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supernumerary, viz. an admeasurement of the commoner's land, Hall to shew that he has put in more than two sheep for each acre.

The old remedies for a surcharge of common were by assise, &c. Bracton, 4; F.N.Bf».

In Robert Marys's case, 9 Co. (»), it is said, that case will lie. But a commoner could not lawfully distrein another commoner's cattle, because it is making himself a judge in his own cause, and taking execution in the first instance.

In the case of levancy and couchuncy(o), one commoner cannot distrein another's cattle for a surcharge; but must try, by a jury, the number accommodated to the land. The same thing is also necessary here, to ascertain what quantity of land the plaintiff had.

On the whole, where there is a colour of a right, we think a commoner cannot distrein another's cattle (p). If there is no colour, he may; and therefore he may certainly distrein a •stranger's. And where any admeasurement lies between com- [ * 675 ] moners, one cannot distrein the cattle of the other, because that is taking upon him to determine the admeasurement himself. The consequence of which is, that this distress was illegal, and there must be, Judgment for the plaintiff.

(bj) Fol. [125], Writ of admeasurement of pasture, as to which see also Com. Dig. Common (1); Bac. Abr. Id. (C), s. 2; Vm. Abr. Id. (D a).

(n) Fol. Ill bj fee Atkinson v. Teasdale, post, 817; Wells v. Walling, post, 1233.

(o) Post, 123.!, n. (.r)

(p) But where A., being possessed of a quantity of land in a common field, and having a right of common over the whole field;

and B. having also a right of common over
the whole field, they entered into an agree-
ment not to exercise their respective rights
for a certain term of years, and each par-
ty covenanted to that effect: it was held,
that if during the term the cattle of B.
come upon the land of A., he may distrain
them damage feasant; Whiteman v. King,
2 H. Bla. 4. And see the cases referred
to in n. (n), supra.

N. B. In this Term, the great cause of Miller and Taylor (q) was determined for the plaintiff in behalf of literary property, by Lord Mansfield, C. J., Aston and Willes, Js.; Yates, J., contra (r).

(7) Reported at great length in 4 Burr. (r) See Tonson v. Collins, ante, 301, *

2303. 345, n. (d).

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Davenport V. Tyrrel. Xlirror from the Court of King's Bench in Ireland. In ejectment the case was, that Maurice Tyrrel being a Papist died seised of lands in Ballycaher, leaving two sons Richard and James also Papists. By the statute *of 2 Anne, in Ireland, estates in fee simple or fee tail belonging to Papists descend in gavelkind. But on the death of Maurice, in 1704, his son Richard entered alone, and held the same till his death for sixty-two years, and in the mean time settled the same by fine and recovery and marriage settlement, to which James, his brother,

The possession
of one co-heir
in gavelkind is
not the posses-
sion of the other,
where he enters
with an adverse
intent, to oust
the other.

[ *676 ]

Davenport was privy. On the death of Richard in 1766 leaving two •• daughters, James the lessor of the plaintiff brought an eject

YRREL- . ment against his two nieces, for two thirds of the moiety of Ballycaher, claimed by him as co-heir in gavelkind to Maurice, and recovered against them by default and probably by collusion. This ejectment was now brought against the widow of Richard for the other third of the said moiety, which she claimed as her dower and also under the settlement. On the trial at Nisi Prius the Judge directed the jury to find a verdict for the plaintiff; upon which a bill of exceptions was tendered, setting out in substance this case, which was sealed by the Judge and returned into the King's Bench in Ireland, with the Nisi Prius record; and thereupon the Court, upon frequent and solemn argument, gave judgment for the defendant.

And now upon a writ of error it was argued, by Mansfield for the plaintiff.—1. That the bill of exceptions was improperly introduced upon the record, in the Court of King's Bench in Ireland, being in the nature of a writ of error; and therefore should have been- determined in this Court in the first instance. That the Irish Court of King's Bench should have given judgment according to the verdict, and then the bill of exceptions have been returned to England to be argued and adjudged as a. writ, of error, and not in arrest of judgment. Statute West. 2, c.31; Money and Leach, B. R., T. 1766(a); F. N. B. 122 (b); Bro. Repleader, 1; Serlc and Lord Barrington, Stra. 826; Strode and Palmer, Lilly. Entr. 248. [ *677 ] *2. As to the merits. As Richard and James were co-heirs in gavelkind, the po^ession of the one is also the possession of the other; therefore no argument can be drawn from the long possession of Richard; Bro. Coparceners, 1; Moor, 868 (c); Halmsley and Price, Cro. Eliz. (rf); Stirling and Pennington{e); Ford and Greij(f); Co. Litt. 252b; Salt. 391 (g); Litt. sect. 398. Next, if we suppose it a disseisin, then Richard was a

Smrchaser of James's moiety, and by the Popery laws that is brbidden. The whole is a manifest evasion of the laws for suppressing Popery.

Blaclstone, for the defendant.—That though the usual course has been to treat bills of exceptions as writs of error, yet they may be used in arrest of judgment, 2 Lev. 237; especially in the King's Bench, where the record is already before the King himself. The construction of the Irish Court is warranted by [the] Year-Books, P. 3 Hen. 4, 14; M. 27 Hen. 8, 24: and there has been no determination to the contrary since, and this construction is agreeable to reason and common sense. 2. As to the merits. It does not appear that Maurice was seised in fee-simple or fee-tail of the lands in Ballacaher; but only, that he was seised. It might be an estate for life. An

(a) Ante, 555, and sec n. (r), ante, (d) Or Hemsley v. Price, Cro. Eli*. 639.

