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[Book III This Action of Ejectment Is, However, Rendered a Very Easy and Expeditious Remedy to Landlords Whose Tenants Are in Arrear, by Statute 4 Geo

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[Book III This Action of Ejectment Is, However, Rendered a Very Easy and Expeditious Remedy to Landlords Whose Tenants Are in Arrear, by Statute 4 Geo 206 TRESPASS TO REAL PROPERTY. [Book III This action of ejectment is, however, rendered a very easy and expeditious remedy to landlords whose tenants are in arrear, by statute 4 Geo. II, c. 28, which enacts; that every landlord, who bath 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 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, with- out 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. 2. The writ of quare ejecit infra terminum lieth, by the ancient law, where [*207] 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 an- other for years, and, after, the lessor or reversioner entereth, and maketh a feoffment in fee, or fdr life, of the same lands to a stranger: now the lessee can- not bring a writ of ejectione firmce or ejectment against the feoffee: 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 the equity of the statute Westm. 2, c. 24, as in a case where no adequate remedy was already provided. (b) And the action is brought against the feoffee for defore- ing, 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 le acquired it), and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse. (9) CHAPTER XIL OF TRESPASS. IN the two preceding chapters we have considered such injuries to real prop- erty, 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 with- out 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 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 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 tres- passes; 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 under- takings 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 we have already seen (a) that whenever the act itself is directly and immediately injurious to the person or property of another, (b) F. N. B. 198. (a) See page 1M8. (9) It was abolished by statute 3 and 4 Win. IV, c. 27, s. 36. Chap. 12o.] TRESPASS TO REAL PROPERTY. *and therefore necessarily accompanied with some force, an action of [*209] trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought. (1) 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 con- trary 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 alienumfundum ingreditur,potest a domino, si is prceviderit,prohiberi ne ingrediatur."(b) But the law of England, justly considering that much incon- venience 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 land (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 defend- ant to show cause quare clausum querentis fregit. For every man's land is, in the eye of the law, enclosed 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 contem- [*210] plation 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 tread- ing down and bruising his herbage.(c)(2) (b) Ist. 2, 1, 12. (e) F. N. B. 87, 88. (1) [See these distinctions fully considered, 1 Chitty on P1. 115 to 122, and 149 to 172. The distinctions between actions of trespass vi et armis for an immediate injury, and actions of trespass upon the case for a consequential damage, are frequently very subtle: see the sub- ject much considered in 2 Bi. Rep. 892. In a case where an action of trespass viet 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 I should conceive, that the question was more properly this, viz.: whether an action of trespass vi et armis lay against the origi- nal 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 the first thrower alone ought not to have been answerable for the consequences. For if A throws a stone at B, which, after it lies quietly at his foot, B takes up and throws again at C, it is presumed 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 consequence of which it strikes C, in that case, it is wholly the act of A, and B must be considered merely as an inanimate object, which may chance to divert its course. In the case of Leame v. Bray, 8 East, 598, it was decided, that if one man drives 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 declare 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 sub- ject of an action of trespass vi et avmis by all the cases both ancient and modern.] (2) [In an action of trespass for entering the grounds of another person, and sporting over them, the jury may take into consideration, in determining their verdict, not only the actual damage sustained by the plaintiff, but 'ircumstances of aggravation and insult on the part of the defendant. Merest v. Harvey, 1 Marsh. 139 ; 5 Taunt. 442.] 210 TRESPASS TO REAL PROPERTY. [Book III. 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.(d)(3) 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 :(e) for they have an exclusive interest and freehold therein for the time.
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