The tiffs, and that therefore the action was not maintainable. learned judge told the jury that, if the evidence satisfied them that there had been an actual expulsion of the plaintiffs from the house by the defendant, their verdict ought to be for the plaintiffs. The jury found for the plaintiffs; damages 351. The defendant afterwards obtained a rule to show cause why a nonsuit should not be entered (pursuant to leave given at the trial), on the ground that one tenant in common cannot maintain trespass against another, even though there has been an actual expulsion. On showing cause, it was argued (before the Lord Chief Justice, and Justices Coltman, Cresswell, and V. Williams) that this defence, even if sustainable, ought to have been specially pleaded. It is unnecessary to give any opinion on this point, for we are of opinion that the defence is not sustainable. The court has felt some difficulty on the question, by reason only of the doubts expressed by Littledale, J., in his judgment in Cubitt v. Porter, 8 B. & C. 269. That learned judge there said, that although if there has been actual ouster by one tenant in common, ejectment will lie at the suit of the other, yet he was not aware that trespass would lie; for that in trespass the breaking and entering is the gist of the action, and the expulsion or ouster is a mere aggravation of the trespass; and that, therefore, if the original trespass be lawful, trespass will not lie. It appears, however, to us difficult to understand why trespass should not lie, if ejectment (which includes trespass) may be maintained (as it confessedly may) on an actual ouster. And, as it has been further established, in the case of Goodtitle v. Tombs, 3 Wils. 118, that a tenant in common may maintain an action of trespass for mesne profits against his companion, it appears to us that there is no real foundation for the doubts suggested. We are, therefore, of opinion that the direction of Maule, J., at the trial, was right; and consequently this rule must be discharged. Rule discharged. Historical. Whether trespasses upon lands, not in the nature of a disseizin, were subjects of civil, redress before the time of Bracton we are not able certainly to determine. Where the trespass operated, or could be treated by election, as a disseizin, redress was obtained by an assize of novel disseizin. So, too, for certain nuisances to a man's freehold an assize was the remedy. Glanvill, lib. 13, c. the assize itself was turned into a jury 34, 35. See note on Nuisance. In the time of Glanvill, questions relating to lands, when not tried by battle, were tried by an assize; the assize being a jury to decide the right to seizin. The term "trial by jury" had then a technical signification, and embraced only issues not tried by an assize. The latter was itself a trial by jurors, like the former, but it signified the trial of a real action. Trial by jury, however, or, as it was more commonly called, a recognition, often occurred in the course of an assize; as where certain issues were formed on matters preliminary to the question of seizin. In such cases the sheriff was commanded to summon other jurors (recognitors) to try the issue. But whether every issue that might be raised in the course of an assize could be so tried does not appear. Glanvill himself mentions only a few cases for a recognition; such incidental issues being generally tried by battle. He makes no mention of issues of trespass under either mode of trial; and it does not appear whether at this time, if the act complained of were only a trespass, and could not be treated as like a disseizin, the demandant could recover judgment of damages. See as to the above, book 13 of Glanvill, and 1 Reeves's Hist. Eng. Law, pp. 352-354, Finl. ed. In the time of Bracton, however, a considerable advance had been made. Besides the frequent substitution of the recognition for the trial by battle, a new and less cumbersome method of trying incidental questions in an assize had been adopted. Instead of summoning new jurors for the trial of every issue of fact that was raised in an assize, (assisa vertitur in juratam) to try the question; and we now find the first mention of trespasses upon land. Bracton (lib. 4, c. 34, § 5, p. 216 b) says, "Vertitur etiam assisa quandoque in juratam propter transgressionem;" as where a person made use of another's land against the owner's will, or where he kept out his cotenants, in the case of land held in common, or where he was guilty of an abuse of land not his own; such acts were both a disseizin and a trespass. If the defendant had entered without a claim of right, says Bracton, the act was only a trespass and not a disseizin. But since it was uncertain with what intent the entry had been made, the plaintiff brought an assize, in which case the judge would determine of the intent, and if it appeared that the defendant had been led into the act errore probabili vel ignorantia, sed non crassa, and had so cut down trees or grass, but not in the name of seizin, the disseizin was excused, and the act considered only as a trespass; for which, if he confessed, he was to make amends; but if he denied the trespass, the assize was turned into a jury to inquire of the trespass, and by this the defendant was to stand or fall. See also 1 Nichols's Britton, 343. From which it appears that at this time, whatever may have been the case when Glanvill wrote, damages for trespass could be recovered in the assize, sitting as such; and this was probably so when the trial proceeded per juratam. At all events, punishment (pœna) could be inflicted. 