557, and the Conn of the bill of exceptions (e) Or Sterling v. Pcnlingtm, 14 Vin.

in that case, Bull. N. P. 317. Abr. Joint-tenants, (P a), pi. 5.

- (6) P. 50, 4to edit 1755. (f) 6 Mod. 44.

(c) Small v. Dale; Hob. 120, S. C. Q) FUher v. Wigg.

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estate of inheritance is necessary for the statute to work upon. The Court in such a case will not presume it. Next, sixty-two years' sole possession and the fine are a bar to this action by common law. This is a disseisin. It is a question, not between jointenants or tenants in common, but tenants in gavelkind, who are male coparceners; Cro. Car. 303(A); Co. Litt. 140. There is a difference between the entry of one parcener, claiming the whole, before any entry of the other, and after;—the former is a disseisin; Co. Litt. 373 b, 374 a; Ibid. 243 b; Stirling and Pennington, Cane. 25th February, 1739; Viner, Jointenants, 512. The true state of the law is this—1. If both enter, there must be actual ous*ter to make a disseisin.—2. If [ * 678 one enters generally, and takes the profits, this is no disseisin. 3. If one enters specially, as in the present case, claiming right to the whole, and taking the whole profits, this is a disseisin: but, after her death, the sister may enter, unless barred by the statute of limitations. 4. If, after a special entry, one by feoffment or fine destroys the coparcenary, and takes back [the] estate in fee, and dies; the entry of the sister is barred. Here Richard entered alone in 1704—took the whole profits—settled the estate in 1727, with the privity of James—levied a fine— and died after sixty-two years' possession. The entry of James is clearly barred, and he can maintain no (ejectment. The Popery laws of Ireland make no difference. They only reduce the lands of Papists to gavelkind, but do not alter the nature and consequences of coparcenary at the common law.

Per Cur.—This case shews how much better a motion for a new trial would have been, than a bill of exceptions. The Judge at Nisi Prius did clearly wrong in his direction to find for the plaintiff. The Popery acts make the lands of Papists to be gavelkind; that is their whole effect. And then the adverse possession of one gavelkind tenant will not operate as the possession of both. That rule is a qualified rule: and in the present case, the acts of ownership, fine, &c. make an actual ouster (i). The statute of limitations operates here as an ex

W. Jon. 315,

(It) Blunden v. Baugh; S.C.

(i) The possession of one tenant in common is the possession of another, as the receipt of rent by one is a sufficient receipt by the oilier to prevent his being barred by the statute of limitations. This was holden in the case of Coppinger v. Keating, on a writ of error from Ireland, M. 22 G. 3, in a case where one of two brothers professing the Popish religion entered on the death of his elder brother upon lands, of which they were tenants in common in consequence of the gavelling act, directing that the lands of persons of that persuasion shall descend to all the males according to the custom of gavelkind, and held them for several years until his death; and the Court determined that the son of the elder brother was not barred by the statute of limitations, as the uncle was tenant in common with him under that act, no ac


tual ouster being found: per Lawrence, J., in Peaceable*. Read, 1 East, 577, in which case the point decided was, that one tenant in common levying a fine of the whole, and taking the rents and profits without account for nearly five years, is no evidence from whence the jury should be directed (against the justice of the case) to find an ouster of his companion at the time of the fine levied; and that consequently the latter may maintain ejectment without making an actual entry. In that case the principal one was not cited or adverted to. As to gavelkind lands, see 2 Bla. Comm. 84; Bac. Abr. Gavelkind; Doe dem. Lushinglon v. Bishop of Landqff, 2 N. H. 491, and Long v. Lamy, ante, 265, and cases there referred to. As to purchases by Papists, see n. (/>), ante, 151; and as to their disabilities, see Mr. Butler's note to Co. Litt. 391 a, [note 346].

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tinguishment of the remedy of the one, not as giving the estate to the other. We must consider Maurice as dying seised in

, fee, for (by Yates, J.) in pleading, the larger estate is always presumed. "Dying seised" is " dying seised hi fee." Therefore we are of opinion to affirm this judgment on the merits,

] but as an objection has been started in point of *form, in that the Irish Court of King's Bench has determined on the bill of exceptions, which is contrary to the general practice, we will consider of that point (A).

The Court afterwards seemed to think the objection could not be got over; but no judgment was given: the plaintiff in error not pressing it, as the Court was against him on the merits; and the defendant in error being satisfied with her judgment in the Court below, and her perception of the rents and profits, being only a tenant in dower.


Bill of excep-
tions is in nature
of a writ of er-
ror; and can-
not be deter-
mined in the
Court out of
which the re-
cord issues.

(A) S. P. Symmert v. Regent, 2 Cowp.
501; Thumm v. Stafford, Salk. 284; R.
v. Inhabitantsof Preston,Ca. temp. Hardw.
249, ace. See also WiUes' R. 535, n. (A);

1 Bac. Abr. Bill of Exception!. A bill of exceptions is given in certain cases in the Courts of Scotland, by 55 G. 3, c 42, s. 7.



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