It may, however, be that they were temporarily on the premises as guests of the tenants, or for some purpose consistent with an exclusive right in the tenants. If so, the injury complained of only amounted to a trespass to their persons. The count does not show such a possession in the plaintiff, as authorizes him to maintain trespass quare clausum fregit. It ought clearly to show that he had the actual or constructive possession of the premises or some part thereof. If the lease reserved a part of the lots, or if the plaintiff was at the time of the trespass in the exclusive possession of some portion thereof, the count should so have stated. As respects such portion, the action might be sustained. There was no occasion for the plaintiff to refer to the lease; but having introduced it into the declaration, it was incumbent on him to show that it did not conclude him from maintaining the action.

There are some cases which hold that trespass quare clausum fregit may be maintained by the owner for an injury to the freehold, though the land be in the possession of his tenant at will. Starr v. Jackson, 11 Mass. 519; Hingham v. Sprague, 15 Pick. (Mass.) 102; Curtiss v. Hoyt, 19 Conn. 154, 48 Am. Dec. 149; Davis v. Nash, 32 Me. 411. And it is insisted that this action may be sustained on the authority of these cases. But there is a conclusive answer to this position. It does not appear that the parties in possession were the tenants at will of the plaintiff. The precise character of the tenancy is not stated in the declaration. It is alleged that Pendergast and Frinkler were the lessees of the premises, paying rent therefor at the rate of $1,000 per annum. The inference from this statement is, that the demise was for a definite period, as a month or a year, rather than at the mere will of the lessor. In order to sustain the case on the ground indicated, it should distinctly appear that Pendergast and Frinkler were tenants at will of the plaintiff. Intendments are not indulged to sustain a pleading. If subject to the charge of uncertainty or ambiguity, it is to be construed most strongly against the pleader. If an allegation is equivocal, and two meanings present themselves, the one will be adopted that is most unfavorable to the party pleading. 1 Chitty, Pl. 272; Stephen on Pl. 379. Judgment affirmed.18

17 Tobey v. Webster, 3 Johns. (N. Y.) 468 (1808) semble; Strong v. Adams, 30 Vt. 221, 73 Am. Dec. 305 (1858) semble. Accord. Bartlett v. Perkins, 13 Me. 87 (1836); Hersey v. Chapin, 162 Mass. 176, 38 N. E. 442 (1894). Contra. 18 Bedingfield v. Onslow, 3 Lev. 209 (1627) semble; Brooks v. Clifton, 22 Ark. 54, 60 (1860); Roussin v. Benton, 6 Mo. 592 (1840); Holmes v. Seeley, 19 Wend. (N. Y.) 507 (1838); Fitler v. Shotwell, 7 Watts & S. (Pa.) 14 (1844); Bacon v. Bullard, 20 R. I. 404, 39 Atl. 751 (1898). Accord.

Case will lie. Bedingfield v. Onslow, 3 Lev. 209 (1627); Randall v. Cleave land, 6 Conn. 328 (1827); Bucki v. Cone, 25 Fla. 1, 6 South. 160 (1889); City of Champaign v. McMurray, 76 Ill. 353 (1875) semble; Lienow v. Ritchie, 8 Pick. (Mass.) 235 (1829); Hall v. Snowhill, 14 N. J. Law, 8, 15 (1833); Kent v. Buck, 45 Vt. 18 (1872). For further citations, see 6 Cyc. 692.

WHIT.C.L.PL.-2

COOKE v. THORNTON.

(Court of Appeals of Virginia, 1827. 6 Rand. 8.)

CARR, J.10 Cooke leased to Thornton a tenement in Fredericksburg for seven years. He afterwards dispossessed him of the tenement, before the expiration of the term; there being about three years of the lease to run when this suit was brought. This is an action of trespass quare clausum fregit, brought by the tenant for this wrong. The declaration shews that there had been no re-entry; but, that the possession gained by the ouster, continued in the landlord.

Several points were made in the court below, but one only was relied on in the argument here, or seems worthy of notice. It is that growing out of the first bill of exceptions. The counsel for the defendant moved the court to instruct the jury, "that admitting the dispossession to be wrongful, they ought not to take into consideration, in their estimate of damages, the injury resulting from the plaintiff's being kept out of possession, from the date of the writ to the expiration," (of the term,) "but only from the time of the dispossession, until the suit was brought;" which instruction the court refused to give.

