Such is the modern way, of obliquely bringing in question the title to lands and tenements, in order to try it in this collateral manner; a method which is now universally adopted in almost every case. It is founded on the same principle as the ancient writs of assise, being calculated to try the mere possessory title to an estate; and hath succeeded to those real actions, as being infinitely more convenient for attaining the end of [206] justice because the form of the proceeding being entirely ficti

tious, it is wholly in the power of the court to direct the application of that fiction, so as to prevent fraud and chicane, and eviscerate the very truth of the title. The writ of ejectment and its nominal parties (as was resolved by all the judges) (y) are, "judicially to be considered as the fic"titious form of an action, really brought by the lessor of the plaintiff "against the tenant in possession: invented, under the control and power "of the court, for the advancement of justice in many respects; and to "force the parties to go trial on the merits, without being entangled in the "nicety of pleadings on either side."

But a writ of ejectment is not an adequate means to try the title of all estates; for on those things, whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament: (z) except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII. c. 7. which doctrine hath since been extended by analogy to tithes in the clergy: (a) nor will it lie in such cases, where the entry of him that hath right is taken away by descent, discontinuance, twenty years' dispossession, or otherwise.

This action of ejectment is however rendered a very easy and expeditious remedy to landlords whose tenants are in arrear, by statute 4 Geo. II. c. 28. which enacts, that every landlord, who hath by his lease a right of re-entry in case of non-payment of rent, when half a year's rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of the premises, which shall be valid, without any formal re-entry or previous demand of rent. And a recovery in such ejectment shall be final and conclusive, both in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards."

y Mich. 32 Geo. II. 4 Burr. 663.

z Brownl. 129. Cro. Car. 492. Stra. 54. a Cro. Car. 301. 2 Lord Raym. 789.

ceeding term, to find such bail as was specified in the former rule; and on no cause being shewn to that order, they directed the rule for entering up judgment for the plaintiff to be made absolute. The court can only give a reasonable sum for the costs of the action, and not for the mesne profits, the amount of which must be ascertained by the prothonotary. 6 Moore, 54. See further, as to the proceedings on this statute, Tidd, 8 ed. 541, &c. Chitty.

(11) Where there is a sufficient distress upon the premises, the landlord cannot maintain an ejectment, upon his right of re-entry, for non-payment of rent, under this statute; nor can he maintain an action of ejectment for a forfeiture at common law, unless he has demanded the rent on the last of the specified days for the payment thereof, just before sunset. As where the proviso in a lease is, "that if the rent shall be behind, and unpaid by the space of thirty, or any other number of days after the days of payment, it shall be lawful for the lessor to re-enter." A demand must be made of the precise rent in arrear, on the thirtieth or other last day, a convenient time just before and until sunset upon the land, or at the dwelling-house, or the most notorious place. 1 Saund. 287. n. 16. 7 T. R. 117.

The 11 Geo. II. c. 19. s. 16. gives the landlord a summary remedy by application to two justices of the peace, where a tenant at rack-rent, or at full three-fourths of the yearly value, "being in arrear a year's rent, deserts the premises and leaves the same uncultivated or unoccupied, and no sufficient distress thereon. In such case, after fourteen days' notice, the justices may put the landlord in possession; and the 57 Geo. III. c. 52. extends the regulation to such tenants as are half a year in arrear. As to the proceeding of the justices under these acts, and

2. The writ of quare ejecit infra terminum lieth, by the ancient law, where the wrongdoer or ejector is not himself in possession of [207] the lands, but another who claims under him. As where a man leaseth lands to another for years, and, after the lessor or reversioner entereth, and maketh a feoffment in fee, or for life, of the same lands to a stranger: now the lessee cannot bring a writ of ejectione firmae or eject. ment against the feoffee; because he did not eject him, but the reversioner: neither can he have any such action to recover his term against the reversioner, who did oust him; because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute Westm. 2. c. 24. as in a case where no adequate remedy was already provided. (b) And the action is brought against the feoffee for deforcing, or keeping out, the original lessee, during the continuance of his term; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains; and also shall have actual damages for that portion of it, whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession (by what means soever he acquired it), and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse.

CHAP. XII.

OF TRESPASS..

In the two preceding chapters we have considered such injuries to real property, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man's real property without any amotion from it.