216b. There was thus no need of a distinct action for mesne profits; which fact appears more fully from what is 1 Or, after the time for the assize had passed, by a writ of right in the Lord's Court. Glanvill, lib. 9, c. 11-14. stated in Britton. This author says that after judgment for the plaintiff in the assize, "let it be inquired of the jurors what damages the disseizors and the tenants have committed in houses, woods, gardens, warrens, vivaries, parks, rabbit-warrens, and elsewhere, and how much has or might have been by good husbandry received in the mean time of all kinds of issues of the tenement, and what profit in value the plaintiff might have had if he had not been disseized; and it shall be awarded accordingly that the plaintiff recover his full damages. And if the justices perceive that the jurors are disposed to relieve the disseizor by assessing light damages, because, on the other hand, they have made him suffer by the loss of the tenement, let the lands be extended by the same jurors at their true value in the presence of the parties, if they will be there; and according to the yearly value let the damages be taxed by the justices, single or double, according to the ordinance of our statutes, and according as the assize shall have been falsely defended or not." 1 Nichols's Britton, 357. And it is added that if the disseizors have taken away or detained any thing from the plaintiff, he may have damages for this also in the assize, or bring an appeal of robbery or a writ of trespass. Ib. p. 358. See infra. (In Glanvill, a special writ is given, founded on the recovery of the land. Lib. 12, c. 18.) And damages could be taxed for injuries to the tenement which had happened without the fault of the disseizor, as for houses which had been burnt by accident. lb. In the time of Bracton the law was similar; and we are told that a triple punishment might follow the judgment in an assize of novel disseizin, to wit, cor poral punishment for the spoliation, pecuniary punishment for the unjust detention, and the same for the damages which the demandant had sustained medio tempore spoliationis. Bracton, 161 b. See also ib. 218 b. But until the Statute of Gloucester, c. 1 (6 Edw. 1), passed about fifteen years before Britton wrote, the demandant's remedy was confined to the disseizor only; and the consequence was that, if he aliened or was disseized, his alienee or disseizor escaped. This statute remedied the defect in the common law, by providing that, "if the disseizors do aliene the lands, and have not whereof there may be damages levied, they to whose hand such tenements shall come shall be charged with the damages, so that every one shall answer for his time." This act also provided that the disseizee should recover damages as well in a writ of entry upon disseizin against the alienee of the disseizor. (The above act is further interesting as making the first provision for the recovery of costs. "And, whereas beforetime damages were not taxed but to the value of the issues of the land, it is provided that the demandant may recover against the tenant the costs of his writ purchased, together with the damages abovesaid. And this act shall hold place in all cases where the party is to recover damages." See 2 Inst. 283, 288). The injured party was now fully protected, and there was no special need of the action of trespass for the breaking and entering, or for mesne profits, which in subsequent times became the common forms of remedy. There was, indeed, a writ of trespass quare clausum fregit in existence in the time of Bracton, but it was rarely used. Bracton disapproved of it, as being a writ by which the mode of the fact was to be inquired of instead of the fact itself. 2 Reeves's Hist. Eng. Law, 216, 217, Finl. ed. (The passage in Bracton is not cited, and we have not been able to find it.) Assize was the ancient, and had been the universal, remedy for injuries to land. It was resorted to back in the time of Glanvill as well for indirect disseizins, by nuisance, for example, as for the ordinary disseizin of actual entry (see note on Nuisance); and now it was so much favored as to be brought even in cases of wrongful distress. Bracton, 217. And so it was afterwards in the time of Britton. 1 Nich. Brit. 344. See also Bracton, 210 b, c. 30, for other cases of assize. In the reign of Edward 2 the action of trespass had gained ground, and numerous cases are reported where it was brought for injuries to lands; cases, too, in which the issue was upon soil and freehold in the plaintiff. Thus, in trespass for beating down a dovehouse, the defendant pleaded that it was within his soil and freehold. The plaintiff objected that the question of freehold could not be tried in an action of trespass; and therefore he averred his writ, that the defendant had torn down his dove-house. The defendant then set forth his title; and the plaintiff was driven to reply to the special matter thus, that the defendant beat down the plaintiff's dove-house, in the plaintiff's soil, and not in the defendant's. 15 Edw. 2, p. 457. See also 3 Edw. 2, p. 63; 2 Reeves's Hist. Eng. Law, ut supra. Trespass thus became in actual practice a concurrent remedy with assize for injuries to real property. But the injured party could not maintain both actions at the same time. In one case the defendant, to trespass for breaking and entering the plaintiff's house and carrying away his goods, pleaded that an assize of novel disseizin was then pending in respect of the very same land and injury; and the plea was held good. 8 Edw. 2, p. 272. There were some advantages in a proceeding by trespass over the assize, which may account for the general preference for the former action. If the sheriff returned nihil habet upon the distress warrant, a process of capias issued, upon application, and if the defendant could not be found in the county, a process of outlawry followed. 