case filewood all versus palmer all see Robinson v Duleep Singh Ch d in court  master of the roll Lord chancellor Mr attorneygeneral for the defendant this  be the day for the defendant to show cause why a injunction shall not be grant  the plaintiff who be tenant of the manor of Walton upon Thames in the county  of Surre have bring this bill for a injunction to restrain the defendant from  dig clay to make brick from cut down the furze and hinder they from their  right of pasture in the waste of the say manor and from enclose the common  field the defendant Mr palmer who be lord of the manor grant a licence to the  defendant Lord Shannon a tenant of the say manor to dig for brickearth to  enlarge the office belong to his message within the say manor under which  licence he have dig up about two acre of the waste which consist of six  thousand and the plaintiff affidavit do not show that sufficient common be not  leave and they insist by their bill that they have a right to dig the soil and  take the turf for their message so that Lord Shannon as a tenant have a right  also to the brick to be expend on the premise the plaintiff say they have a  right of common in the common field from the time the corn be take away till  the land be sow again and that our enclosure which be only mosely report of  ten acre be a obstruction to this right whereas it will not take away or  prejudice it Mr palmer have only make a ditch and a fence on the side of the  road to prevent the cattle enter the say field as they pass to and from  Suckbury ferry which carry they from Middlesex to Surre and from Surre to  Middlesex and they be open in several place for the cattle to come in Mr will  the lord have certain a liberty to make brick in the waste if he do no injury  to the tenant and the statute of Merton h ch be in our favour by which the  lord may enclose if he leave sufficient for the tenant and if he may enclose  sure he may afterward do what he please with the enclosure and why may not he  use the same liberty in part of the waste without enclose for that will be  less damage to the commoner for the grass and furze will grow again and then  they will have the benefit of they whereas if these two acre have be enclose  they will have lose all advantage of they mosely report er p Mr fazakerly the  waste of a manor belong to the lord and lie be entitle to every thing in it  from which he be not exclude by the custom of the manor the plaintiff entitle  themselves to the pasture furze and turf but do not swear we have not leave  sufficient for they whereas they ought to have make out very clear that they  be prejudice the lord may exercise his dominion and enclose though the tenant  have a right in every part of it and if the plaintiff have bring a action  against the lord they must show by their declaration that they can not enjoy  the common in so ample a manner in the northern county the lord great estate  lie frequent in their waste and it will be the great injury to they if their  tenant can restrain they from dig for coal Mr solicitor general for the  plaintiff this bill be bring by the tenant to establish their custom and to be  quiet in the enjoyment of their common against encroachment and set forth that  as well the freehold as the copyhold tenant of the manor have a right of  turbary pasture and furze and that the dig for brick by the defendant be a  injury to this right and more prejudicial than if the lord have enclose so  much if pit be dig in the enclosure the damage reach no further but if they be  dig up and down in the waste they may prove very destructive to the tenant  cattle and these pit may be consider as a nuisance mosely report in the waste  and the defendant ought to be restrain from dig at least till they have put in  their answer we do not desire the enclosure to be abate but only a injunction  to prevent further and future enclosure and the lord can enclose though he  leaves gap here and there for the cattle because those be not so beneficial as  to have the field lie open but whatever right a lord who be owner of the  inheritance have the defendant be not such a one but only a lessee under the  grant of the crown so that what he be do he have no right to do and be  injurious to the crown and this court will take care that the right of the  crown shall not be prejudice by what mean soever the right appear to they mind  therefore will restrain the defendant by injunction from commit further injury  to the crown master of the roll I think the defendant have show good cause why  a injunction shall not be grant because it will be a prejudice to the lord who  be owner of the soil by the statute of Merton he may enclose against the  tenant and by the stat of westminst Edward ch he may approve against those who  have a right of common if he leave sufficient if he do not they have a proper  remedy against he at law but the plaintiff S in their affidavit do not swear  that there be not sufficient common leave I be not satisfy that injunction as  to land by the course of the court ought to be grant before answer unless the  defendant pray time or be in contempt only in two case to stay waste because a  writ of waste lie at commonlaw and to quiet a possession on the stat h ch  where the plaintiff have be in the actual quiet and peaceable possession for  three year last pass before the fill the bill and it seem to he that this  injunction can not be rank under either of these head and he think the court  shall be extreme cautious in grant extraordinary injunction before answer  especial for he remember a case where a injunction to stay work a colliery  till answer do irreparable damage the enclosure be a benefit rather than a  injury to the plaintiff then cur canc Lord chancellor as to the enclosure the  plaintiff have a right of common in the common field only by reason of  vicinage   light a     b the lord may enclose but if he have no right this  enclosure be a service to the plaintiff but the principal question relate to  the dig for brick if the court shall be hasty in grant mosely report these  injunction the lord can not open a I for fear the tenant shall file his bill  because he have a right to the turf the soil be the lord and the commoner have  no right to it or can take it away or kill a rabbit on it but be entitle only  to the herbage and that not exclusive of the lord unless by custom or in a  unlimited manner but only for the cattle levant and couchant on his tenement  and shall the court before answer restrain the lord from what be so clear his  right the plaintiff may bring their action but in this they must declare the  lord have not leave they sufficient common and he may prove and give in  evidence they have sufficient vern there the court be so far from grant a  injunction that the bill be dismiss and the plaintiff S leave to their remedy  at law and therefore I allow the cause and the order for the injunction must  be discharge vern and his lordship and the master of the roll agree that the  estate of the defendant can not be take notice of by the court the master of  the roll say that possible mosely report er p after answer if it appear the  lord be make a very unreasonable use of his ownership of the soil to the plain  damage of the tenant the court may grant such a injunction as be now ask but  he be not satisfy it ought to be grant before answer be the case what it will  Saturday may the that petition