By 6 Ann. c. 18, guardians, trustees, husbands seized in right of their wives, and tenants pur autre vie, holding ever without consent are made trespassers, but the act does not extend to lessees for years. Trees. If the lord of a manor cut down so many trees as not to leave sufficient estovers, his copyholder may bring trespass against him, and recover the value of the trees in damages; and if the lord leave sufficient estovers, yet he shall recover special damages; viz. for the loss of his umbrage, breaking his close, &c. therefore if the lord have a mind to cut trees, he ought to compound with his tenant.-Ashmead v. Ranger, E. 12 W. III. 12 Mod. $79. (a) If A. make a lease for years excepting the trees, the lessor may enter to shew the trees to a purchaser, and the lessee cannot bring trespass.Lifford's Case, 11 Co. 46. Note; If A. plant a tree upon the extremest limits of his land, and the tree growing extends its root into the land of B. A. and B. are tenants in common of the tree; but if all the roots grow in A.'s land, though the boughs shadow the land of B. yet the property of the whole is in A.~~ Glentram v. Hanby, M. 11 W. III. 1 Raym. 737. Crops. It is not necessary to have an interest in the soil, to maintain trespass quare clausum fregit, but an interest in the profits is sufficient, as he who has prima tonsura. So if J. S. agree with the owner of the soil to plow and sow the ground, and for that to give him half the crop, J. S. may have his action for treading down the corn, and the owner is not jointly concerned in the growing corn, but is to have half after it is reaped by way of rent, which may be of other things than money: (Welch v. Hall, per Powell, at Wells, 1700. Salk. MSS.) (b) Though ting accordingly; that the surrender ought, by 29 Car. 2. c. 3. s. 3. to have been by deed or note, in writing, or by act and operation of law. Mollett v. Brayne, 2 Camp. 104. And it is so upon cancelling a lease. Roe v. York Archbp. 6 East, 86. (a) A copyholder is not entitled to take trees for house-bote, firebote, &c. as a tenant for life or for years is, except by special custom of the manor. Montague, Lord, v. Shepperd, Cro. Eliz. 8. (b) Trespass for breaking plaintiff's close, and treading down hay. The plaintiff agreed with defendant for a standing crop of growing grass, then in a close of defendant's, the plaintiff to mow it and make the in hay; but no carnest nor memoran dum was given. Before the time of cutting by plaintiff, the defendant told him he should not have it, and he sold it to another person. Ellenborough, C. J. held, that a person entitled to the exclusive enjoyment of the crop growing, might in respect of such exclusive right, maintain trespass against any person doing the acts complained of in violation thereof. This crop, he said, was, at the time of the sale, an unsevered portion of the freehold, and as such not goods, wares, or merchandizes, within the 17th section of the statute of frauds. Held also that this agreement was not a lease, estate, interest of freehold, or term of years, or an in Co. Lit. 142, it is said it cannot be of the profits themselves; but that (as it seems) must be understood of the natural profits. (a) Trespass in Continuando.-The plaintiff may prove trespass at any [86] time before the action brought, though it be before or after the day laid in the declaration. (Co. Lit. 283. Per Holt, 4 Ann. at Hertford. But in trespass with a continuando the plaintiff ought to confine himself to time in the declaration; yet he may waive the continuando, and prove a trespass on any day before the action brought, or he may give in evidence only part of the time in the continuando.-Vide Webb v. Turner, E. 11 Geo. 2. Stra. 1095. Note; That of acts that terminate in themselves, and once done cannot be done again, there can be no continuando; as hunting or killing a hare, or five hares, but that ought to be alledged, that diversis diebus ac vicibus between such a day and such a day he killed five hares, and cut and carried away twenty trees. tinuance that cannot be continued, an uncertain interest of, in, to, or out of lands created by parol, within the meaning of the 1st section, so as to be void, as not having been put in writing; that the leases, &c. meant to be vacated by the 1st section, must be understood as leases of the like kind with those in the 2d section, but which conveyed a larger interest to the party than for a term of three years, and such also as were made under a rent reserved thereupon; that the agreement was a contract of an interest in, or at least concerning lands; that the statute does not immediately vacate such contracts, if made by parol, but only precludes bringing actions on the contract, which does not apply properly to the action now brought, which is merely trespass for an injury to the plaintiff's possession, but that the contract was executory, and as for the non-performance of it, no action could have been by the 4th section maintained, the court thought it might be discharged before any thing was done under it, which could amount to a part execution of it, as was here. Crosby v. Wadsworth, 6 East, 602. Where a full grown crop of potatoes was purchased while in the ground, to be taken up immediately And where a trespass is laid in con- by defendant, it was decided to be Certain lots of turnips, then grow- (a) If a person have the sole profits, he may maintain trespass. Per Buller, J. in R. v. Tolpuddle Inhab. 