BARNARD vs. POPE. But every dispossession does not amount to a disseisin, especially of tenants in common. For the possession of one is the possession of all, unless by an actual ouster, or an exclusive pernancy of the profits against the will of the others, one shall manifest an intention to hold the land by wrong, rather than by the common title. But without such overt acts, or a sole and exclusive possession for more than twenty years, so that the right of entry shall be gone, a disseisin is not to be presumed. All the tenants in common may therefore be actually seised, in the sense in which those terms are used in the case before referred to; and we think this is the sense in which the court applied them; for the facts in that case required it. [ * 439 ] * In the case at bar, there had been a sole possession by the respondent of the whole land, under a supposed title, only for ten years. There has been no actual ouster, nor any refusal to account for the rents or profits. The right of entry remained at the time of filing the petition; and, under these circumstances, we are clear that there is a sufficient seisin to maintain the process. 374 Judgment on the verdict CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, IN THE COUNTY OF ESSEX, NOVEMBER TERM, 1817, JOHN MANSFIELD, Plaintiff in Error, versus EBENEZER HAWKES AND ANOTHER. The establishing of a turnpike road over a general or common field is a dissolution of such common field. THIS was a writ of error to the Circuit Court of Common Pleas for this county, upon a judgment rendered by them in an action originally commenced before a justice of the peace for this county by the now plaintiff in error. The original action was trespass against the defendants, for taking and carrying away a cow of the plaintiff. The defendants justified on the ground that they were assessors of a general or common field, called Romney Marsh, in which the plaintiff was a proprietor; that they assessed a tax against the individual proprietors, in pursuance of a vote passed at a legal meeting of the proprietors; MANSFIELD vs. HAWKES & AL., in Error. and that, for the non-payment of the portion of said tax assessed upon the plaintiff, they caused his cow to be taken and sold. At the trial of the action before the Common Pleas, amongst other things, the plaintiff produced and relied on [*441] * the act of the commonwealth, passed March 6, 1802, incorporating certain persons, with powers to lay out and make a turnpike road from Salem to Charles River bridge; (1) and he proved that more than ten years ago, and long before the making of the said tax, the said turnpike road, extending over the said marsh three miles, and being eight rods in width, was made pursuant to the said act of the legislature, dividing the marsh into two nearly equal parts; which road still continues. The plaintiff contended that, by force of the said act or law, and of the making of said turnpike road in pursuance thereof, the said propriety was dissolved, and the said marsh ceased from that time to be a general and common field. But the court instructed the jury that the said act, and the locating and making of the said turnpike, did not discontinue or dissolve the said general field. And a verdict being returned for the defendants, the plaintiff tendered his bill of exceptions to the opinion of the court, as delivered to the jury, upon this and other points in the cause. As the court here gave no opinion upon the other points, it is unnecessary to state them. The instruction to the jury above mentioned was among the errors assigned. The defendants in error pleaded in nullo est erratum, and the cause was argued upon all the points at the last November term, by Merrill for the plaintiff in error, and Saltonstall for the defendants in error; and at the last April term of the Court, holden at Ipswich in this county, the opinion of the Court was pronounced by PUTNAM, J., (after a brief history of the action.) The question, whether the act of the 6th of March, 1802, and the making of the turnpike road, were not a discontinuance and dissolution of the general and common field, became a material subject of inquiry; for if the field had been discontinued, all the authority which the defendants claim to exercise over the plaintiff's property was at an end. [ * 442 ] *Such would have been the case if the proprietors had voted to dissolve or discontinue the general field, pursuant to the statute of 1784, c. 53, § 8. That is only one mode by which a dissolution may take place. It is easy, however, to suppose that the same effect may be obtained by various other modes. If the proprietors should all agree, by deed, to discontinue (1) Stat. 1801, c. 63 MANSFIELD vs. HAWKES & AL., in Error. such field, we see no objection to it. So, if they were to grant a way through their field, and should covenant that the grantees should enjoy it as a highway, without any obstruction from the proprietors, such a grant, being entirely inconsistent with an occupation by an entire enclosure, would necessarily operate as a discontinuance. The case last supposed is not so strong as the case at bar. The public have acquired a way through the middle of this field. The act of the legislature, and the proceedings under it, are equivalent to a declaration, on the part of the legislature, that this field should no longer be fenced into one enclosure. It became necessary, or convenient, for the public to pass through it; and it would not be lawful for the proprietors to obstruct the public will. After the road was established, the proprietors could not lawfully shut or fence it up. Such an act would be an offence. Suppose (which, however, is not decided in this case) that the plaintiff was, before the establishment of the turnpike road, liable to contribute, as a proprietor in a general field; he would be discharged afterwards, upon the settled rule that, where a party was bound to perform any act which the law afterwards prohibits, he shall be excused. This view of the case, with which, after much consideration, we are all satisfied, renders it unnecessary to give any opinion as to the other exceptions made by the plaintiff. The entry must be, that the judgment of the Circuit Court of Common Pleas be reversed, and a venire facias de novo awarded, returnable to the bar of this Court. [* 443 ] * JACOB LITTLE, Plaintiff in Audita Querela, versus THE PRESIDENT, DIRECTORS, AND COMPANY, OF THE NEWBURYPORT BANK. If a prisoner on execution procure his liberation, under an agreement to surrender himself upon certain terms, and he executes such agreement, and is committed again on the execution, he can have no remedy by process of audita querela. THIS suit was brought by the plaintiff, to obtain relief from imprisonment upon an execution, which issued upon a judgment obtained by the defendants against the plaintiff in this Court, Novem 32* 37~ LITTLE US. NEWBURYPORT BANK. ber term, 1814, for 5723 dollars 15 cents debt, and 29 dollars 8 cents costs; upon which execution the plaintiff was arrested on the 4th of March, 1815, the execution being returnable to this Court at the succeeding April term. The plaintiff avers that the defendants, after the arrest on the same 4th of March, discharged him, and consented that he should go at large; and afterwards, on the 11th of the same month of March, caused him to be arrested and imprisoned again on the same execution. At the trial, which was had on the general issue, before Putnam, J., at the sittings here after November term, 1815, it was in evidence that, on the 4th of March, 1815, the plaintiff, (being then in prison on the said execution,) and the directors of the bank, and Moses S. Little, son of the plaintiff, and David Little, brother of the plaintiff, met at the prison in Newburyport; that the plaintiff wanted time, to make arrangements for the settlement of the execution; and it was finally agreed that the defendants should give the plaintiff one week, on condition that the said David and Moses S. would sign a note, with the plaintiff as principal, for the amount of the execution, payable to the defendants in one week; which note was to be given up, if the plaintiff should be forthcoming in one week; in which case the execution was to be in force against him in the same manner that it originally was; but otherwise the note was to be in force. The said note was accordingly made and signed as aforesaid, and put into the hands of W. Bartlett, Esq., [ * 444 ] *the president of the bank, to be delivered up on the terms aforesaid; and the plaintiff was thereupon, by the consent of the defendants, permitted to go at large, upon the agreement aforesaid. The sureties gave notice to the defendants, within the week, that they should deliver up the plaintiff; and on the 11th of March, the sureties and the parties met at the prison. The plaintiff produced testimony tending to prove that the sureties delivered him up; and the defendants produced evidence to prove that the plaintiff voluntarily surrendered himself. He was, in fact, recommitted on the execution by direction of the defendants, and detained in prison from the said 11th of March to the 25th of April following. There was some evidence in the case tending to prove that the plaintiff procured his said discharge from imprisonment on the 4th of March by fraud. All the evidence was submitted to the jury, with instructions from the judge to the following effect: That the general rule of law is |