brown case John vernon and other appellant the city of dublin respondent that  February Mews dig seven it be usual in Ireland for a lessee who have be three  year in possession and be disturb to file his bill in the court of chancery  there for a injunction to quiet he in possession till evict by due course of  law and this usage be find upon the equity of the statute make against  forcible entry but all bill of this kind must allege and it must also be prove  that the sole and actual possession be in the plaintiff and that no ownership  or possession be in any other person order of the Irish chancery discharge the  respondent the Lord mayor sheriff Commons and citizen of Dublin be seize in  fee of a large tract of ground or strand call Crablough situate within the  liberty of the city and contain about acre by indenture under their common  seal date the that of July grant the respondent alderman French his executor  administrator and assign absolute power licence and authority from time to  time and at all time from and after the that day of march then next ensue for  the term of sixtyone year to lie down and take up oyster on the say piece of  ground and for which grant or licence alderman French be to pay pound per and  the respondent alderman French by virtue of this grant enter on the premise  and be at a very considerable expense in make oysterbed thereon and he and  those derive under he for several year peaceable and quiet enjoy the sole  property and benefit of lie down and bed oyster on the say ground and of take  away and dispose thereof at his and their pleasure but the appellant Vernon  pretend some right or title to the say piece of ground or strand he in the  month of may lie down and bed oyster on some part thereof and frequent within  three month before fill the bill after mention cause some of the oyster belong  to the respondent French and his undertenant to be carry away and dispose of  as he think fit and the respondent French send to the appellant Vernon and  desire to know what he mean by so do and to forbid he from do the like again  he return for answer that he will take oyster off the premise as often as he  please and that he will destroy all the oyster belong to the respondent French  and those derive under he and accord the appellant Vernon with the other  appellant and several other person on the that of June in a forcible and  riotous manner enter on the premise and carry away large quantity of the  respondent oyster and cause they to be burn the appellant Vernon declare that  he will from time to time continue to do so brown in consequence of this  conduct the respondent on the saint of July accord to a ancient usage or  course of proceed in Ireland find on the equity of the statute make against  forcible entry exhibit their bill in the court of chancery there against the  appellant pray a injunction to quiet they in the possession of the premise  till evict by due course of law and the respondent have petition the Lord  chancellor set forth the substance of their bill and pray the usual injunction  in case of force on a triennial possession and have annex proper affidavit to  their say petition to prove the say forcible disturbance and that the  respondent the corporation of the city of Dublin and their predecessor for  fifty year pass and upward by themselves and their undertenant and particular  for ten year before the fill of the bill have be in the actual quiet and  peaceable possession of the premise except the disturbance so give they by the  appellant it be on the d of July order that a injunction shall issue direct to  the appellant for quiet the respondent their undertenant and assign in the  actual possession of the premise till they shall be thereout evict by due  course of law or till further order of the court to the contrary brown er p a  injunction issue accord and the appellant be serve therewith they all think  fit to appear as in contempt on a attachment and submit to be examine on  personal interrogatory touch the matter allege in the bill though none of they  need to have appear but the appellant Vernon who only contest the possession  of the premise nor can the other appellant have be prejudice by their not  appear however when they all appear it become necessary for the respondent to  exhibit personal interrogatory against they for otherwise the appellant by the  course of the court will have be dismiss with cost against the respondent  personal interrogatory be accord exhibit the appellant put in their answer  thereto and the appellant Vernon in his answer insist that the say strand be  part of the manor of Clontarf and that it lie in the county of Dublin and be  part of the estate of mary Vernon under who he claim but admit that the  corporation of Dublin have of late set up some claim thereto as be in the  liberty of the say city and believe that the corporation every three year road  round the franchise or precinct of the city to preserve the bind thereof and  that the custom of ride on the north side of the river beyond BallyboughBridge  by which all the say strand call Crablough be by they take in begin about  fifty year before but say they sometime meet with interruption therein from  the lord of the manor of Clontarf he also insist that a part of the say strand  by he call quire island lie within the bind describe by the bill and whereon  he have lie down oyster never be in the possession of the city or use by any  other person except the say mary Vernon tenant and that she and those derive  brown under her for eighteen year pass have saltpipes lie on the strand below  highwater mark for the use of the saltwork of Clontarf he admit that the city  of Dublin grant to the respondent French liberty to bed and feed oyster on the  premise for ten or eleven year before at some yearly rend that the respondent  French and other by his direction lie down large quantity of oyster thereon  and make profit thereof but deny that the respondent French or those derive  under he sole enjoy the premise the say mary Vernon tenant have as he insist  constant fish thereon for oyster and other shellfish and he admit that he and  the other appellant enter on the premise but without force and that he cause  four tumbrels of the respondent Frenchs oyster to be roast and eat and that he  turn one of the