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 party to the ejectment or suffers judgment to go by default. (x) 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 defence. (28)

(x) 4 Burr. 668.

ment, resort to this separate action is superseded by sect. 2 of stat. I Geo. IV. c. 87, which enacts, "Wherever thereafter it shall appear on the trial of any ejectment, at the suit of a landlord against a tenant, that such tenant or his attorney hath been served with due notice of trial, the plaintiff shall not be non-suited for default of the defendant's appearauce, or of confession of lease, entry, and ouster; but the production of the consent rule and undertaking of the defendant shall in all such cases be sufficient evidence of lease, entry, aud ouster; and the judge before whom such cause shall come on to be tried shall, whether the defendant shall appear upon such trial or not, permit the plaintiff on the trial, after proof of his right to recover possession of the whole or of any part of the premises mentioned in the declaration, to go into evidence of the mesne profits thereof which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same down to the time of the verdict given in the cause, or to some preceding day, to be specially mentioned therein; and the jury on the trial finding for the plaintiff shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits. The said act not to bar the landlord from bringing trespass for the mesne profits to accrue from the verdict or the day so specified therein down to the day of the delivery of possession of the premises recovered in the ejectment."-CHITTY.

The action to recover mesne profits is an action quare clausum fregit [Why did he break the close], and cannot be maintained without proof of the trespass. Thompson v. Bower, 60 Barb. 463, 478 (N. Y. 1871). City of Apalachicola v. Apalachicola Land Co., 9 Fla. 340, 349 (1861).

(28) Sumter v. Lelie, I Treadw. 102, 105 (S. C. 1812). The defendant may plead the statute of limitations, and by that means protect himself from the payment of all mesne profits except those which have accrued within the last six years. Bull. N. P. 88. The common remedy by ejectment is generally treated as a mixed action, the party interested thereby recovering his estate and damages for the ouster; but as those damages are nominal, and the claimant must in order to recover the intermediate profits resort to an action of trespass, such action of ejectment is in substance merely for the recovery of the estate. But in one instance, in favor of landlords, a remedy by ejectment is given nearly resembling the ancient and mixed action; for it is enacted by 1 Geo. IV. c. 87, that upon refusal by a late tenant to deliver up possession upon the expiration of his tenancy by lease or written agreement, and after lawful demand in writing, the landlord, on bringing an ejectment, may address a notice at the foot of the declaration to the tenant, requiring him to appear in court on the first day of the next term, or if in Wales, or the counties palatine of Chester, Lancaster, or Durham, on the first day of the assizes, or appearance-day, there to be made defendant, and to find bail; or in case of his nonappearance, upon production of the lease, agreement, etc. and the proper affidavits by the landlord, etc., the court may grant a rule, calling on the tenant to show cause why he should not, upon being admitted defendant, besides entering into the common rule, undertake, in case a verdict should pass against him, to give the plaintiff a judgment, to be entered up against the real defendant of the term next preceding the trial, and also why he should not enter into a recognizance by himself and two sufficient sureties in a reasonable sum (to be named) conditioned to pay the costs and damages which shall be recovered by the plaintiff in the action. Upon the rule being made absolute, if the tenant do not conform, judgment to be for the plaintiff. The act further provides that, whether the defendant appear or not at the trial, the plaintiff may go into proof, and the jury give damages for mesne profits down to the verdict or a day specified therein. See I Dowl. & Ryl. 433. But when the required undertaking is given, it is provided that if it appear to the judge that the finding of the jury was contrary to the evidence, he may order a stay of execution till the fifth day of the next term; and he is bound to make this order if the defendant desire it, upon his undertaking to give security not to commit any kind of waste, or sell the crops, etc. And if the result of the trial under this act be against the landlord, the tenant shall have judgment with double costs.

"It sufficiently appears on the whole record in the ejectment, that the plaintiff was in possession, that the defendant ousted him on a certain day, and detained the possession

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; [*206 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) 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." (29)

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

until the trial; so that the action is not for a single act of trespass; and, therefore, the jury may well give damages for the whole time the wrong continued." Boyd's Lessee v. Cowan, 4 Dall. 138, 139 (Pa. 1794).

