of the bruises and wounds then and there given, for a long time, and the plaintiff was then and there obliged to lay out and expend, and did lay out and expend a large sum of money, viz. $-, in endeavoring to cure the said gelding, during that time, and the said gelding afterwards, on &c., at &c., by means of the said wounds and bruises, died, &c. &c. or, more shortly thus,—

For that the said D, on &c., at &c., with force and arms, beat, bruised, wounded and killed a certain gelding of the plaintiff, then and there found and being, of the value of $-, and other wrongs, &c., &c.

For knocking out the eye of a horse.

For that the said D, on &c., at &c., with force and arms, viz. with a certain stick or bludgeon, which the said D, then and there held in his hand, beat, bruised, wounded and ill treated a certain mare of the plaintiff, then and there found and being, of great value, viz. of the value of $—, and did then and there, violently knock and strike out one of the eyes of the said mare; by reason whereof the value of the said mare is greatly diminished; and other wrongs, &c.

For chasing sheep with dogs, &c.

For that the said D, on &c., at &c., with force and arms, drove, and with dogs, chased certain sheep and lambs of the plaintiff, viz. ten sheep and six lambs, then and there found and being, of great value, viz. of the value of $—, and then and there set on and encouraged the said dogs to bite, worry and pursue the said sheep and lambs, whereby divers, viz. three of the said sheep and five of the said lambs, died, and the residue of the said sheep and lambs, viz. seven sheep and one lamb, were greatly hurt and damaged; &c. &c.

NOTE. Under the Rev. Stat. of Mass. ch. 58, sec. 13, trespass lies against the owner or keeper of a dog, for mischief done by him.

If in the declaration, the defendant is described as owner and keeper, it must be proved that he is both owner and keeper. But the fault may be amended according to the fact. Buddington v. Shearer, 20 Pick. 477. Where mischief is done by two dogs together, belonging to several owners, each is answerable for the mischief done by his own dog only, in a several action of trespass. Ibid. See also, 2 Conn. R. 206.

For chasing a mare whereby she dropped a dead foal.

For that the said D, on &c., at &c., with force and arms,

drove and chased a certain mare of the plaintiff, then and there found and being, of great value, viz. of the value of $-, whereby the said mare, then and there slipped and dropped a dead foal, and whereby the said mare was then and there hurt and greatly damnified, and the plaintiff was deprived of the use of the said mare, for a long space of time, viz. six weeks, &c. &c.

For seizing and detaining plaintiff's barge.

For that the said D, on &c., at &c., with force and arms, seized and took a certain barge of the plaintiff, of great value, viz. of the value of $-, and then and there carried away the said barge, and kept and detained the same from the plaintiff for a long space of time, viz. from thence hitherto, and converted the same to his own use; whereby the plaintiff has been deprived of all the profit and advantage which would have accrued to him from the use of the said barge during that time; and particularly (state the special damage, if any,) &c., and other wrongs, &c.

For running a carriage against the plaintiff's, whereby he was thrown out, with special damage, &c.

For that the said D, on &c., at &c., with force and arms, drove a certain carriage, to wit, a curricle, which the said D was then and there driving along the highway, with great force and violence, against a certain other carriage, viz. a chaise of the plaintiff of great value, to wit, of the value of $—, and in which said chaise, the plaintiff was then riding in the said highway, and thereby then and there greatly broke and damaged the said chaise; by means whereof the plaintiff was then and there thrown, with great violence, out of his said chaise, upon the ground; and was afterwards, viz. on &c., at &c., obliged to expend, and did expend, a large sum of money, viz. $-, in the repairing of the said chaise; and also by means of the premises, the plaintiff was then and there greatly bruised, hurt, and wounded, and sick and disordered, and so continued for a long space of time, viz. weeks, then next following, and during all that time was prevented from transacting his lawful business, by him during the said time to be transacted; and was also thereby obliged to expend, and did expend a large sum of money, viz. $-, in the cure of his said wounds, lameness, and disorders aforesaid, occasioned as aforesaid, viz. at &c., and other wrongs, &c. &c.

NOTE. In what cases to bring Trespass, and in what to bring Case, it is not always easy to decide. See ante, Case.

For setting plaintiff's barge adrift; special damage.

For that the said T, on &c., at &c., with force and arms, seized and took the boat of the plaintiff, of great value, viz. of the value of $-, then moored and fastened with a certain rope of the plaintiff, at &c., in the river &c., and then unmoored and set loose the said boat from the place to which she was so moored and fastened as aforesaid, and thereby set the said boat adrift in the said river; whereby the said boat was broken to pieces, damaged, and spoiled, and the plaintiff lost the whole use of his said boat for a long space of time, viz. &c. &c.

For impounding the cattle of plaintiff until he paid a sum of money.

For that the said E, together with one G G, of &c., on &c., at &c., with force and arms, the cattle, to wit, four oxen and four cows, of the said P P, there lately found, took, and impounded, and them there so impounded, detained, until the said P P, for obtaining the delivery of them therefrom, paid to the said E and G a fine of $12; and other enormities, the said E then and there did, to the grievous injury of the said P, and against the peace, &c. 2 Vent. 91.

Trespass on a flock of geese.

