when the procedure of the superior courts of common law was reconstructed a few years ago, advantage was taken of the opportunity; a new action for the recovery of land was created; and the old action of ejectment is now, therefore, to be numbered among the relics of the past.

The old form of suit was valuable in one respect, in that it allowed no question to be raised except that of title. The new procedure possesses this advantage: it is an action exclusively for recovering the possession of real property, without regard to any other question which may exist between the parties. It is now commenced by a writ, which is directed to the tenants in possession, describes the property, states the persons in whom the right of possession is alleged to be, and commands those to whom it is directed to appear in court, and defend their possession, or otherwise they may be turned out. When served on the tenant in possession, this writ has thus the same effect as the notice formerly given by the casual ejector; and it is the duty of the tenant, if he has no interest on the premises to defend, to give immediate notice of the writ to his landlord. Indeed, to prevent fraudulent recoveries of the possession, by collusion with the tenant, all tenants are obliged, on pain of forfeiting three years' rent, to give notice to their landlords, when served with an ejectment: and any landlord may by leave of the court be made a co-defendant to the action, in case the tenant himself appears to it; or, if he makes default, yet execution will be stayed, in case the landlord applies to be made a defendant. And on the same principle, not only may the landlord be admitted to defend, but any other person, such as a mortgagee, a devisee in trust, or an heir, will be allowed to do so, on showing that he is in possession of the premises, by himself or his tenants.

If no appearance be entered within the time allowed, the plaintiff obtains judgment by default, upon which the sheriff will deliver to him the possession of the property. For it is by the entry of an appearance only that the tenant, or the landlord, or other person admitted to defend, denies that alleged right-the parties on appearance being thus at issue on the question of title. The claimant has then to prove his alleged right to a jury, the question for them to determine being simply whether the statement in the writ of the title of the claimant is true or false. If, at the trial, the claimant appears and the defendant fails to do so, the former recovers without even proof of his title, the defendant being considered to have, as it were, abandoned his defence. If, on the other hand, the defendant appears, but the claimant makes default, the defendant will have judgment for his costs of suit.

The damages recovered in the old actions of ejectment, though

originally their only intent, were, where the title came to be considered as the principal question, very small and inadequate; amounting commonly to one shilling, or some other trivial sum. The modern action is, as we have seen, not an action of trespass for an ouster, but exclusively to assert a claim to the possession of real property, and in it consequently no damages are recovered. In order therefore to complete the remedy, when the possession has been long detained from him that had the right to it, an action lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. Which action must be brought in the name of the claimant in the ejectment, in whom the jury have found the right to be, against the tenant in possession. In this case the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued since the date alleged in the writ, as the period at which the plaintiff's right of possession accrued to him; but if the plaintiff sues for any antecedent profits, the defendant may make a new defence. Thus he may plead the statute of limitations, and by that means protect himself from the payment of all mesne profits, except those which have accrued within the previous six years.

Such is the modern way of trying the title to lands and tenements. It is founded on the same principle as the ancient writs of assize, being calculated to try the mere possessory title to an estate; and has succeeded to those real actions, as being infinitely more convenient for attaining the ends of justice.

But a writ of ejectment is not an adequate means to try the title of all estates. Coming in place of the former action, in which damages were sought to be recovered for a supposed ouster, it lies only for the recovery of that species of real property, on which an entry can be made, and an ouster effected. 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. Nor would it lie formerly in such cases, where the entry of him that had right was taken away by a twenty years' dispossession, or otherwise. But twenty years' dispossession may now be set up by the defendant as an answer to the claimant, and a good title against all the world. This period of limitation is, however, made subject to qualification in the case of persons under disability; for if at the time at which the right of any person first accrued, such person was under the disability of infancy, coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, he, or the person claiming through him, may, though twenty years have expired, bring an action, within ten years next after the person to whom the right

accrued shall have ceased to be under such disability, or have died, whichever event shall first happen. But no action can be brought in such case of disability, but within forty years next after the right has accrued, although the person to whom it accrued may have remained under disability during the whole of the forty years, or although the term of ten years above mentioned shall not have expired.

The action of ejectment has, I may add, been rendered an easy and expeditious remedy to landlords whose tenants are in arrear, or who hold over after their term has expired or been determined. For every landlord who has 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 writ of 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.

And a landlord, on serving a writ of ejectment on a tenant holding over after his term has expired or been determined, may give him notice that he will be required to give bail, if ordered so to do by the court or a judge, conditioned to pay the costs and damages to be recovered in the action. If bail is thereafter ordered to be given, and the tenant fails to do so, the claimant obtains immediate judg ment for recovery of possession and for his costs.

Ejectments, again, between landlord and tenant, partake somewhat of the nature of what have been already described as mixed actions; for in them the claimant may go on, after proving his right to recover, to give evidence of the mesne profits, and the jury shall thereupon give their verdict, both as to the title and mesne profits; so that in such cases a second action for mesne profits is unnecessary. Besides these remedies a landlord may, in cases where the rent or value of the premises does not exceed 50l., and no fine has been paid, proceed summarily in the county court. If the rent does not exceed 20%., and no fine has been paid, he may proceed before the justices in petty sessions.

CHAPTER VIII.

OF INJURIES TO REAL PROPERTY.

Trespass: when justifiable-trespass ab initio-costs in actions of trespass→→→ injunction in chancery. Nuisance: to corporeal hereditaments-to incorporeal hereditaments-remedy at law and in equity. Waste: who may commit-how punished or prevented. Subtraction: as of fealty, duties, rent, &c.—remedy by distress-where premises deserted. Disturbance: of franchise-of commons-enclosure-of ways-of tenure-of patronage→→→ action of quare impedit.

In the preceding chapter we have considered the chief injury to real property, 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.

II. The second species therefore of 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 an action of assault and battery will lie: taking or detaining a man's goods are respectively trespasses; for which the actions of trover and detinue are given by the law: so also non-performance of promises or undertakings is technically a trespass, upon which the action of assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated and damnified, is a transgression or trespass in its largest sense.

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, which the law entitles a trespass by breaking his close. 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 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 one general damage may in

any case be specified, viz., the treading down and bruising his herbage.

One must have a property, either absolute or temporary, in the soil, and actual possession, to be able to maintain an action of trespass; or, at least, it is requisite that the party have possession of the vesture and herbage, or other produce 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 therein for the time. And 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 much more if he permits, or drives them on, 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 in foro contentioso, by action.

In some cases trespass is justifiable; or rather entry on another's land or house shall not in those cases be accounted trespass: as if a man comes thither 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 of such inn or public-house, he thereby gives a general licence to any person to enter his doors. So a commoner may justify entering to attend his cattle, commoning on another's land; and a reversioner, to see if any waste be committed on the estate, from the apparent necessity of the thing.

But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law intrusts him, he shall be accounted a trespasser ab initio; as if one comes 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. So if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle cuts down a tree; in these and similar cases the law judges that he entered for tnis unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio.

A man may also justify in an action of trespass, on account of the