The judgment "is conclusive as to title, for the whole time laid in the demise. But if the plaintiff would recover the profits beyond the time of the demise, the defendant may put him to prove his title, because the record only shows that he recovered the term mentioned in the declaration. Bailey v. Fairplay, 6 Binn. 450, 455 (Pa. 1814).

The statute I Geo. IV. c. 87 does not extend to the case of a lessee holding over after notice to quit, given by himself, where his tenancy has not expired by the efflux of time. 1 Dowl. & Ryl. 540. And where a tenant holds from year to year, without a lease or agreement in writing, it is not within the first section of the statute, (1 Geo. IV. c. 87). 5 B. & A. 770. But an agreement in writing, for apartments for three months certain comes within the meaning of the words of the act, where the party holds for any term, or number of years certain, or from year to year. 5 B. & A. 766. I Dowl. & Ryl. 433. A tenant being in possession, under an agreement that the landlord should grant a lease for eight years, and that the tenant should pay 40s. for every day he held over, continued to hold the whole time, though the lease was never granted; and, upon his holding over, notice to quit and demand of possession, with notice of ejectment, was regularly served. It was held that the tenant was not to be treated as a tenant from year to year, and that the demand of possession was sufficient notice within the statute, so as to entitle the plaintiff to the benefit of the undertaking and security required by that statute. 2 Dowl. & Ryl. 565.

The rule nisi, calling on a tenant to enter into a recognizance under this statute, need not specify all the particulars thereby required, as the court may mould the rule according to its requisites, upon showing cause. 5 B. & A. 766. I Dowl. & Ryl. 433. The time within which the undertaking and security required by the statute shall be given is to be fixed by the court at the time the rule is granted. 2 Dowl. & Ryl. 688. After a rule granted in a cause entitled Doe, etc. v. Roe, to which the tenant in possession appeared, judgment was entered up and execution taken out against the tenant by name, and it was held not to be irregular. 3 Dowl. & Ryl. 230.

The court, on making a rule absolute under this act (no cause being shown) for the tenant's undertaking to give the plaintiff judgment, to be entered up against the real defendant, and to enter into a recognizance in a reasonable sum conditioned to pay the costs and damages which should be recovered by the plaintiff in the action, ordered the tenant to appear in the next succeeding term, to find such bail as was specified in the former rule; and, on no cause being shown 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, etc.-CHITTY.

(29) Read v. Read, 5 Call 160, 183 (Va. 1804). Actions of ejectment, as has been observed, have succeeded to those real actions called possessory actions; but an inconvenience was found to result from them which did not follow from real actions, to which it has been found necessary to apply a remedy. Real actions could not be brought twice for the same thing; but a person might bring as many ejectments as he pleased,-which rendered the rights of parties subject to endless litigation. To remedy this, therefore, when two or more verdicts have been had upon the same title, and to the satisfaction of

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)(30) except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII. c. 7,(31) which doctrine hath since been extended, by analogy, to tithes in the hands of the clergy:(a)(32) nor will it lie in such cases where the entry of him that hath the 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 ejectments 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. (33)

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

(a) Cro. Car. 301. 2 Lord Raym. 789.

the court, the courts of equity will now grant a perpetual injunction to restrain the party from bringing any further ejectment. See Barefoot v. Fry, Bunb. 158, pl. 228. Selw. N. P. 780.-ARCHBOLD.

Under all the changes of practice and the purposes to which the action of ejectment is applied, it has been permitted to be brought only against some person in possession, exercising acts of ownership, and claiming title; and this possession must be exclusive of the public, to authorize the action to be brought against an individual as occupant. Redfield v. U. & S. R. R. Co., 25 Barb. 54, 58 (N. Y. 1851). As a general rule, any real property for the recovery of which an action of ejectment will lie, may be held adversely, and any interest in lands for which the action will not lie cannot. Newell on Ejectment, 722 (1892.)

(30) Witherow v. Kellar, 11 S. & R. 271, 274 (Pa. 1824). Den ex dem Farley v. Craig, 3 Green 191, 128 (N. J. 1836). Redfield v. U. & S. R. R. Co., 25 Barb. 54, 60 (N. Y. 1851). Taylor's Landlord and Tenant, 588 (7 ed. 1879).

(31) Rowan v. Kelsey, 18 Barb. 484, 488 (N. Y. 1854).

(32) Browne on Actions of Law, 462.

