[206]

confidered as the principal question) very small and inadequate; amounting commonly to one fhilling, or some other trivial fum. In order therefore to complete the remedy, when the poffeffion has been long detained from him that had the right to it, an action of trefpafs alfo lies, after a recovery in ejectment, to recover the mesne profits which the tenant in poffeffion has wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his leffor, against the tenant in poffeffion: whether he be made party to the ejectment, or fuffers judgment to go by default *. In this cafe the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued fince the date of the demife stated in the former declaration of the plaintiff; but if the plaintiff fues for any antecedent profits, the defendant may make a new defence (5),

SUCH is the modern way of obliquely bringing in queftion 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 cafe. It is founded on the fame principle as the antient writs of affize, being calculated to try the mere poffeffery title to an eftate; and hath fucceeded to thofe 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, fo as to prevent fraud and chicane, and evifcerate the very truth of the title. The writ of ejectment and it's nominal parties (as was refolved by all the judges) are "judicially to be confidered as the fictitious "form of an action, really brought by the leffor of the plaintiff against the tenant in poffeffion: invented, under the "control and power of the court, for the advancement of Mich. 32 Geo. II. 4 Burr. 668.

* Burr. 668,

(5) The defendant may plead the ftatute of limitations, and by that means protect himself from the payment of all mefne profits, except those which have accrued within the laft fix years. Bull. N. P. 88.

"juftice

"justice in many refpects; and to force the parties to go to "trial on the merits, without being intangled in the nicety "of pleadings on either fide."

BUT a writ of ejectment is not an adequate means to try the title of all eftates; for on those things, whereon an entry cannot in fact be made, no entry fhall be fuppofed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament: except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII. c. 7. which doctrine hath fince been extended by analogy to tithes in the hands of the clergy: nor will it lie in fuch cafes, where the entry of him that hath right is taken away by descent, difcontinuance, twenty years difpoffeffion, or otherwife.

THIS action of ejectment is however rendered a very eafy and expeditious remedy to landlords whofe tenants are in ar rear, 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 fufficient 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 fhall be valid without any formal re-entry or previous demand of rent. And a recovery in fuch ejectment shall be final and conclufive, both in law and equity, unless the rent and all cofts be paid or tendered within fix calendar months afterwards (6).

2. THE writ of quare ejecit infra terminum lieth, by the an- [207] tient 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,

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

after

Cro. Car. 301. 2 Lord Raym.789.

(6) Where there is a fufficient diftrefs upon the premises, the landlord cannot maintain an ejectment upon his right of re-entry for non-payment of rent, if he has not demanded the rent on the very day on which it was due.

the

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 or ejectment against the feoffee; 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 statute 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 da. mages for that portion of it whereof he has been unjustly deprived. But fince the introduction of fictitious ousters, whereby the title may be tried against any tenant in poffeffion, (by what means foever he acquired it,) and the subsequent recovery of damages by action of trefpafs for mefne profits, this action is fallen into disuse.

F. N. B. 198.

IN

CHAPTER THE TWELFTH.

OF TRESPASS.

N the two preceding chapters we have confidered fuch injuries to real property, as confifted in an oufter, or amotion of the poffellion. Thofe 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 its 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 perfon, or his property. Therefore beating another is a trefpafs; for which (as we have formerly seen) an action of trespass vi et armis in affault and battery will lie; taking or detaining a man's goods are respectively trespasses; for which an action of trefpafs vi et armis, or on the cafe in trover and converfion, is given by the law: fo also nonperformance of promifes or undertakings in 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 tranfgreffion or trefpafs in its largeft fenfe; for which we have already feen that, whenever the act itself is directly, and immediately injurious to the perfon or property of another, and therefore neceffarily accompanied with fome force, an [209] action of trespass vi et armis will lie; but, if the injury is only confequential, a special a&tion of trefpafs on the cofe may · be brought (1).

a See pag. 123.

(1) The distinctions beween actions of trespass vi et ormis for an immediate injury, and actions of trefpafs epen the cafe for a

confc

BOOK III. 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 consequence, 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 efpecially if contrary to his exprefs order, is a trefpafs or tranfgreffion. The Roman laws seem to have made a direct prohibition neceffary, in order to conftitute this injury: " qui ali68 enum fundum ingreditur, poteft a domino, fi is praeviderit, "prohiberi ne ingrediatur b." But the law of England, justly Inft. 2. 1. 12.

confequential damage, are frequently very delicate; fee the subject much confidered in 2 Bl. Rep. 892, in a cafe where an action of trefpafs vi et armis was brought against the defendant for throwing a lighted fquib in a public market, which fell upon a ftall, the owner of which, to defend himself and his goods, took it up, and threw it to another part of the market, where it ftruck the plaintiff and put out his eye.

The question was much difcuffed, whether the perfon injured ought to have brought an action of trefpafs vi et armis, or an action upon the cafe; and one of the four judges ftrenuously con tended that it ought to have been an action upon the cafe. But I should humbly conceive, that the question was more properly this, viz, whether an action of trefpafs vi et armis lay against the ori. ginal or the intermediate thrower, or whether the act of the fecond thrower was involuntary, (which feems to have been the opinion of the jury,) or wilful and mifchievous, and if fo, whether he alone ought not to have been anfwerable for the confequences. For if A throws a ftone at B, which after it lies quietly at his foot, B takes up and throws again at C, it is prefumed 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 confequence of which it ftrikes C, in that cafe, it is wholly the act of A, and B must be confidered merely as an inanimate object, which may chance to divert its course.

5

confidering