16 Edw. 2, p. 478; 1 Nichols's Britton, 129; Bracton, 440 b, 441; 1 Reeves's Hist. 454, 455, Finl. ed.; 2 ib. 218. (But trespass could not be maintained against a corporation, since a capias could not issue against it. 22 Lib. Ass. pl. 67.) Trespass now began to be the common remedy where the injury was not a disseizin; and long before the time of Lord Coke it appears to have been the usual mode of redress for mesne profits after a disseizin. See Liford's Case, 11 Coke, 45, 51b. And when the old real actions came to be superseded by the action of ejectment,' trespass, or assumpsit for use and occupation, was the only mode of obtaining satisfaction for the loss of the issues of the land during the disseizin. 1 Chitty, Pleading. See infra. The wisdom, however, of the early law in allowing a recovery in the real action of damages for such loss, thus saving the expense and delay of a double litigation, is obvious; and comparatively recent statutes have, in some of the States at 1 It is curious to observe the transformation by which ejectment, from a simple action of trespass, in which damages only were sought, came finally to be an action for the recovery of the land only. See 3 Reeves's Hist. Eng. Law, 177–180, 759-762, Finl. ed. in the thirteenth century. least, put the law again where it stood defendant to show that the plaintiff had not lost the goods: ib., note a; ib. 87, note a; the law upon this point being the same as now. Of the many writs of trespass to lands the following may be selected as fairly representing the action: "The king to the sheriff, greeting. If A. shall make you secure, &c., then put, &c., B., &c., wherefore with force and arms he broke the close of him the said A., at N., and therein, without his license and will, chased, and took and carried away so many conies, of such a price, and other enormous things to him did, to the great damage of him the said A., and against our peace. And have there the names of the pledges and this writ. Witness," &c. Fitzh. Nat. Brev. 87. (The trespass was for the breaking and entering, and not for the conies. Ib.) Where grass or crops were injured the writ ran : 'Wherefore, &c., the herbage of him the said A., at N., lately growing, or the corn of him the said A., at N., lately growing, to the value of ten pounds, with certain cattle he depastured, trod down, and consumed, and other," &c. Several acts of trespass were often united, thus: "Wherefore, &c., he broke the houses of him the said A., at N., and cut down his trees there lately growing, and fished in his fish-ponds there, and took and carried away the fish thereof and the trees aforesaid, and there took and impounded his beasts of the plough, and detained them so long time impounded that forty acres of land of the same A. for a great while remained untilled, and took and carried away the doves of his dove-cot there, with nets and other engines, whereby the same A. wholly lost a flight of his dove-cot, and other," &c. Ib. 88. The gist of the action in these cases was the entry, and the other acts were only aggravation; and, therefore, it was but mitigation of damages for the In Bracton's time (as ever since) the possession of a wrong-doer was protected against strangers. 165, 166b, 184, 184b, 196. Comp. Dig. lib. 43, tit. 17, 2. As to injuries to a man in respect of his goods, if the property was detained or stolen, the law (apart from redress in a real action) gave restitution in the one case by the writ of detinue or replevin, and in the other by an appeal of felony or by a writ of trespass. As to larcenies and robberies committed in time of peace, where the offenders were not freshly pursued with hue-and-cry, Britton says that the owners of the things should have their suit by appeal of felony within the year and day as in other felonies, but after that time their right of appeal was to cease, and the suit to belong to the king only. If the plaintiffs brought their suit in form of trespass, they were to be heard if they had not before begun suit in form of felony; and the judgment in trespass was a bar to an appeal by the king, though if the plaintiff abandoned his suit, it was otherwise. 1 Nichols's Britton, 118. The difference between the two proceedings, in the result, was that in the appeal of robbery the thing taken was to be restored: 3 Reeves's Hist. 330, Finl. ed.; while in trespass, the plaintiff sought damages for the loss of his goods. The property could not, however, be recovered in the case of an indictment, until by the St. 21 Hen. 8, c. 11, the rule of the common law was extended. Ib. This statute provided, that if a man robbed or took away any money, goods, or chattels, from the person or otherwise, and was indicted, arraigned, and found guilty, or otherwise attainted, the person robbed or the owner of the |