respondent Frenchs servant off the premise and declare he will  use all his servant so and confess that the other appellant enter on the  premise by his order with intent to assert the say mary Vernon right the  appellant Vernon have deny the force and the respondent quiet possession it  become necessary to examine witness touch those point and accord both party  have proceed to examine witness the appellant Vernon on the d of October  obtain a order for examine the other appellant as witness for he save just  exception and on the that of November follow after several of his witness have  be examine he obtain a order for exhibit additional interrogatory on the that  of the same month the appellant Vernon move the court for liberty to take away  and dispose of the oyster he have lie down on that part of the strand call  quire island and which be order accord on his give security by recognizance to  abide by such order or decree as shall be make on the hear of the cause and it  be further order that he shall take away all the say oyster before the that of  march then next ensue and that he or those employ by he in carry away the say  oyster shall not pass or repass over the respondent Frenchs oysterbed and it  be thereby declare that the appellant enter on the premise to carry away the  say oyster be not to prejudice the possession of the respondent or the  injunction issue in the cause and the appellant Vernon be not to lie down any  more oyster than he have already lie down on the premise in pursuance of this  order the appellant Vernon give security and carry away the oyster both party  have examine their witness and publication have pass the court on the that of  June refer it to dr Stanton one of the master to inspect the personal  interrogatory exhibit by the respondent the answer of the brown er p appellant  thereto and the deposition of witness take in the cause and he be to certify  to the court how he shall find the matter and whether the appellant be guilty  of the contempt lie to their charge or not brown soon afterward the appellant  Vernon move the court for liberty to prove before the master copy of several  charter patent and many other deed and exhibit which be order accord save to  the respondent all just exception and on the appellant motion the court on the  that of November order that the master shall be arm with a commission to  examine such witness as shall be produce before he as to the contempt refer to  he the master on the that of July make his report and therein state the  substance of the proof on both side and though it manifest appear by the  deposition of several credible witness that the respondent alderman French and  those derive under he have be for above nine year before the fill of the  respondent bill in the quiet and peaceable possession of the say strand call  Crablough except the interruption give they by the appellant and that he and  they during that time enjoy the sole liberty of lie down and feed oyster  thereon and of carry away and dispose of they as they think fit and  notwithstanding that no sufficient evidence appear on the part of the  appellant to contradict the same yet the master be please to conclude his  report with say that the appellant prove and lie before he several patent and  other record to make the appellant title to the strand in question appear and  to show the precinct of the city of Dublin but the respondent counsel insist  that the possession for three year before fill the bill be the single question  before the court and not the title and the proof so state in his report differ  in several point he can not take upon he to certify whether the appellant be  guilty of the contempt lie to their charge or not but submit the whole matter  to the court to this report each party take five several exception and the  cause come on to be hear upon the report and exception on the that that that  and that of December and the saint and d of January before the Lord chancellor  of Ireland his lordship be please to allow the appellant first and second  exception and the substance of the appellant three exception be for that the  master report that the appellant have lie before he several copy of patent and  other record to make his title to the strand in question appear but do not  report what appear by such patent or record and the appellant four exception  be for that the master do not report that there be several positive witness  who depose that Crablough lie in the manor and parish of Clontarf and county  of Dublin and his five exception be for that the master report that about  eighteen year ago pipe be lie by the say mary Vernon on the say strand but not  on that part call Crablough but do not report that the say pipe be lie on part  of the ground in the possession of which the respondent by their bill pray to  be quiet his lordship be please to overrule the say three last exception and  think fit to allow the respondent first exception and to brown overrule their  second exception and the substance of the respondent three exception be for  that the master start in his report several deposition take on the part of the  appellant to a additional interrogatory which be lead in material point and  for that the say interrogatory tend to examine matter contain in the original  interrogatory and that therefore the say deposition ought not to be read and  more particular the deposition of one Edward and one Gallagher who be examine  to the original and additional interrogatory at different time on argue this  exception his lordship be please to declare that the witness examine on  additional interrogatory at a different time from their examination on the  original interrogatory be irregular examine no order have be make for that  purpose as there ought to have be and that ground on a affidavit that the  appellant do not know at the time of the examination of the say witness to the  original interrogatory that they be witness proper to be examine to the matter  contain in the additional interrogatory and therefore allow that part of the  exception but overrule the remainder and the substance of the respondent four  exception be for that the master receive and report the deposition of Hester  bath and Michael saint brown er p Laurence two of the defendant in the cause  though object to his lordship