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 justice; because the form of the proceeding being entirely fictitious, 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 [206] the judges) (y) are "judicially to be considered as the fictitious.

(y) Mich. 32 Geo. II. 4 Burr. 668.

form of al 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 to 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 alı 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 (2): except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII. c. 7. which doctrine hati. since been extended by analogy to tithes in the hands of 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 haif 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 (15), (16).

2. The writ of quare ejecit infra terminum13lieth, by the ancient law, where the wrongdoer or ejector is not himself in "possession [*207] of 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

(z) Brownl. 129. Cro. Car. 492. Stra. 54.

(15) 2 R. S. 505, § 30, &c.

(16) 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 sunsel. 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.

(a) Cro. Car. 301. 2 Lord Raym. 789. In such case, after fourteen days' notice, the justices may put the landlord in possession; and the 57 Geo. III. c. 52. extends the regula tion to such tenants as are half a year in arrear. As to the proceeding of the justices under these acts, and how far the record of such proceedings will be conclusive in their behalf, see 3 Bar. & Cres. 649.

Difficulties having frequently arisen, ano 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 churchwardens and overseers. The mode of proceeding is prescribed by this statute. The visitors and feoffees of a "ee gramma school, who have dismissed the school-master 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. 35. 8 T. R. 109. (43) See Hov. n. (43) at the end of the Vol. B TII

The 11 Geo. II. c. 19. s. 16. gives the land.ord a summary remedy by application to two justices of the peace where a tenant at rackrent, 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 anoccupied, and no sufficient distress thereon.

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 pro vided (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 (17).

(b) F. N. B. 198.

(17) In New-York the Revised Statutes have essentially altered the action of eject. ment; all the old fictions are abolished. The plaintiff is the person actually claiming title, and the defendant must be an actual occupant of the lands, or, if there be no occupant, he must be a person claiming title. The action is commenced by serving a copy of the declaration on the defendant, and also a notice subjoined in writing, stating that the declaration will be filed on some specified day in the same term, if it be term time, or else in the next term; and that a rule will then be entered requiring him to appear and plead in 20 days, or judgment will be entered against him and he be deprived of the premises. The declaration must be served on the defendant personally, or on some person of suitable age at his residence: but if it be not served personally, the rule to plead cannot be entered without the special order of the court.

The declaration states that the plaintiff was possessed of the premises on some specified day after his title accrued, and that the defendant, on some subsequent specified day, entered and withholds them unlawfully from the plaintiff to his damage any nominal sum.

The premises must be described with such certainty that possession of them can be delivered. The plaintiff must also state whether he claims the whole or an undivided share, and what that share is; whether he claims in fee, for his own life or the life of another, or for a term of years; and must specify such lives and the duration of the term. If the action be to recover dower, the widow states that she was possessed of an undivided third part of the premises as her reasonable dower as widow of her husband, naming him.

In any case (except of dower) there may be several counts, and several parties may be named as plaintiffs, jointly in one count and separately in others.

The consent rule, and the confession of lease, entry, and ouster, being thus made un necessary, are abolished.

The defendant may by rule of court or order of a judge, compel the attorney for the plaintiff to produce his authority to sue the Droceedings then are as in ordinary actions until the verdict, except that the defendant

can only plead the general issue or demur. The verdict specifies minutely which of the plaintiffs is entitled to recover, and against which of the defendants; also, whether he is to recover the whole or an undivided share, the fee, or a smaller specified estate.

This action may be brought as well where a writ of right or dower before lay, as in the cases formerly allowed for the action of ejectment: but cannot be brought by a mortgagee, or his assigns or representatives.

As to the conclusiveness of the judgment, see ante, note 15. p. 194.

The

Instead of the action for mense profits, the plaintiff, in one year after judgment, enters on the record a suggestion of his claim, which is in the same form as the declaration for use and occupation; but is served in the same way as the declaration in ejectment. rule to plead and other proceedings are then as in ordinary personal actions. But the defendant cannot controvert the matters that might have been controverted in the ejectment suit: he may, however, show in mitigation of damages a subsequent recovery by himself or another of the same premises, or of a part thereof: he may also show the actual time at which he entered. If the action be for dower, commissioners are appointed to make admeasurement of dower. (2 R. S. 303-312.)

By the 2 R. S. 312, &c., a person being three years in possession of lands or tenements, and claiming the fee, may compel any claimant to come into the Supreme Court and controvert the plaintiff's title, or be forever barred. But if the claimant be under any of the usual disabilities, the plaintiff cannot proceed in this way. See ante, p. 178, note (†).

Summary proceedings are also allowed (2 R. S. 512, &c.) against a tenant who holds over after the expiration of his te m, or after taking the benefit of any insolvent act, or act for the relief of his person from imprisonment, or after a sale under an execution against him, and the title under such sale be coming perfected, or after default in payment of rent, while in this last case no goods are on the premises sufficient to satisfy the rent by distress: or if the tenant leaves the premi ses unoccupied and uncultivated and there are not sufficient goods to satisfy such distress

CHAPTER XII.

OF TRESPASS (1).

IN .he two preceding chapters we have considered such injuries to rea 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.

Therefore

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 offence 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. beating another is a trespass; for which (as we have formerly seen) an action 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 trespass 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 trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified, is a transgression 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 property of another, *and therefore necessarily accompanied with some force, [*209] an action of trespass vi et armis will lie; but, if the injury is only zonsequential, a special action of trespass on the case may be brought (2)

(a) See page 123.

(1) See in general, Com. Dig. Trespass; Bac. Ab. Trespass; Vin. Ab. Trespass; 1 Chitty on Pl. 149 to 172.

(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. Pep. 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 trespass vi et armis, or an action upon the case; and ore of the four judges strenuously contended that it ought to have been an action apon the case. But I should conceive, that he 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 one man drives a carriage, being on the wrong side of the road, against another carriage, though uninten tionally, the action ought to be trespass vi et armis, and the court declare generally, that i 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 al the cases both ancient and modern.

In New-York, by 2 R. S. 553, § '6, case may be brought wherever trespass could, exner. for wrongs to real estate

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 alienum fundum ingreditur, potest a domino, si is praeviderit, prohiberi ne ingredia tur (b)." But the law of England, justly considering that much inconve nience 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 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, [*210] *existing only in the contemplation of law, as when one man's

land adjoins to another's in the same field (4). 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 herbage (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) (6). Thus if a meadow be

(b) Inst. 2. 1. 12.

(c) F. N. B. 87, 88.

(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. 3 East, 405.†

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

2

(d) Dyer, 285. 2 Roll. Abr. 549.

(6) As to the possession and title essential, see Chitty on Pl. 159 10 166. An exclusive interest in the crop, without an interest in the soil, is sufficient to sustain an action of tres pass. 3 Burr. 1826. Bro. Abr. Tres. 273 Bull. N. P. 85. But possession, actual or constructive, must be proved. East, 244. 4 Taunt. 547. 6 East, 602. Trespass will not lie for entering a pew or seat, because the plaintiff has not the exclusive possession, the possession of the church being in the parson iT. R. 430. If trees are excepted in the lease, the land whereon they grow is necessarily ex cepted 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 f

+ See in New-York, 2 R. S. 614, § 12.