1833. The Mayor DENMAN C. J. I must say that, on looking to the general language used in this act, the words "in any part of England," and the twenty-ninth section, it struck me, at first, that the privilege given by the statute extended to all places but those excepted. But, on further consideration, both of the general purport of the act, and of the first, which is the operating clause, I am of opinion it cannot apply to places where, by local custom, the trade is restricted. It is true the second section empowers any person (with the exceptions there mentioned) to apply for and obtain a license; but, by the preceding section, that license only gives power to sell, any thing in any act or acts" of parliament to the contrary notwithstanding: it does not supersede customs. The twenty-ninth section does not relate to exclusive rights of selling, as exercised in particular places, but to the power of licensing which existed in certain jurisdictions, and which is preserved to them, although the like powers are abolished elsewhere. 66 LITTLEDALE J. The words of this statute, in the clause enabling parties to take out licenses, are, "any thing in any act or acts heretofore made, or in force at the time of the passing of this act, to the contrary in anywise notwithstanding:" there is no reference to local customs; where, therefore, such existed, this clause does not alter them. The act does nothing more in this respect than was done by former statutes: it only gives greater facilities in the case of persons not precluded by local custom from obtaining licenses. The second section, with the exceptions there laid down, is only a continuation of the first. As to the twentyninth, its object is only that the Universities and the Vintners' Vintners' Company should retain the privileges they before enjoyed, in regulating licenses within their respective jurisdictions. A distinction has been taken between this case and Simson v. Moss (a), because that arose upon a restraining statute; but there is nothing to shew that the present act was meant to have an enabling operation as to selling in particular places. PARKE J. I have had a strong opinion on this case from the first. Looking both to the preamble and the body of the act, I think the defendant's pleas cannot be supported. The preamble states, that "it is expedient for the better supplying the public with beer in England, to give greater facilities for the sale thereof than are at present afforded by licenses to keepers of inns, alehouses, and victualling-houses;" and then the enacting part of the section makes it lawful for any and every person who shall obtain a license for that purpose under the act, to sell beer by retail in any part of England, in any house specified in such license," any act or acts heretofore made to the contrary notwithstanding." That shews that the restriction which the legislature meant to take away was the parliamentary restriction imposed by former statutes; and this is consistent with the preamble and the title. The powers of the Universities and of the Vintners' Company, mentioned in the twentyninth section, are merely the jurisdiction, and privilege of licensing enjoyed by those bodies: they are not powers of the same kind as the right of exclusively selling, which exists by custom in certain boroughs, 1833. The Mayor of against BURGESS. 1833. The Mayor of PATTESON J. I am of the same opinion. It appears to me that this statute has nothing to do with the customs of particular places. If it had been intended to take away these customs, they might have been expressly noticed. The powers saved by sect. 29. are of a different nature. The first section enables any person licensed under the act to sell beer by retail in any part of England, in any house or premises specified in such license. The argument for the defendant would go the length of shewing, that a covenant in a lease not to sell beer on the premises, would be superseded by the statute. Judgment for the plaintiffs. The KING against Dame JANE ST. JOHN MILD- A copyholder MANDAMUS, reciting that the manor of Marvell, 7.988-202 in fee sur 2248-489 rendered to the afterwards, and admittance of the surrenderee, was convicted from time immemorial, had been an ancient manor, within which there were various copyhold te nements granted by and held of the lord or lady of the manor, according to the custom of the manor, and demised and demiseable by copy of court roll, accord ing to the custom of the manor, and that the lord or being a custom lady, and the steward for the time being, held customary in the manor that any tenant courts for the manor, and accepted, and of right ought of customary tenements, who to accept, all such surrenders of any of the said custom should commit and be convicted of felony, should forfeit his said tenements to the lord. Held, that the surrenderor, before admittance, was still tenant for the purpose of forfeiture; and that his estate was forfeited to the lord, and the surrenderee not entitled to be admitted, ary ary tenements as have been and are duly tendered for acceptance, according to the custom; and also of right ought to make re-grants of, and admittance to, such customary tenements as have been surrendered for that purpose, to persons entitled thereto, and to such intents as they might have required, and may require, according to the custom. It then stated that John Boyes, on or about the 4th of August 1830, then being one of the copyhold and customary tenants in fee of certain tenements of the manor according to the custom, did duly make a surrender in fee of the said tenements into the hands of the lady of the manor, to the use and behoof of H. Southwell and his heirs for ever, according to the custom of the manor, upon condition that, if Boyes should pay to Southwell the full sum of 500l. with 4 per cent. interest on the 4th of February then next, the surrender was to be void; that the surrender was taken out of court by the deputy steward, and duly enrolled at the next general court holden on the 26th of October 1830, and that Boyes did not pay to Southwell the sum of 500l. with interest, by reason whereof the same surrender remained in full force, and Southwell was entitled in pursuance thereof to be admitted as tenant in fee of the premises mentioned in the surrender; that application had been made to the defendants by Southwell to admit him, and that the defendants refused. It then commanded the defendants to admit him. The defendants by their return conceded generally the right of admission as stated in the mandamus, but alleged an immemorial custom within the manor "that, if any customary tenant of the said manor holding customary tenements in fee or otherwise, parcel of the manor, at the will of the lord or lady of S 4 the 1833. The KING against Lady JANE ST. JOHN MILDMAY. 1839. The KING against Lady JANE ST. JOHN MILDMAY. the said manor, according to the custom of the manor, should commit felony, and should be convicted thereof, he should forfeit his said customary tenements within the said manor to the use and benefit of the lord or lady of the said manor for the time being, and his or her heirs or successors for ever; that Boyes on the 4th of August 1830 duly made the surrender, and the same was presented; that after the said surrender and presentment thereof, Boyes committed and was convicted of felony, which conviction remained of record, and was not since reversed or set aside." It then set out the record of the conviction for feloniously stealing, taking and carrying away five sovereigns, and that the judgment of the Court was, that Boyes should be transported for seven years; that by reason of the commission of the felony aforesaid, and of the said conviction, the said copyhold tenements had escheated to the lady of the manor according to the custom, and, therefore, she seized into her hands the same, and could not admit Southwell to the same, as by the writ she was commanded. A rule nisi was obtained for quashing this return as insufficient, and for issuing a peremptory mandamus. The Court ordered the case to be set down in the special paper for argument, and it was argued (a) in last Hilary term by Dampier, for the crown. The lord cannot take advantage of a forfeiture between surrender and admittance, and a peremptory mandamus ought to issue. The surrenderor was possessed of an estate in fee. The return admits that the surrender was enrolled regularly, (a) Before Littledale, Taunton, and Patteson Js. and |