ment and a writ of possession shall go for Richard Smith, the nominal plaintiff, who by this trial has proved the right of John Rogers, his supposed lessor.

Protection of real parties. Yet, to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land, all tenants are obliged by statute 11 Geo. II, c. 19, on pain of forfeiting three years' rent, to give notice to their landlords, when served with any declaration in ejectment: and any landlord may by leave of the court be made a co-defendant to the action, in case the tenant himself appears to it; or, if he makes default, though judgment must be then signed against the casual ejector, yet execution shall be stayed, in case the landlord applies to be made a defendant, and enters into the common rule; a right, which indeed the landlord had long before the provision of this statute; (v) in like manner as (previous to the statute of Westm. 2, c. 3) if in a real action the tenant of the freehold made default, the remainder-man or reversioner had a right to come in and defend the possession; lest, if judgment were had against the tenant, the estate of those behind should be turned to a naked right. (w) But, if the new defendants, whether landlord, or tenant, or both, after entering into the common rule, fail to appear on the trial, and to confess lease, entry, and ouster, the plaintiff, Smith, must indeed be there nonsuited, for want of proving those requisites; but judgment will in the end be entered against the casual ejector Stiles; for the condition on which Saunders, or his landlord, was admitted a defendant is broken, and, therefore, the plaintiff is put again in the *same situation as if [*205] he never had appeared at all; the consequence of which (we have seen) would have been, that judgment would have been entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered possession to Smith. The same process, therefore, as would have been had, provided no conditional rule had been ever made, must now be pursued as soon as the condition is broken.1

(v) Styl. Prac. Reg. 108, 111, 265. 7 Mod. 70. Salk. 257. Burr. 1301. (w) Bracton, l. 5. tr. 4. c. 10, § 14.

1 The proceedings for the recovery of land are now in England as simple as in any other case.

In the United States ejectment is now generally commenced by filing declaration or complaint against the party in possession, setting forth, in general terms, that the plaintiff is entitled to the possession of the premises, describing the same, and that he claims the same in fee-simple (or otherwise, as the case may be), and that the defendant unlawfully withholds the same. A copy of this declaration or complaint is served on the defendant, and unless he pleads or answers to it within the time prescribed by statute or rule of court, judgment niay pass against him by default. In some states parties not

in possession, but who claim rights in the premises, are allowed to be made co-defendants, and in others, ejectment may be brought to try conflicting rights when the premises are not occupied at all. In general, means are prescribed by which the defeated party in the action can have a second trial as of right. If the plaintiff succeeds, he is allowed to have damages assessed by a proceeding in the same suit.

And in many of the states statutes will be found allowing the defendant, who has been in possession claiming title, to recover of the successful plaintiff the value of his improvements or "betterments" in certain classes of

cases.

The damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) very small and inadequate; amounting commonly to one shilling, or some other trivial sum. In order, therefore, to complete the remedy, when the possession has been long detained from him that had the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his lessor, against the tenant in possession: whether he be made a party to the ejectment, or suffers judgment to go by default. (a) In this case the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff; but if the plaintiff sues for any antecedent profits, the defendant may make a new defense.

Object and utility of the fictions.- 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 assize, 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 the *judges) (y) [*206] are "judicially to be considered as the fictitious 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 to trial on the merits, without being entangled in the nicety of pleadings on either side."

When ejectment improper. 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: (2) 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 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.

Anomalous use. 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 nonpayment of rent, when half a year's rent is due, and no sufficient

(x) Burr. 668. (a) Cro. Car. 301.

(y) Mich. 32 Geo. II. Burr. 668. 2 Lord Raym, 789.

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

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.

2. Ejectment against assignee of leases.-The writ of quare ejecit infra terminum lieth, by the ancient law, where the wrongdoer or ejector is not himself in *possession of the lands, [*207] 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 firmo or ejectment 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.1

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 defined.-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. Therefore 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 tres

(b) F. N. B. 198.

1It was abolished by statute 3 and 4 Wm. IV, c. 27, s. 36.

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 trespass, upon which an action of trespass on the case in assump sit 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 [*209] necessarily accompanied with some force, an action of trespass vi et armis (by force and arms) will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

66

Entry on land. 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 præviderit, prohiberi ne ingrediatur" (he who enters on another's land may be resisted by the owner if he shall have previously forbidden it). (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 (quantity) of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained.

What constitutes.- 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 show cause quare clausum querentis fregit. For every man's land is, in the eye of the law, enclosed and set apart from his neighbor'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 [*210] adjoins to 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 herbage. (c)

[That is, the party may elect, in case the goods are actually seized, to consider the act a conversion.]

1

Who may maintain the action.- 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. (f) 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 plaintiff 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 re-entry the law, by a kind of jus postliminii (remitter), 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 merely 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 seized jure uxoris (in right of his wife), or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over [*211] and continue in the possession of 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 for 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

1 To entitle one to maintain trespass he must have possession: Mather v. Ministers, &c., 3 S. and R. 509; Wheeler v. Hotchkiss, 10 Conn. 225; unless the lands are wild or vacant, in which case the party having title has sufficient constructive possession for the purposes of this suit. Goodrich v. Hathaway, 1 Vt. 485; Van Rensselaer v. Van Rensselaer, 9 Johns. 377. See Gardner v. Hart, 1 N. Y. 528. In other cases it is not necessary for the plaintiff to show title; but every unwarrantable entry upon a peaceable possession is a

trespass. Palmer v. Aldridge, 16 Barb. 131; Wells v. Howell, 19 Johns. 385; Brown v. McCloud, 3 Head, 280. And one who uses the highway for purposes other than those for which the public easement exists, is liable in trespass to the owner of the fee. Avery v. Maxwell, 4 N. H. 36; Mayhew v. Norton, 17 Pick. 357; Adams v. Rivers, 11 Barb. 390. If lands are occupied by a tenant, he, and not the lessor, must bring trespass against a stranger for unlawful disturbance of the possession. Campbell v. Arnold, 1 Johns. 512.