(33) 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. I Saund. 287, n. 16. 7

T. R. 117.

The II 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 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 deliv ered to church-wardens and overseers. The mode of proceeding is prescribed by this statute. The visitors and feoffees of a free grammar-school who have dismissed the school-master for misconduct cannot maintain ejectment for the school-house till they

*2. The writ of quare ejecit infra terminum (34) lieth, by the ancient [*207 law, where the wrong-doer or ejector is not himself in possession 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 firma 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 of 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. (35)

CHAPTER XII.

OF TRESPASS.

*IN the two preceding chapters we have considered such injuries to [*208 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 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. (1) 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 trespass vi et armis, or on the case in trover and conversion, is given by the law, (2) 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, an action of trespass vi et armis (3) will lie; (b) F. N. B. 198.

(a) See page 123.

[*209

1 Bing.

have determined the master's interests therein, upon summons in the ordinary manner, when he might be heard to answer the charges forming the ground of dismissal. 357, 8 T. R. 109.-CHITTY.

(34) [Wherefore or why did he eject within the term.]

(35) And has now been for some time abolished. 3 & 4 W. IV. c. 27, s. 36.-STEWART. (1) Grunson v. The State, 89 Ind. 533, 536 (1883). Watson v. State of Mississippi, 36 Miss. 593, 611 (1859). See 1 Waterman on Trespass, 33, 34 (1875).

(2) Robinson v. Woodford, 37 W. Va. 379 (1893).

(3) [By force and arms.]

but, if the injury is only consequential, a special action of trespass on the case may be brought. (4)

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. (5) For the right of meum and tuum, (6) 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. (7) The Roman laws seem to have made a direct prohibition

(4) See these distinctions fully considered, I 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 one man drives a carriage, being on the wrong side of the road, against another carriage, though unintentionally, the action ought to be trespass vi et armis [With force and arms].-CHRISTIAN.

If the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured thereby, it is the subject of an action of trespass vi et armis, by all the cases, both ancient and modern, and it is immaterial whether the injury be wilful or not. Newsom v. Anderson, 2 Ired. 42, 43 (N. C. 1841). The contrary doctrine was expressed by chief-justice Shaw, of Massachusetts, in Brown v. Kendall (6 Cushing, 292). He says, "It is frequently stated by judges that where one receives injury from the direct act of another, trespass will lie... These dicta are no authority, we think, for holding that damage received by a direct act of force from another will be sufficient to maintain an action of trespass, whether the act was lawful or unlawful, and neither wilful, intentional, or careless. We think as the result of all the authorities, that the rule is that the plaintiff must come prepared with evidence to show that the intention was unlawful, or that the defendant was in fault, for if the injury was unavoidable and the conduct of the defendant was free from blame, he will not be held liable." This is quoted with approval in Loser v. Buchanan, 51 N. Y. (6 Sickels). "The selling by a sheriff, under execution, of more of the goods of a defendant, than are sufficient to satisfy the process, will render him liable (to the extent of the additional goods sold) to the action of trespass." Roberts v. Beeson, 4 Porter, 164, 168 (Ala. 1836). Berry v. Mo. Pac. Ry. Co., 124 Mo. 223, 292 (1894). "The intent of the wrong-doer is not material to the form of the action; neither is it generally important whether the original act was or was not legal." 2 Greenleaf on Evidence, 224. Bristol Mfg. Co. v. Gridley, 28 Conn. 201, 214 (1859).

(5) Landlord and Tenant in Pennsylvania, Jackson & Gross, 651 (2 ed. 1884). Binns' Justice, 83 (10 ed. Brightly, 1895). As water is a distinct thing from land, no action of trespass is sustainable for poisoning the water on a person's land. Mitchell v. Warner, 5 Conn. 497, 519 (1825).

(6) [Mine and thine.]

(7) Worrall v. Rhoads, 2 Whart. 427, 430 (Pa. 1837). Every entry on land without the owner's leave, or the license or authority of law, is a trespass. Newkirk v. Sabler, 9 Barb. 652, 654 (N. Y. 1850). Where A.'s servant by his order took his property on B.'s land after A. had been forbidden crossing the same, and B. detained the property, A. had no right to enter to regain possession after having been forbidden to do so by B. Newkirk