er of juilles ce: prank the fort ef the proceedin : Being CFLIGAN POTTIOLU, it is whoir in the power of the court to direct L... dy Puze.io.c LA BLUO2, 1 Let ́ prevent frau, and cle Cam, dir, eviterate the very truth of the is. The wn: 0: nomikai parte 2 wa retorve. all the

alt ** juurtaly to a conferred as the fictious jorn of an action, reair" brought of the refer ct the plan.* tit again! the tenant i poñelion: mvented, under the kerno" air power of the court, for the advancement ci justice i. man" respects; and to force the parties to go to Baal of the merit, without oemy intangic in the nicety "of piraling, or ether hat."

b: a wir of electmen is not ar adequate mean to try the lite of a citates for on the things, whereon an entry cannon fact i made, no entry inal ac fuppofed by any Ection of the parties. Therefore an ejectment will not lie of abanovín, 2 rent, a commor or other incorporeal heredita ment 4: except for title in tin hands of lav appropriators, by the express purview of nature go tien. VIII. c. 7. which cociting hat: Ínce been extended by analogy to the in the han, of the clergy: nor will r i m fuci. cafes, where the entry of him that hath night is taken away by defcem, difcontinuance, twenty year dipofefiion, or otherwife.

In action of ejectment a Lowever rendered a very ealy ale spedition. renty to landiorus whoit tenant are in arrere, by ftatute & Gec. II. c. 28. which enacts, that every Landlord, vic hati. by his leaft a gin of re-entry in cafe of LOL-payment of sent, when half a year's rent is que, and no fufficier distress i. to be had, may ferve a declaration in ejeciHeir of his tenant, or fix the fame upon fome notorious part of the premifes, winch fall be vald, without any formal re-entry or previous demand of rent. And a recovery ir fuch ejectment fall be final and conciufive, both in law and equity, uniefs the rent and all cofts be paid or tendered wito Lx clendar months afterwards.

* Cru. Car. 301. 2 Low Raym. Se.

2. THE writ of quare ejecit infra terminum lieth, by the antient law, where the wrongdoer or ejector is not himself in poffeffion of the lands, but another who claims under him. As where a man leafeth lands to another for years, and, after the leffor or reverfioner entereth, and maketh a feoffment in fee, or for life, of the fame lands to a ftranger: now the leffee cannot bring a writ of ejectione firmae orejectment against the feoffec; because he did not eject him, but the reverfioner: neither can he have any fuch action to recover his term against the reverfioner, who did ouft him; because he is not now in poffeffion. And upon that account this writ was devised, upon the equity of the ftatute Westm. 2. c. 24. as in a cafe where no adequate remedy was already provided. And the action is brought against the feoffee for deforcing, or keeping out, the original leffee during the continuance of his term; and herein, as in the ejectment, the plaintiff fhall recover fo much of the term as remains; and alfo fhall have actual damages for that portion of it whereof he has been unjustly deprived. But fince the introduction of fictitious oufters, whereby the title may be tried against any tenant in possesfion, (by what means foever he acquired it) and the fubfequent recovery of damages by action of trefpafs for mesne profits, this action is fallen into difufe

b F. N. B. 198.

02

CHAPTER THE TWELFTH.

OF TRESPASS.

I

N the two preceding chapters we have confidered fuch injuries to real property, as confifted in an oufter, or amotion of the poffeffion. Those which remain to be difcuffed are fuch as may be offered to a man's real property without any amotion from it.

THE fecond fpecies therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trefpafs. Trefpafs, in it's largest, and most extensive sense, fignifies any tranfgreffion or offence against the law of nature, of fociety, 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 feen) an action of trefpass vi et armis in affault and battery will lie; taking or detaining a man's goods are respectively trefpaffes; for which an action of trefpafs vi et armis, or on the case in trover and converfion, is given by the law: so also nonperformance of promises or undertakings is a trespass, upon which an action of trefpafs on the cafe in affumpfit is grounded: and, in general, any misfeafance, or act of one man whereby another is injuriously treated or damnified, is a tranfgreflion, or trefpafs in it's largest fenfe; for which we have already feen that, whenever the act itself is directly and immediately injurious to the perfon or property of another,

a

and therefore neceffarily accompanied with fome force, an action of trespass vi et armis will lie; but, if the injury is only confequential, a special action of trespass on the cafe may be brought.'

BUT in the limited and confined sense, in which we are at present to confider it, it fignifies no more than an entry on another man's ground without a lawful authority, and doing fome damage, however inconfiderable, to his real property. For the right of meum and tuum, or property, in lands being once established, it follows as a neceffary confequence, that this right must be exclufive; that is, that the owner may retain to himself the fole ufe and occupation of his foil: every entry therefore thereon without the owner's leave, and especially if contrary to his exprefs order, is a trefpafs or tranfgreffion. The Roman laws feem to have made a direct prohibition neceffary, in order to constitute this injury: "qui ali"enum fundum ingreditur, poteft a domino, fi is praeviderit, "prohiberi ne ingrediatur." But the law of England, justly confidering 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 fome very particular cases) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that fatisfaction, by confidering how far the offence was wilful or inadvertent, and by eftimating the va lue of the actual damage fuftained,

EVERY unwarrantable entry on another's foil the law entitles a trefpafs by breaking his clefe; the words of the writ of trespass commanding the defendant to fhew caufe, quare claufum querentis fregit. For every man's land is in the eye of the law inclofed and fet apart from his neighbours: 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,

exifting only in the contemplation of law, as when one man's land adjoins to another's in the fame field. And every such entry or breach of a man's clofe carries neceffarily along with it fome damage or other: for, if no other fpecial lofs can be affigned, yet ftill the words of the writ itself specify one general damage, viz. the treading down and bruifing his herbage.

ONE must have a property (either abfolute or temporary) in the foil, and actual poffeffion by entry, to be able to maintain an action of trespass: or at least, it is requifite that the party have a leafe and poffeffion of the vesture and herbage of the land. 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 clofes : for they have an exclufive intereft and freehold therein for the time. But before entry and actual poffeffion, one cannot maintain an action of trefpafs, though he hath the freehold in law f. And therefore an heir before entry cannot have this action against an abator: though a diffeifee might have it against the diffeifor, for the injury done by the diffeifin itself, at which time the plaintiff was feised of the land: but he cannot have it for any act done after the diffeifin, until he hath gained poffeffion 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 poftliminii, fuppofes the freehold to have all along continued in him. Neither, by the common law, in cafe of an intrufion or deforcement, could the party kept out of poffeffion fue the wrongdoer by a mode of redress, which was calculated merely for injuries committed against the land while in the poffeffion of the owner. But now by the statute 6 Ann. c. 18. if a guardian or trustee for any infant, a hufband feifed jure uxoris, or a perfon having any estate or interest determinable upon a life or lives, fhall, after the deter

c F. N. B. 87, 88.

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

Cro. Eliz. 421.

f

2 Roll. Abr. 553.

8 11 Rep. 5.

mination