a right as that set up by the plea could not exist; that a right of common for one animal could not be subdivided, citing Morse v. Webb (a). C. E. Pollock, for the defendant, submitted that the common was common appurtenant, and that it might be apportioned; and on this point referred to Co. Litt. 122, a., Ib. 164, b.; Sir Miles Corbet's Case (b), Bennett v. Reeve (c), Cheesman v. Hardham (d): that in the case of a villein it was never suggested that his services were lost by division, and that if two persons were entitled to his services, such services might be apportioned by time; and that one who has common for a certain number of beasts may put in the beasts of a stranger: Com. Dig. Common (F. 2); and that the defendant and Letts might club together their several interests to exercise the rights they possessed: Co. Litt. 165, a. Field replied, urging, first, that the grant of three fourths of the eatage of a cow would be void for uncertainty; that the lord could not make a grant which would be so inconvenient; and, secondly, that Letts could not empower a stranger to exercise his right, but must take the profit himself: Monk v. Butler (e). Cur. adv. vult. BRAMWELL, B., now said.-In this case, the question is whether the plea is good; it alleges that the defendant was possessed of certain land, and that, as occupier thereof, he has "common of pasture in, upon and throughout the common field in the declaration mentioned for one cow, and (a) 13 Rep. 65. (c) Willes, 227. 230. (d) 1 B. & Ald. 706. 1860. NICHOLS v. CHAPMAN. 1860. NICHOLS v. CHAPMAN. three fourth parts of a right of common of pasture for another cow" every year, from the 12th of May to the 22nd of November, and that one Letts was possessed of certain other land, and, as occupier thereof, had one fourth part of a right of common of pasture for one cow" throughout the said common field, &c., from the 12th of May to the 24th of November, and that the defendant, in respect of the said common of pasture for one cow and three fourth parts of the right of common of pasture for one other cow in his own right, and in respect of one fourth of the right of common of pasture for one cow, as the servant of Letts, by his command, and in order to use the right, committed the grievances. On the argument before us there was a discussion whether any such right could exist for a fractional part of a cow, but it seems unnecessary to decide that point. Possibly it might, if there was a clear and express grant. And if one person, having a right of common to the extent of one part of the eatage of a cow, could find another person in a similar situation, they might unite their interests, in order to exercise the right. I do not say that it would be so; that is not the clain set up by the defendant in the present plea. He alleges himself to be entitled to "three fourths of a right of common of pasture," which is quite unintelligible. There must therefore be judgment for the plaintiff. Judgment for the plaintiff. 1860. TUTTON v. DARKE. NIXON v. FREEMAN. THE first mentioned case was an action of trespass for taking the plaintiff's goods. The defendant pleaded not guilty (by statute 11 Geo. 2, c. 19). May 8. A distress for rise or after rent before sun sunset is illegal, although there At the trial, before Martin, B., at the Middlesex Sittings may be day the after Trinity Term, 1859, it appeared that the defendant had taken the plaintiff's goods as a distress for rent, and the case on the part of the plaintiff was that distress was illegal, having been made after sunset. The learned Judge left the question to the jury, and they found that the distress was made after sunset but before it was dark. Whereupon the learned Judge directed a verdict for the defendant, reserving leave to the plaintiff to move to enter the verdict for him, with 157. damages. Lush, in last Michaelmas Term, obtained a rule nisi of the time accordingly, against which Hawkins, in the same Term (Nov. 15), shewed cause. The question is whether a distress made after sunset, but before it is dark, is illegal. In the Mirrour of Justices, c. 2, s. 26, it is said: "In the night time a man may not distrain, but only in the day time, but for damage feasant; for before sunrising, or after sunset, no man may distrain but for damage feasant." Subsequent authorities do not define the night as the time before sunrise and after sunset. In Reeve's History of the English Law, vol. 2, p. 358, the learned author, after observing that some have ascribed the Mirrour of Justices to the time of Edward II., says: sunrise on a particular day. An entry to make a distress through an open window is lawful. 1860. TUTTON v. DARKE. v. FREEMAN. EXCHEQUER REPORTS. "This book should be read with great caution, and some (a) In the original edition of Gilbert on Distress, published in the year 1757, the passage is as follows:-"A man cannot distrain in the night for rent, because Some illustration of the mean the tenant hath not thereby notice to make a tender of his rent, which possibly he might do to prevent the impounding of his cattle." ing of the word "night" is afforded by the rule of the common law as to burglary, respecting which Lord Coke says (a), “the word in the indictment or appeal is noctanter, id est, noctu. The natural day is divided in lucem, light, which is dies solaris, and in tenebras, which is night. And therefore as long as the daylight continues, whereby a man's countenance may be discovered, it is called day: and when darkness comes and daylight is past, so as by the light of day you cannot discern the countenance of a man, then it is called night." [Watson, B.-Lord Hale says (b): “it hath been anciently held, that after sunset though daylight be not quite gone, or before sunrising, is noctanter to make a burglary, &c. But the later opinion hath been and still obtaineth, that if the sun be set, yet if the countenance of a party can be reasonably discerned by the light of the sun or crepusculum, it is not night nor noctanter to make a burglary".] Blackstone, in his Commentaries, speaking of burglary, says (c), "As to what is reckoned night, and what day, for this purpose: antiently the day was accounted to begin only at sunrising, and to end immediately upon sunset; but the better opinion seems to be, that if there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is no burglary." It would be difficult to determine the precise moment of sunrise or sunset, but whether it is light could be ascertained by the almanack. [Pollock, C. B.-The almanack is part of the law of England: in Regina v. Dyer (d) it is stated that all the Courts agreed that it was, but it does not follow that all which is found in every printed almanack is part of it, as for instance the proper time for planting and sowing. Also in Brough v. Perkins (e) it is said that the almanack is part (a) 3 Inst. 63. (b) 1 Hale P. C. 550. (d) 6 Mod. 41. 1860. TUTTON v. DARKE. NIXON v. FREEMAN. |