BIDDLECOMBE versus KERVELL Friday that Feb stat and W c for the preservation  of timber in the new forest explain this be a action of replevin upon a  distress of hog take in the new forest in Hampshire the defendant make  conusance as bailiff to the king and justify the take the hog c as damage  pheasant in the say new forest in the king soil plea in barFor that though the  soil be the king yet the king James grant to the earl of Southampton c a right  of common for c and pannage for hog c within the same forest c at all time of  the year as well in the fence month as at other time c except c then it deduce  the title to c in who the right be at the time of make the statute of and W c  intitled An Act for the increase and preservation of timber in the new forest  in the county of Southampton and set forth that enclosure of acre be make  agreeable to the Act but not of any more than one thousand acre burrow it then  deduce the title down to the duke of Montague and show a demise from he to the  plaintiff under which he claim a right of common and pannage in those part of  the new forest which be not enclose and show enjoyment thereof accord and  therefore conclude that the defendant take they de in an unjust manner svan  not common with others c the replication of the avowant admit the original  right of common and pannage to have be as state but rely on the clause in the  Act that every person have any right of common of pasture or pannage or any  privilege within the say forest or any part thereof shall enjoy the same for  the future in manner follow videlicet their say right of pannage between that  September and that November yearly vide post S p accord Goodright ex dismiss  Methold v Noright may and Fenn ex dismiss Terrel et all v den that may post  this statute S give the king liberty to enclose two thousand acre immediate  and the other at a specify time t and afterward in each year for twenty  successive year sect see the note in next page burrow er p from and after  Michaelmas and not before on forfeiture of any hog big or swine that from and  after the Feast of saint Michael next and before the time aforesaid shall be  find in the waste of the say forest and their say right of common of pasture  shall be and be hereby continue to they in and through such of the say waste  ground of the say forest at such time and time as the same shall not be  enclose as aforesaid the time of the fencemonth videlicet day before and day  after the Feast of saint John the baptist yearly and the time of the  winterheyning videlicet from the that November to the d of April yearly except  then it state that the hog c be find damagefeasant between the that of  November and d April c within the time of the winterheyning and therefore he  have a right to take they damagefeasant c and do so which he avow and justify  the rejoinder state that such a time specify the day be the first session of  parliament hold after the year and that at the end of that session the remain  one thousand acre be not admeasured set out or enclose nor be yet admeasured c  and aver that even at this time acre and no more be enclose to this rejoinder  the avowant demurrer Mr Hussey argue for the avowant and undertake to maintain  that the Act of pound W c mean to restrain the right of common and of pannage  whether the enclosure of the remain thousand acre be ever make or not burrow  the question depend chief on the that section of this Act which Mr Hussey  discuss and argue upon at large Mr Burland contrafor the plaintiff in replevin  the first question be whether the proviso ever intend to take away the  plaintiff right d questionWhether if it do the plaintiff right be take away by  enclose acre only FirstIt only mean to take away prescriptive right of common  v c c for the increase and preservation of timber within the forest of dean  from whence this proviso be literal transcribe and he cite sir Francis  barrington case   SecondlyThis right can not be take away by a partial  enclosure Mr Hussey in reply first hog can not be within a prescriptive right  the right for they must depend upon grant and this be a distinct independent  provision d some part must be many year before it can be enclose it be not  necessary to enclose the remainder at the precise time mention in the Act Lord  Mansfield hold it clear that the statute mean that the right of common in the  enclose part shall be restrain absolute so long as they shall remain enclose  but be continue in the uninclosed part only under certain limitation and  exception but the right of pannage be absolute take away for eighteen year and  after that restrain to a particular limit time and these hog be there find at  a time when they ought not to have be there d the enclosure of the whole be  not necessary it be not a condition precedent that the whole shall be first  enclose before the restriction of common shall at all take place Mr just  denison and Mr just foster agree with his lordship in opinion Mr just  WilmotLst this be a common appendant by grant the present question only  respect pannage the action be bring for take hog only the Act give the crown  the power of enclose acre in the whole for the sake of increase and preserve  the growth of burrow timber and this be to be always free from common and all  right c while it remain enclose but as to the uninclosed the right remain as  it be under certain limitation and exception but the right of pannage be quite  take away for eighteen year and be even note the particular time specify by  the statute S for admeasuring set out and enclose the second thousand acre be  from and immediate after the determination of the first session of parliament  which shall be hold after the year of our Lord NoteIn fact the enclosure of  acre be make and the other thousand be not enclose V W c burrow er p then  restrain to a certain limit time videlicet between that September and that  November dly and these be two distinct clause the enclosure be not a condition  precedent sir Francis barrington case do not prove any thing in the present  case nor interfere with any thing that I have say per cur judgement for the  defendant Mr Hussey client