
    Latham v. Latham.
    [Friday, April 23d, 1802.]
    Trespass — Quarantine Lands of Widow — Heir.—Tr e heir cannot maintain an action of trespass for a trespass committed on the quarantine lands of the widow, before assignment of dower.
    Robert Latham, jun., brought trespass against Robert Latham, for breaking his close, containing thirty acres, treading and consuming his grass and cutting down his trees. Pleas, not guilty, and the act of limitations. Issue. Upon the trial of the cause, the plaintiff filed a bill of exceptions to the Court’s opinion, stating, that the defendant moved the Court to direct the jury that, in a case of intestacy, the heir could not be in possession of any part of the tract of land on which the mansion-house stood, although the same should not be a part of the plantation, or enclosed land; and, that the Court directed the jury that the heir could not be in possession until the dower was assigned. That the plaintiff then offered to prove the trespass on certain woods, part of the tract of land on which the mansion-house stood; but, the Court directed that no testimony to prove such trespass, during the life of the widow, could be given. Verdict *and judgment for the defendant; and the plaintiff appealed to the District Court, where the judgment of the County Court was affirmed; and, from the judgment of affirmance, the plaintiff appealed to this Court.
    Williams, for the appellant.
    The Court below erred in supposing, that the heir could not maintain trespass before the widow’s dower was assigned. ffor, the act of 1705, Old body of laws, p. 31, $ 8, [3 Stat. Larg. 374,] only means, at most, such lands as would be useful to the widow; that is to say, the messuage and cleared land, but not the wood-land; as that, instead of being useful, would be burthensome and expensive. But, the Court interrupted the enquiry prematurely. Bor, the parties were at issue upon the point, whether a trespass had been committed within five years or not; and, therefore, the plaintiff ought to have been allowed to shew an injury within that period. It does not appear from the bill of exceptions, but there might have been some agreement between the heir and widow, so as to avoid the necessity of proving an assignment of dower; and, perhaps, this would have been shewn, if the Court had not abruptly put an end to the enquiry.
    B. T. Brooke, contra.
    The Court merely decided on the points submitted to them; that is to say, 1st. Whether the heir could enter on the quarantine lands? 2d. What was included within the quarantine? As to the 1st. it is clear that at common law, trespass could not be maintained by heir within the forty days; and, therefore, not in this country until the assignment of dower. As to the 2d. it ought not to be confined to the arable land; for, without the wood-land, the other would be useless to her. The Court will not suppose, that there was any other evidence than what is set forth in the bill of exceptions; and, therefore the cases supposed by Mr. Williams are unimportant. The act of limitations does not admit any thing, as the declaration does not state the whole case.
    ^Williams, in reply.
    The Court will not presume that, no other case exists than that made by the bill of exceptions; but, will rather intend, that the part excepted to only is stated. It is not true, that the heir could not, at common law, maintain trespass within the forty days. The plea is entire, and the parts not separable. Of course, when the defendant says he did not commit the trespass within five years, he admits he did it at some time; and the Court ought to have permitted the plaintiff to prove at what time: Whereas, their opinion is, that the plaintiff could not prove a trespass until the assignment of dower was established.
    Cur. adv. vult.
    
      
      Trespass — Quarantine Lands of Widow — Heir.—The principal case is cited in Carpenter v. Garrett, 75 Va. 134, for the proposition that in the enjoyment of the privilege conferred by statute on the widow of remaining in the mansion house and plantation, her possession is so exclusive of the heir that he cannot maintain trespass in the woods so situated against a stranger.
      The principal case is cited in Hutchinson v. Kellam, 3 Munf. 211.
      See monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587.
    
   LYONS, Judge,

delivered the resolution of the Court, that the judgment of the District Court should be affirmed.  