In this refusal, I think there was a clear error. To maintain this action, there must have been an actual possession when the trespass complained of was committed. Before entry and actual possession, a person having the freehold in law, cannot have a trespass. Thus, it will not lie before entry for a conusee of a fine, or a purchaser by lease and release, or an heir or devisee against an abator. A disseisee may have it against the disseisor for the disseisin itself, because he was then in possession: but not for an injury after the disseisin, until he hath gained possession by re-entry; and then he may support this action for the intermediate damage; for, after the entry, the law, by a kind of jus postliminii, (as Blackstone expresses it,) supposes the freehold to have all along continued in him. I might quote many passages from the books, in support of this.

Co. Litt. 257, a: "The disseisee shall have an action of trespass against the disseisor, and recover his damages for the first entry without any regress; but after regress, he may have an action of trespass with a continuando, and recover, as well for all the mesne occupation, as for the first entry."

Monckton v. Pashley, &c. 2 Ld. Raym. 977. Per Lord Holt: "As \to to the case of an entry with ouster, it may be set forth specially in the count, or not, with a continuando, or diversis diebus et vicibus, between such a day and such a day; but, then you must prove, that the

19 Concurring opinions of Judges Green and Cabell are omitted. The President and Judge Coalter were absent.

plaintiff re-entered before the action brought, or else you cannot assign the mesne trespass; for, by the ouster, the defendant has got possession, and he cannot be a trespasser to the plaintiff; but when the plaintiff re-enters, the possession is in him ab initio, and he shall have the mesne profits."

I have seen the rule no where more clearly laid down, than in the case of Case v. Shepherd, 2 Johns. Cas. (N. Y.) 27. Per Curiam: "In this case, the trespass is laid with a continuando, but the distinction, as to the amount of damages, is this: After an ouster, you can only recover for the simple trespass, or first entry, for, where there. is an ouster, every subsequent act is a continuance of the trespass. Yet, in order to entitle the plaintiff to recover for the subsequent acts, there must be a re-entry. But, after a re-entry, he may lay his action with a continuando, and recover mesne profits, as well as damages for the ouster."

In the case before us, there was an ouster, and no re-entry. The plaintiff, therefore, could recover for the simple trespass, or first entry only. He could not lay his action with a continuando. The defendant, therefore, might have asked for much broader instructions than he did. He only asked that the jury might be instructed not to give damages from the time of dispossession till the expiration of the lease, but to the date of the writ; and by refusing this instruction, the court virtually told the jury, that they might give damages for the whole term unexpired at the date of the ouster. This was unquestionably wrong.

I think the judgment should be reversed, and the cause sent back for a new trial; upon which, such instructions as result from the principles now laid down, should be given, if asked for. Judgment reversed.20

20 King v. Watson, 5 East, 485 (1804) semble; Clark v. Hill, 1 Har. (Del.) 335 (1832); Gent v. Lynch, 23 Md. 58, 87 Am. Dec. 558 (1865); Emerson v. Thompson, 2 Pick. (Mass.) 473, 484 (1824); Holmes v. Seely, 19 Wend. (N. Y.) 507 (1838); Alderman v. Way, 4 Yeates (Pa.) 218 (1805). Accord. Page v. Robinson, 10 Cush. (Mass.) 99 (1852); Harris v. Haynes, 34 Vt. 220 (1861) semble. Contra. For further citations, see 28 Am. & Eng. Ency. 573.

Case will lie. Topping v. Evans, S Ill. 209 (1871); Files v. Magoon, 41 Me. 104 (1856); Campbell v. Arnold, 1 Johns. (N. Y.) 511 (1806) semble. Accord. Miller v. Bomar, 9 Rich. Law (S. C.) 139 (1855). Contra.

If a disseisee re-enters he may maintain trespass for damage done between the disseisin and the re-entry. Holcomb v. Rawlyns, Cro. Eliz. 540 (1596) semble; Stean v. Anderson, 4 Har. (Del.) 209, 216 (1845); Emerson v. Thompson, 2 Pick. (Mass.) 473 (1824); Brewer v. Beckwith, 35 Miss. 467, 472 (1858); Case v. De Goes, 3 Caines (N. Y.) 262 (1805). See, also, 28 Am. & Eng. Ency. 577.

Statutes are common authorizing the recovery of mesne profits in ejectment. Alabama, Code 1907, § 3839; District of Columbia, Code of Laws 1901, § 995; Florida, Gen. St. 1906, § 1968; Illinois, Hurd's Rev. St. 1908, c. 45, § 33; Maine, Rev. St. 1883 (Supp. 1895) c. 104, § 11; Massachusetts, Rev. Laws 1902, c. 179, § 12; Michigan, Comp. Laws 1897, §§ 10,988-10,994, 10,99911,003; Mississippi, Code 1906, § 1848; New Jersey, 2 Gen. St. 1895, Ejectment, p. 1289, § 45; Vermort. St. 1894, § 1504; Virginia, Code 1904, § 2751; West Virginia, Code 1906, § 3365.

