session; whether he be made party to the ejectment, or suffer judgment to go by default. In this case the judgment in ejectment is conclusive evidence against the defendant for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff but if the plaintiff sue for any antecedent profits, the defendant may make a new defence; and he may also plead the Statute of Limitations, and by that means protect himself from the payment of all mesne profits, except those which have accrued during the last six years.

But a writ of ejectment is not an adequate means 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 hereditaments; except for tithes in the hands of lay appropriators, by the express purview of the 32 Hen. VIII. c. 7. which doctrine hath 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 arrear; for by the 4 Geo. II. c. 28. it is enacted, 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 on 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.

Ejectment must be brought for a thing that is certain; as of the manor of A, and so many messuages, cottages, acres of arable land, meadow, &c. with the appurtenances in the parish of, &c. For the nature of the land must be set forth, and be distinguished, how much of one sort, and how much of another. If a person bring ejectment of an acre of land in two parishes, and the whole is in one, he shall recover; so where an ejectment is of an acre of land in A, and part of it lies in B, he may recover for such part as lies in A. And if a man have title to a fourth part only, and he bring his action for the whole, he shall recover his fourth part of the lands.

In ejectment for nonpayment of rent, proceedings have been ordered to be stayed on payment of the rent and costs, and a new lease to be made at the defendant's charge. In cases between landlord and tenant, when half a year's rent is due from any tenant, the landlord may, without formal demand or re-entry, serve a declaration in ejectment against the tenant, or affix it on the door of the demised premises, &c.; and, proving the rent due,

and no sufficient distress, shall have judgment to recover the lands; but, upon the tenant's paying his rent in arrears with the costs, the proceedings in ejectment to cease and the tenant may file a bill in equity to be relieved in six months, &c. and thereon shall hold the premises according to the lease, without a new

one.

CHAPTER XIV.

of Trespass.

TRESPASS, in its 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 relate to a man's' person or his 'property. Therefore, beating another is a trespass; for which 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 its largest sense, for which an action of trespass vi et armis will lie; but if the injury be only consequential, a special action of trespass on the case may be brought.

The distinctions between actions of trespass vi et armis for an immediate injury, and actions of trespass on the case for a consequential damage, are frequently very delicate.

1

In a case where an action of trespass vi et armis was brought against the defendant for throwing a lighted squib in a public market, which fell upon a stall, the owner of which, to defend himself and his goods, took it up, and threw it to another part of the market, where it struck the plaintiff, and put out his eye; the question was much discussed, whether the person injured ought to have brought an action of trespass vi et armis, or an action upon the case; and one of the four judges strenuously contended that it ought to have been an action upon the case. But the question was more properly this, viz. Whether an action of trespass vi et armis lay against the original or the intermediate thrower; or whether the act of the second thrower was involuntary (which seems to have been the opinion of the jury), or wilful and mischievous; and if so, whether he alone ought to have been answerable for the consequences?

In the case of Leame v. Bray, it was decided, that if one man drive a carriage, being on the wrong side of the road, against another carriage, though unintentionally, the action ought to be trespass vi et armis; and the court declared generally, that if the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis, by all the cases both ancient and modern.

Every unwarrantable entry on another man's land, by breaking his close, is a trespass. 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 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.

One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of trespass; or, at least, it is requisite that the party have a lease and possession 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 closes; for they have an exclusive interest and freehold therein for the time.

But, before entry and actual possession, one cannot maintain an action of trespass, though he have the freehold in law. And therefore an heir before entry cannot have this action against an abator; though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land; but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done.

By the 6 Ann. c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers; and any reversioner or remainder-man, expectant on any life-estate, may once in every year, by motion to the Court of Chancery, procure the cestuy qui vie to be produced by the tenant of the land, or may enter thereon in case of his refusal or wilful neglect.

And by the 4 Geo. II. c. 28. and 11 Geo. II. c. 19. in case, after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annua! value of the premises, in case he himself hath de

manded and given notice in writing to the tenant, to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and he afterwards neglect to carry that notice into execution.

A man is answerable for not only his own trespass, but that of his cattle also; for if, by his negligent keeping, they stray upon the land of another, and they there tread down his neighbour's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages. And the law gives the party injured a double remedy in this case; by permitting him to distrain the cattle thus damage feasant or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy by action.

In some cases trespass is justifiable: as if a man come on another's land or house to demand or pay money, there payable; or to execute, in a legal manner, the process of the law.

Also a man may justify entering into an inn or public house, without the leave of the owner first specially asked; because when a man professes the keeping such inn or public house, he thereby gives a general licence to any person to enter his doors. A landlord may justify entering to distrain for rent; a commoner, to attend his cattle commoning on another's land; and a reversioner, to see if any waste be committed on the estate.

Also it hath been said, that by the common law and custom of England, the poor are allowed to enter and glean upon another's, ground after the harvest, without being guilty of trespass. But two actions of trespass have been brought in the Common Pleas against gleaners, with an intent to try the general question, whether such a right existed: in the first, the defendant pleaded that he, being a poor, necessitous, and indigent person, entered the plaintiff's close to glean; in the second, the defendant's plea was as before, with the addition that he was an inhabitant legally settled within the parish: to the plea in each case there was a general demurrer, Mr. J. Gould delivered a learned judgment in favour of gleaning; but the other three judges were clearly of opinion, that this claim had no foundation in law; that the only authority to support it was an extra-judicial dictum of Lord Hale; that it was a practice incompatible with the exclusive enjoyment of property, and was productive of vagrancy, and many mischievous. consequences.

In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land: and it has been determined, that it is lawful to follow a fox with horses and hounds over another's grounds, provided no more damage is done than is necessary for the destruction of the animal.

But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trespasser ab initio: as if one come into a tavern,

and will not go out in a reasonable time, but tarries there all night, contrary to the inclinations of the owner; this wrongful act shall affect and have relation back even to his first entry, and make the whole a trespass.

But a mere nonfeasance, as not paying for the wine he calls for, will not make him a trespasser; for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against him.

So if a landlord distrained for rent, and wilfully killed the distress, this by the common law made him a trespasser ab initio: and so indeed would any other irregularity have done, till the 11 Geo. II. c. 19. which enacts, that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have a special action of trespass, or on the case, for the real specific injury sustained, unless tender of amends hath been made. But still if a reversioner, who enters on pretence of seeing waste, break the house, or stay there all night; or if the commoner, who comes to tend his cattle, cut down a tree; in these and similar cases, the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be deemed a trespasser ab initio.

So also, in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of the earth; for though the law warrants the hunting of such noxious animals for the public good, yet it is held that such things must be done in an ordinary and usual manner; therefore, as there is an ordinary course to kill them, viz. by hunting, the court held that the digging for them was unlawful.

In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is enacted by the 43 Eliz. c. 6. and 22 & 23 Car. II. c. 9. § 136. that where the jury who try an action of trespass give less damages than forty shillings, the plaintiff shall be allowed no more costs than damages; unless the judge shall certify under his hand, that the freehold or title of the land came chiefly in question. But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by the 8 & 9 W. III. c. 11. which enacts, that in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs. The other exception is by the 4 & 5 W. & M. c. 23. which gives full costs against any inferior tradesman, apprentice, or other dissolute person, who is convicted of a trespass in hawking, hunting, fishing, or fowling, upon another's land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate; but if he is guilty of such trespass, he shall be liable to pay full costs. The persons described in the 4 & 5 W. & M. c. 23. are subject to pay full costs, though the