be please to allow that exception also and the  respondent five objection be that the master do not report the appellant  guilty of the contempt lie to their charge the consideration of that point be  reserve to the final determination of the cause and pursuant to the  beforementioned variation he proceed to hear the cause and on the d of march  be please to declare that there seem to he to be a contrariety in the evidence  and desire to know from the practice of the court not concern in the cause  whether it be the course of the court in such case to direct a issue to try  the matter of the possession and be inform it be his lordship direct the  follow issue to be try the then next easter term by a jury of the county of  Dublin videlicet whether the respondent or any derive under they be for three  year next before the fill of the bill in the quiet and peaceable possession  save the disturbance complain of in the bill of any and what part of the land  call Crablough mention in the lease make to the respondent alderman French by  the city of Dublin and in which the disturbance complain of be give and each  party be to be at liberty on the trial to give in evidence the deposition of  such witness take in the cause as by reason of death or any other lawful cause  to be make appear by affidavit can not be present at the say trial and the  judge be to certify the verdict and then the court will make such further  order as shall be fit and his lordship be please to declare that if either  party think fit to move to have another county appoint for the brown trial on  application such order shall be make as will be fit accord the respondent  apply to the court by petition pray that the say issue may be try by a jury of  any indifferent neighbour county whereupon and inasmuch as the appellant do  not oppose the change of the county it be order that the say issue shall be  try by a jury of the county of Kildare be the next adjoin indifferent county  from all these order the present appeal be bring and on behalf of the  appellant it be say I will d rider to appear by the respondent own show that  there be not proper party before the court they have suggest by their bill  that the respondent French and those derive under he be in possession of the  premise and those who derive under French not be party the bill ought to have  be dismiss since it thereby appear that other not party be equal entitle to  have a injunction to be quiet in the possession of the premise beside bill of  this kind must allege and prove the sole and actual possession to be in the  plaintiff who prefer they and that no ownership or possession be in any body  else that the practice of the court of chancery in Ireland in grant injunction  on these sort of bill be find mere on the equity of the statute of Henry VI  respect forcible entry and as the appellant by their answer have deny all  force and none have be prove in the cause the present case be not within the  reason of that practice that the respondent who seek to be quiet on account of  three year possession shall at least have prove that they have the sole quiet  and peaceable possession of the whole strand and premise in question for three  year immediate before the disturbance complain of by a title exist and  undetermined but in all this they have entire fail that the respondent seek to  be quiet in the whole strand under one single denomination of Crablough  contain in the whole acre whereas it be full prove in the cause that the land  within the boundary describe by the bill and therein call Crablough consist of  ground of several different denomination and that the appellant Vernon and  those from who he derive have be in the sole quiet and peaceable possession of  much the great part thereof and therefore the respondent can not be quiet  accord to the prayer of their bill because that will be to turn the appellant  out of possession and as to the residue of the land videlicet what be proper  call Crablough be about six acre though it appear that the respondent French  and his partner do lie down and take oyster therefrom it also appear that the  appellant Vernon and the tenant and servant of mary Vernon do the same and  that they sole receive anchorage wreck and savage which be the high evidence  both of title and possession and that they also receive payment for every boat  land fish on the soil and take brown er p cockle muscle and oyster off  Crablough and dispose of the same under mary Vernon title so that the  respondent have fail brown in any proof of a sole quiet and uninterrupted  possession in any part of the land in question that it thus appear that on  this small part of the premise the appellant Vernon and the respondent have a  mix possession no presumption in law will arise from such a possession to who  the same belong and where two person be in possession the law determine the  possession in he to who the real right belong and therefore the appellant  shall have be permit to have read the deed and instrument prove in the cause  relate to the title more especial as the respondent themselves have  interrogate and examine thereto that the respondent have by their bill charge  a special title of a seize in fee and possession time out of mind in they of  the premise in question and describe they as lie within the liberty of the  county of the city of Dublin and the appellant have by their answer deny any  such title and insist that the premise lie in the county of Dublin at large  the title of both party be thereby put in issue and therefore the appellant  Vernon ought to have be permit to read the evidence of his own title especial  as the respondent be permit to read the lease grant to French as evidence of  their title that no issue shall have be direct in this case it appear clear in  proof that the respondent be not in the quiet and peaceable possession of the  premise but in a mix or dispute possession which can only be determine by a  trial of the right and therefore a court of equity ought not to interpose by a  bill of this kind but leave the party at liberty to dispute the right at law  beside it be conceive to be high unreasonable to direct a issue to be try only  as to the possession for three year which can not in the least tend to  determine the right between the party but the respondent ought