For that the said D, on &c., at &c., with force and arms, chased and worried the plaintiff's flock of geese, being in all &c., threw clubs and stones at them, and thereby killed

of them, of the value of $-, and wounded and hurt the rest, to the value of $-, against the peace, &c.

For rescue of a horse.

For that the said plaintiff, on &c., at &c., had taken a certain mare, doing damage, then in the lands of the plaintiff, and had imponuded the said mare according to law. And the said A, on &c., at &c., with force and arms, viz. with swords and staves, broke said pound, and took and led away said mare from and out of said pound; and other wrongs, &c.

Part-owner and master, for detaining a ship and cargo.

For that on &c. at &c., the said A, with force and arms, did arrest a certain ship in the custody of the plaintiff, with

which, and divers goods and merchandises, viz. &c. of him the plaintiff, and several other merchants, his partners, in the said ship to be transported, the plaintiff was about to go to parts beyond sea, viz. to &c., and to make profits thereof to him, the plaintiff, for his part, viz. one fourth part thereof, and to take of every of the said other merchants a certain salary, viz. one twentieth part of the produce thereof, to merchandise their parts of the said goods and merchandise; and said ship, so under arrest, there did detain, against the law of the land, for a long time, viz. from &c., to &c.; whereby the plaintiff, the profit and advantage, which he must have had and received from the goods and merchandises aforesaid, by merchandising thereof as aforesaid, hath totally lost; and other outrages the said A did on the plaintiff commit, against the peace, &c.

See Boyd v. Brown, 17 Pick. 453, and White v. Damon, 8 Pick. 356.

For killing plaintiff's horse on training day by shooting with a gun.

For that on &c., at &c., the said A, with force and arms, a certain hand-gun, laden with gunpowder, discharged at and against the plaintiff's horse, being a gelding, of the value of $-, and thereby broke the right thigh-bone of said horse, and wounded him in said thigh; so that by means thereof, the said horse was rendered useless and good for nothing; and then and there the said A did other injuries to the plaintiff, against our peace, &c. TROWBRIDGE.

For taking plaintiff's boat.

For that the said A [defendant,] on &c., at &c., with force and arms, took and carried away the plaintiff's twomast boat, of the value of $50, and converted the same to his own use; and other enormities to the plaintiff, the said A then and there did, against the peace of this commonwealth, &c.

For stopping plaintiff's wagon in the highway.

For that the said T, at &c., on &c., with force and arms, stopped a certain wagon of the plaintiff, then and there by the plaintiff's cattle drawn in and along the highway, and seized and took from the cattle, then and there drawing the said wagon, the gears of the plaintiff, viz. one pair of iron gears, of the value of $-, and carried away, kept, and detained the same; and other injuries, wrongs and enormities

the said T then and there did to the plaintiff, against our peace, &c.

5. Declarations in other cases of mixed trespasses.

For mesne profits.

For that the said T, on &c., with force and arms, broke and entered three messuages &c., with the appurtenances in aforesaid, and expelled, put out, and removed the plaintiff from the possession and occupation of his said tenements, and kept and continued the plaintiff so expelled, put out, and removed from the possession and occupation of the same, for a long space of time; that is to say, from until the day of suing out the original writ of the plaintiff; and during all that time, had and received to his own use, all the rents, issues, and profits of the said tenements, being of the yearly value of $-, and other injuries, &c.

NOTE. In England, after a recovery in ejectment, the owner of the land may recover for the time he has been kept out of possession, in an action for the mesne profits. The reason of this is, that the tenant in possession, by entering into the common rule, is estopped in any subsequent action, from denying the lessor's possession, and an ouster by himself. This ouster affords a sufficient foundation for the lessor's action of Trespass, in which he recovers damages, in lieu of the mesne profits, which he has been prevented from receiving. It should be remarked, however, that where the profits claimed, are for a greater length of time than six years, the defendant may plead the statute of limitations. It should be observed, too, that the jury, in assessing damages in such action, are by no means obliged to confine themselves to the annual rents of the land, but may, in every such case, assess such damages, as they think will do justice between the parties. And a learned judge on the English Bench, (Mr. Justice Gould, 3 Wils. 118,) remarks, that he had known four times the value of the mesne profits given by a jury in this action. Whether it would be worth while to make a suggestion of this kind to the jury, in cases where the defendant sets up the statute of limitations against the plaintiff's claim, to prevent him from recovering more than what is not within the statute, may be worth consideration; in order that complete justice, either per directum or per obliquum, may be done between the parties. Since those who apply to an arbitrary regulation of the law, grounded merely in policy, to shelter them from a just claim, must, in that case, as well as where they apply to the law for the recovery of a legal demand, be content to take the law as they find it.

In Massachusetts, the action of ejectment has never been adopted in practice, and much of the English law in relation to this subject, has therefore no application here. In this commonwealth, if a man is disseized, he may recover for the trespass, committed in the first disseizin, without entry. But he recovers no mesne profits; but if he re-enters, and then brings his action of Trespass with a continuando, or if, after a re-entry, he is content to waive the Trespass and bring an action of Assumpsit, for use and occupation, he may recover the mesne profits, or an equivalent by some other name. But if, after he is disseized, he suffers