The second species therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass, in its largest and most extensive sense, signifies any transgression or of fence against the law of nature, of society, or of the country in which we live; whether it relates to a man's person or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an ac. tion of trespass vi et armis in assault and battery will lie; taking or detaining a man's goods are respectively trespasses; for which an action of tres. pass vi et armis, or on the case in trover and conversion, is given by the law so also non-performance of promises or undertakings is a tres

b F. N. B. 198.

how far the record of such proceedings will be conclusive in their behalf, see 3 Bar. & Cres. 649.

Difficulties having frequently arisen, and considerable expenses having been incurred by reason of the refusal of persons, who had been permitted to occupy, or who had intruded themselves into parish houses, to deliver up possession of such houses, by stat. 59 Geo. III. c. 12. s. 24. two justices are empowered in such cases to cause possession to be delivered to the churchwardens and overseers. The mode of proceeding is prescribed by this statute. The visitors and feoffees of a free grammar school, who have dismissed the schoolmaster for misconduct, cannot maintain ejectment for the school house till they have determined the master's interest therein, upon summons in the ordinary manner, when he might be heard to answer the charges forming the ground of dismissal. 1 Bing. 357. 8 T. R. 109. Chilty. (1) See in general, Com. Dig. Trespass; Bac. Ab. Trespass; Vin. Ab. Trespass; 1 Chitty on Pl. 149 to 172.

pass, upon which an action of trespass on the case in assumpsit is ground. ed: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified, is a trangression or trespass in its largest sense; for which we have already seen (a) that whenever the act itself is directly and immediately injurious to the person or pro[209] perty of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

But in the limited and confined sense, in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil: every entry therefore thereon without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury: " qui alie. "num fundum ingreditur, potest a domino, si is praeviderit, prohiberi ne "ingrediatur." (b) But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another's lands (unless by the owner's leave, or in some very particular cases), as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained.3

Every unwarrantable entry on another's soil the law entitles a trespass

(2) See these distinctions fully considered, 1 Chitty on Pl. 115 to 122. and 149 to 172. The distinctions between actions of trespass vi et armis for an immediate injury, and actions of trespass upon the case for a consequential damage, are frequently very subtle: see the subject much considered in 2 Bl. Rep. 892. In a case where an action of trespass vi et armis was brought against the defendant for throwing a lighted squib in a public market, which fell upon a stall, the owner of which, to defend himself and his goods, took it up and threw it to another part of the market where it struck the plaintiff and put out his eye; the question was much discussed, whether the person injured ought to have brought an action of trespass vi et armis, or an action upon the case; and one of the four judges strenuously contended that it ought to have been an action upon the case. But I should conceive, that the question was more properly this, viz. whether an action of trespass vi et armis lay against the original or the intermediate thrower, or whether the act of the second thrower was involuntary (which seems to have been the opinion of the jury), or wilful and mischievous, and if so, whether the first thrower alone ought not to have been answerable for the consequences. For if A. throws a stone at B., which, after it lies quietly at his foot, B. takes up and throws again at C., it is presumed that C. has his action against B. only; but if it is thrown at B., and B., by warding it off from himself, gives it a different direction, in consequence of which it strikes C., in that case, it is wholly the act of A., and B. must be considered merely as an inanimate object, which may chance to divert its course. In the case of Leame v. Bray, 3 East, 598., it was decided, that if a man drives one carriage, being on the wrong side of the road, against another carriage, though unintentionally, the action ought to be trespass vi et armis, and the court declare generally, that if the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis by all the cases both ancient and modern.

Christian.

(3) Trespass for breaking a close is sustainable without previous notice; but it is most prudent to serve a notice, and proceed for a subsequent trespass, upon which the judge on the trial will usually certify that the trespass was wilful, which will entitle plaintiff to full costs, though the damages be under 40s. 8 & 9 W. III. c. 11. s. 4. 3 Wils. 325. 6 T. R. 11. 7 T. R. 449. 4 East, 495.

a

by breaking his close: the words of the writ of trespass commanding the defendant to shew cause quare clausum querentis fregit. For every man's land is in the eye of the law enclosed and set apart from his neighbour's; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing only in the contemplation of law, as when one man's land adjoins to [210] another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herb. age. (c) 5

One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of trespass or, at least, it is requisite that the party have a lease and possession of the vesture and herbage of the land. (d) Thus if a meadow be divided annually among the parishioners by lot, then after each person's several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes: (e) for they have an exclusive interest and freehold therein for the time. But before entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in law. (ƒ) And therefore an heir before entry cannot have this action against an abator; though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plantiff was seised of the land; but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his

c F. N. B. 87, 88.

d Dyer 285. 2 Roll. Abr. 549.
f 2 Roll. Abr. 553.

c Cro. Eliz. 421.