to have be  leave to their remedy in the ordinary course of law either by a ejectment or  by a action ground on the statute of forcible entry that the appellant four  and five exception be mere on account of the master not have state the  evidence accord to the deposition of the witness on read whereof it will plain  appear that both these exception ought to have be allow as they go to very  material point of the case the four exception be to show that the land in  question lie in a different county from that charge by the bill and that the  appellant Vernon have actual possession thereof in the instance of lie down  the salt pipe that the three exception of the respondent ought to have be  overrule because they crossexamined the two witness who deposition they insist  by this exception ought not to have be read but beside that the additional  interrogatory be touch different matter from those contain in the original  interrogatory and the appellant have obtain a order for exhibit they and the  respondent four exception ought likewise to have be overrule it be the  constant practice of all court of equity to read the deposition of such  defendant as appear disinterest in the matter in question provide brown a  order be first obtain for their examination and the reason and justice of the  case require it shall be so as otherwise a plaintiff may deprive a defendant  of all his material witness by make they party to his bill which be plain the  view of the respondent in the present case by make the tenant party who be  able to prove the appellant Vernon possession and have no interest in the  dispute it be therefore pray that the several order appeal from may be reverse  that the respondent bill may be dismiss with cost and that the recognizance  enter into by the appellant Vernon and his surety pursuant to the order of the  that of November may be vacate on the other side it be insist t Lutwyche n  fazakerley that the order of the that of November be make upon the appellant  Vernon own application and with his consent give in open court that he submit  to it and enjoy the full benefit of it by carry off all his oyster within the  time thereby limit and that there be no colour for say that the possession be  in any sort alter or transfer by this order for the injunction contend for in  this case be not for restore or transfer possession but bare for quiet the  respondent in such possession as they have at the time of fill their bill or  for three year before any disturbance give until the possession shall be evict  brown er p by due course of law that it be the constant and know practice of  the court of equity in Ireland on bill of this nature not to meddle with the  title that be proper cognisable at commonlaw but mere to examine whether the  plaintiff have be in quiet possession for three year before the disturbance  give and to inquire into the nature and circumstance of such disturbance and  who the disturber be and therefore in the present case the patient charter and  other exhibit relate to the title set up by the appellant Vernon be whole  foreign to the matter proper under the consideration of the court beside he do  not set up or prove any title in himself for by his answer to the personal  interrogatory he own that he and the other appellant give the disturbance  before mention in order to assert mrs mary Vernon title but he have not  attempt to show any authority from her for so do and she not be a actual  disturber the respondent can not regular have make her a party to their bill  nor do they examine to their title it be improper to do so on bill of this  nature that it appear full in proof in the cause that the respondent French  and those derive under he have for above nine year before the fill of the bill  be in the quiet and peaceable possession of the strand call Crablaugh save the  disturbance give by the appellant and have during that time enjoy the sole  liberty of lie down and feed oyster thereon by virtue of the grant or lease  make by the corporation and it appear on the face of the grant that the  respondent French be the only person interest in the liberty profit and  privilege thereby grant and therefore the court ought to have decree that the  respondent shall be brown quiet in their say possession till evict by due  course of law so that upon the whole matter the issue direct to be try be more  in favour of the appellant than of the respondent that the respondent bill and  injunction be not sole for the possession of the soil of the strand call  Crablough but also for the quiet exercise of certain liberty and privilege  thereon without which no profit can be make of the soil and if it appear that  the appellant disturb the respondent in the free enjoyment of that liberty on  any part of the strand comprise in the grant or lease the appellant be to be  deem in contempt for so much and the respondent be entitle to a injunction to  quiet there in the possession of that part and by the trial of the issue  direct it will appear what part of the strand call Crablough the respondent be  in the quiet possession of for three year before the fill of the bill that the  appellant Michael saint Laurence and Hester bath have be proper make defendant  to the suit there be no colour for read or report their deposition which be  the matter of the respondent four exception there be as little colour for read  the deposition of Edward and Gallagher to the appellant additional  interrogatory which be the matter of the respondent three exception for these  witness have be first examine to the appellant original interrogatory they can  not afterward regular be examine to the additional interrogatory without a  special order ground on a affidavit that at the time of examine those witness  to the original interrogatory the appellant do not know they be proper witness  to be examine to the original interrogatory but no such order or affidavit be  make it be therefore hope that the order so far as they be complain of by the  appellant will be affirm and the appeal dismiss with cost but after hear  counsel on this appeal it be order and adjudge that the order complain of  shall be reverse and that the respondent bill shall be dismiss and the  injunction dissolve and that the recognizance before mention shall be vacate  jour vol p brown er p