SUCH is the modern way of obliquely bringing in question the title to lands and tenement, 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 antient writs of assise, being calculated to try the mere possessory title to an estate; and hath succeeded to those real actions, [206] 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, so as to prevent fraud and chicane, and eviscerate the very truth of the title. The writ of ejectment and it's nominal parties (as was resolved by all the judges ") 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 controul and 66 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 intangled in the nicety of pleadings on either "side."

66

BUT a writ of ejectment is not an adequate mean 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 2: except for tithes in the hands of lay impropriators, by the express purview of statute 32 Hen. VIII. c.7. which doctrine hath

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

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

The judgment is conclusive only as to such facts as were necessarily proved or admitted in order to obtain it: it does not, therefore, as stated in the text, conclude the defendant for all profits which have accrued since the date of the demise, because the defendant is only liable to account for the profits from the time at which he came into possession, and this may have been long subsequent to the date of the demise, it being only necessary to the judgment, that he should have been in possession when the declaration was served on him. The plaintiff, therefore, must prove the defendant's possession for any period prior to the service of the declaration, for which he seeks to make him accountable; and he must prove the value of the profits entirely; as to that the judgment raises no inference. The defendant also may plead the statute of limitations, and protect himself from any demand farther back than the last six years.

since been extended by analogy to tithes in the hands of the clergy: nor will it lie in such cases, where the entry of him that hath 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 arrere, 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 nonpayment 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 ejectment 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. (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 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 firmae or ejectment against the foeffee; 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

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

(6) A third benefit is given by this statute, which, according to the case of Roe v. Davis, 7 East, 363., is available to the landlord even when a sufficient distress is to be had. Before its enactment, the court exercised a discretionary power of staying the landlord's proceedings at any stage of them, upon payment of the rent in arrear with costs. By the fourth section, this discretion is taken away; the court cannot do it after trial, and must do it if the application is properly made before.

By the second section, the right of any mortgagee of the term not in possession is preserved upon payment of the rent, and all costs and damages to the landlord within six months after execution levied.

the equity of the statute Westm. 2. c. 24. as in a case where no adequate remedy was already provided b. (7) 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.

b F.N. B. 198.

(7) The lessee was not in many cases necessarily driven to his quare ejecit, &c. because if he re-entered, as he might, on the feoffee, and was again ousted by him, he was then in a condition to maintain ejectione firmæ against him. F. N. B. 198.

CHAPTER THE TWELFTH.

OF TRESPASS.

IN the two preceding chapters we have considered such injuries to 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 it's 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. 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: 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 it's largest sense; for which we have already seen that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore ne- [209] cessarily accompanied with some force, an action of trespass vi

et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

• See pag. 123.

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. For the right of meum and tuum, 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. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury: “qui ali"enum fundum ingreditur, potest a domino si is praeviderit "prohiberi ne ingrediatur." But the law of England, justly considering 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 some very particular cases,) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained.

EVERY unwarrantable entry on another's soil the law entitles a trespass by breaking his close: the words of the writ of trespass commanding the defendant to shew cause quare clausum querentis fregit. For every man's land is in the eye of the law inclosed and set apart from his neighbour's: 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, existing [210] only in the contemplation of law, as when one man's land adjoins to another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.

ONE must have a property (either absolute or temporary)