(4) Doctor & Stud. 30. 7 East, 207. 2 Stra. 1004. 1 Burr. 133.

(5) In an action of trespass for entering the grounds of another person, and sporting over then, the jury may take into consideration in determining their verdict, not only the actual damage sustained by the plaintiff, but circumstances of aggravation and insult on the part of the defendant. Thus, in the case of Merest v. Harvey, Marsh. 199. 5 Taunt. 442. S. C. where the defendant, a magistrate, had committed the trespass, before the plaintiff's face, in defiance of notice, that he was a trespasser, and had accompanied it by every kind of insult, verdict was given for 500l. damages, and the court refused to grant a new trial, on the ground that they were excessive; and in that case, the chief justice of the common pleas, sir Vicary Gibbs, observed, that "he knew not on what principle a rule be granted in that case, except that the jury should only have found to the extent of the actual pecuniary damage sustained by the plaintiff." "Suppose," said he, "I had a walk before my house, which I had a pleasure in looking at, or walking on, would it be allowed that a man should come there and walk to my an. noyance, and then offer me a halfpenny in satisfaction, alleging that I had received no actual damage?" And where a lord of a manor brought an action against a party for trespassing upon the waste of the manor, by remaining there after notice to quit, and upon the trial it was insisted, that the waste was not that kind of property, as to be so strictly sacred from a trespass as enclos ed land within the manor, the objection was overruled by the court. On 12 May, 1782, see Addington's Addenda, Penal Statute, 355. Chitty.

(6) As to the possession and title essential, see Chitty on Pl. 159 to 166. An exclusive interest in the crop, without an interest in the soil, is sufficient to sustain an action of trespass. 3 Burr. 1826. Bro. Abr. Tres. 273. Bull. N. P. 85. But possession, actual or constructive, a pew or seat, because the plaintiff has not the exclusive possession, the possession of the church being in the parson. 1 T. R. 430. If trees are excepted in the lease, the land whereon they grow is necessarily excepted also, consequently the landlord may maintain trespass for breaking his close, if the tenant cut down the trees. Selw. N. P. 1287. Where two fields are separated by a hedge and ditch, the hedge prima facie belongs to the owner of the field in which the ditch is not. If there is a ditch on each side, the ownership of the hedge must be proved by acts of ownership. Ib. 1288. A person may cut his ditch to the edge of his own land, but if he goes beyond, he is a trespasser on his neighbour's land, though he may cut as a wide as he pleases on his own land. 3 Taunt. 138. Chitty.

re-entry the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him. (g) Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer by a mode of redress, which was calculated mere. ly for, injuries committed against the land while in the possession of the owner. But now by the statute 6 Anne, c. 18. if a guardian or trustee for

any infant, a husband seised jure uxoris, or a person having any [211] estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers; and any reversioner or remainder-man, expectant on any life-estate, may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant to the land, or may enter thereon in case of his refusal or wilful neglect. And by the statutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19. in case, after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annual value of the premises, in case he himself hath demanded and given notice in writing to the tenant to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and he afterwards neglects to carry that notice into due execution."

A man is answerable for not only his own trespass, but that of his cattle also for, if by his negligent keeping they stray upon the land of another (and much more if he permits, or drives them on), and they there tread down his neighbour's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages, and the law gives the party injured a double remedy in this case; by permitting him to distrein the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction: or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases of trespass committed upon another's land either by a man himself or his cattle, is the action of trespass vi et armis; whereby a man is called upon to answer, quare vi et armis clausum ipsius A. apud B. fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, &c.: (h) for the law always

couples the idea of force with that of intrusion upon the property of [212] another. And herein, if any unwarrantable act of the defendant or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages; such however as the jury shall think proper to assess.

In trespasses of a permanent nature, where the injury is continually renewed (as by spoiling or consuming the herbage with the defendant's cattle), the declaration may allege the injury to have been committed by continuation from one given day to another (which is called laying the action with a continuando), and the plaintiff shall not be compelled to bring sepa

(7) See 2 Book, p. 151. Upon these statutes it has been determined, that it is not necessary that the notice from the tenant should be in writing; but notice from the landlord to the tenant must. Burr. 1603. Bla. Rep. 533. And the 4 Geo. II. extends to cases where the tenant holds over fraudulently and perversely only, not where he continues his possession under a bona fide claim of right. 5 Esp. 203. See also ib. 215. The action for double rent may be maintained aften recovery in ejectment. 9 East, 310.