NACHTRIEB v. STONER.

(Supreme Court of Colorado Territory, 1872. 1 Colo. 423.)

WELLS, J.21 * * The plaintiff in the court below complained in effect, that the defendant had procured an inferior court to issue an attachment against the plaintiff's estate in a case where such process was unwarranted by law, and to give judgment and direct a sale of the estate upon mere constructive notice of the proceeding, he being then a resident of the territory, and entitled to actual notice by service of process; that by virtue of the sale so ordered, the defendant had possessed himself of and converted to his own use, property of the plaintiff to the value of several hundred dollars, and that all this was done in the prosecution of a pretended claim of indebtedness which never existed. The jury have found that the facts are as asserted by the plaintiff; the evidence warrants the finding. *

The circumstance, that before the alleged trespass a portion of the property was in the possession of a third person who had a special property therein by lien or pledge, does not, as we think, have the effect to defeat the plaintiff's action or modify the rule of damages. True, it is, in general, that in trespass de bonis the plaintiff must show, that at the time of the trespass complained of he had actual possession of the goods, or had property therein, either general or at least special, with the right to the immediate possession, and an outstanding possession in a third person, with the right in such person to retain it until the discharge of an indebtedness or the happening of some other condition might, with reason, be said to disable the general owner from bringing trespass. Gauche v. Mayer, 27 Ill. 134; Thorpe v. Burling, 11 Johns. (N. Y.) 285; Gay v. Smith, 38 N. H. 171.

For in such case the interest of the general owner is merely reversionary and not present, and for an injury to such interest case lies. but not trespass. But, in the present case, the demand for which the goods had been held in pledge was paid off by the plaintiff in the attachment, now plaintiff in error, before the levy, which involves the trespass complained of, and we think this, by construction of law, restored the general owner to his possession, for, though the pledgee of goods may clearly enough transfer possession thereof to another, as his servant or bailee, without waiver of his lien, and though, as we conceive, any third person may advance to the pledgee his demand, receiving possession of the goods as his security, and may lawfully retain such possession until repaid his advances, yet the authorities appear to be uniform, that if the pledgee or lienholder set up any title or claim inconsistent with or independent of the lien, this will amount to a waiver thereof. 3 Pars. on Cont. 244.

21 Statement of facts and part of the opinion omitted.

Therefore, inasmuch as the possession of the constable who levied the attachment complained of was from the beginning independent of and hostile to the lien by which the property had before been held -the very purpose for which the money was advanced to the pledgee being to enable the officer to proceed with the property in a manner inconsistent with the lien-it cannot be said that this incumbrance or special property followed the goods into the custody of the constable. On the contrary, by the payment of the amount for which the goods had before been held, the lien was dissolved and the right to the immediate possession was eo instanti restored to the general owner.

* * *

Affirmed.22

GILLESPIE v. DEW.

(Supreme Court of Alabama, 1827. 1 Stew. 229, 18 Am. Dec. 42.) In Greene Circuit Court, James Gillespie declared in trespass against Duncan Dew that, the defendant broke and entered his close, and cut down and carried away sundry timber trees, &c. General issue. Verdict and judgment for defendant. On the trial the plaintiff proved title to the land, and that the defendant had cut timber thereon and carried it away, while the plaintiff was so entitled. It was proved that the plaintiff resided about twenty miles from the land. It did not appear that any one was in actual possession when the timber was cut, &c. The Circuit Court charged the jury that, unless the evidence shewed that the plaintiff by himself or agent, was in actual possession of the land, when the trespass was committed, they must find for the defendant. To which the plaintiff excepted, and here assigned this matter as error.

Judge WHITE delivered the opinion of the Court.

The charge was in accordance with the English authorities, and with the decisions in some of the states in the Union. But in North Carolina, New York and Connecticut, it has been held that, where there is no adverse possession, he who has title, though he has never been in actual possession, may maintain the action of trespass.

The situation of our country requires this modification of the English doctrine. In England, almost all the lands are occupied, but here, the proprietor often lives at a great distance from some of his lands which are not occupied by tenants, and unless they can maintain this action, they must be denied an important remedy for injuries to their property Their right to this remedy is sustained by the strong

22 Chaunce v. Twenge, Y. B. 11 & 12 Edw. III, 38-40 (1337); Lotan v. Cross, 2 Camp. 464 (1810); Stanley v. Gaylord, 1 Cush. (Mass.) 536, 48 Am. Dec. 643 (1848); Thorp v. Burling, 11 Johns. (N. Y.) 285 (1814) semble; Buck v. Aikin, 1 Wend. (N. Y.) 466, 19 Am. Dec. 535 (1828). Accord.