parke J.
"Having
right of common on the West Common aforesaid."] If
the award did not give the new right of common to all
who were proprietors of commonable messuages at the
time, the inclosure alters their situation for the worse.
Before the award was made, they might, at all events,
have acquired rights of common by becoming freemen
as well as occupiers, but now, according to the argu-
ment used, if they were not freemen at the time of the
award, it finally excludes them from the right. Sup-
pose the commoners had released their rights to the
corporation, in consideration of a substituted right,
which had been 'granted in the terms of this award,
could the corporation afterwards have repudiated the
grant, and said they only meant it to extend to owners
of commonable messuages, "being freemen ?" The
argument on the other side would tend to admit parol
evidence in explanation of an act of parliament. If the
original rights may be enquired into now, the award
is not binding and conclusive, though it has not been
contested within the time and in the manner directed
by the act; and it clearly might have been so contested,
on the point now raised. [Farke J. They will con-
tend that the award is only final so far as the commis-
sioners had jurisdiction.] They had jurisdiction over

the

1833.

The Bailiffs of GODMANCHESTER

against PHILLIPPS.

1833.

The Bailiffs

of GODMANCHESTER against PHILLIPPS.

the subject matter, and have made their allotment in unequivocal terms. It may be supposed that, at the time of the award, there might have been only one or two owners of commonable messuages who were freemen; and it cannot be contended that, in such a case, the benefit of the allotment must have been confined to them. If the defendant's title, in this case, be not established by the award, all the claims of common founded upon it are likewise set loose, and all the rights which it gives liable to be disturbed.

Kelly contrà. Although the defendant is not a freeman, it may be assumed that the person who held this commonable messuage, at the time of the award, was one; and if all the occupiers at that period were in the same situation, there would, of course, be no appeal against the allotment. The questions are, first, whether the commissioners had authority, under the act, to award rights of common to a totally different class of persons from those entitled before; and, secondly, whether they have, in fact, exercised such a power. There are no words in the act itself, giving power to conclude parties as to the rights then existing. It only refers generally to rights already in existence, empowering the commissioners to give equivalents for them, but not to determine the nature or extent of the rights. Certain persons, being freemen, have common on particular lands; the commissioners are to substitute other lands for these, to be enjoyed by the parties who had the former right, in such manner and at such times as the commissioners shall direct. And that is done by the award. The commissioners allot common pasture to be used by the owners and proprietors of commonable messuages, and their

10*