4 T. R. 677. Burt v. Moore, 5 T. R, 333. S. P. trial, for he ought to recover but for one trespass. But hunting may be continued as well as spoiling and consuming grass.-Monkton v. Pashley, H. 1 Ann. 2 Salk. 639. Whether the trespass may be laid with a continuando or not, depends much upon the consideration of good sense, as where trespass is brought for breaking a house or hedge, it may well be laid with a continuando, for that pulling away every brick or stick is a breach; but if the declaration be that the defendant threw down twenty perches of hedge continuando transgressionem prædictam from such a day to such a day, this must be intended of a prosternation done at the first day, and therefore will be ill upon demurrer, or judgment by default, but will be aided by verdict, because the court will intend that the jury gave no damage for the continuando.- Fontleroy v. Aylmer, H. 9 W. III. 1 Raym. 240. So trespass cannot be laid of loose chattels with a continuando, and if it be so laid, no evidence can be given but of the taking at one day, and therefore in trespass for mesne process it ought to be laid diversis diebus ac vicibus. (Ibid.) Where several trespasses are laid in one declaration, continuando transgressiones pradictus, and some of them may be laid with a continuando, and some not, after verdict, the continuando shall be extended only to the trespasses which may be laid with a continuando. (Monkton v. Pushley, sup.) So where the continuando is impossible, the court will intend no damages were given for it.-Anon. 4 W. III. 12 Mo. 24. my If disseisor cut down the trees, grass, or corn, growing upon my land, and afterward I re-enter, I may have an action of trespass against him, for after my regress the law supposes the freehold always continued [*87] in me; but if my disseisor make a *feoffment in fee, or a lease for ́years, and afterwards I enter, I may not have trespass against those who came in by title, for those fictions of law shall not have relation to make him who comes in by title a wrong-doer vi et armis.-Lifford's Ca. 12 Jac. I. 11 Co. 51. So the law is laid down by Lord Coke, but it may admit of doubt, for there are cases to the contrary, and the reason of the law seems to be with them.-Holcomb v. Rawlyns, H. 1587. Cro. Eliz. 540. Mo. 461. S. C. Trespass after Ejectment.—In trespass against the tenant in possession for mesne profits, either by the lessor or the nominal plaintiff, after a recovery in ejectment, the plaintiff need not prove a title; but it is sufficient to produce the judgment in ejectment, and the writ of possession executed, and to prove the value of the profits, and thereupon he shall recover from the time of the demise laid in the declara tion.-Astlin v. Parkin, M. 32 Geo. 2. (per omnes Justic. on a case reserved.) 2 Burr. 665. Barnes, 472, (4to. edit.) (a) Where the judginent was against the tenant in possession, and the action of trespass is brought against him, it seems sufficient to produce the judgment without proving the writ of possession executed, because by entering into the rule to confess, the defendant is estopped both as to the lessor and lessce, so that either may maintain trespass without proving an actual entry; (b) but where the judgment was against the casual ejector, and so no rule entered into, the lessor shall not maintain trespass without an actual entry, and therefore ought to prove the writ of possession executed.-Thorp v. Fry, Oct. Str. 5. (c) In case the plaintiff can prove his title accrued before the time of the demise, and prove the defendant to have been longer in possession, he shall recover antecedent profits; but in such case the defendant will be at liberty to controvert the title, which he cannot do in case the plaintiff do not go for more time than is contained in the demise; because being tenant in possession, he must have been served with the declaration, and therefore the record is against him conclusive evidence of the title; but against a precedent occupier the record is no evidence, and therefore against such a one it is necessary for the plaintiff to prove his title, and also to prove an actual entry; for trespass being a possessory action cannot be maintained without it. (Decosta v. Atkins, per Eyre, C. J. Hil. 4 Geo. 2.) (d) (a) In Goodtitle v. Tombs, 3 Wils. 121. Wilmot, C. J. said, that in trespass for mesne profits, the damages are not confined to the mere rent of the premises, but the jury may give more if they please; and he agreed with Gould, J. in his observation in S. C that the plaintiff in that case was not confined to the mesne profits only, but he may recover for his trouble, &c. Gould, J. said, he had known four times the value of the mesne profits given by a jury in this sort of action of trespass, and if it were not so to be sometimes, complete justice could not be done to the party injured; and the costs of the ejectment are generally recovered in this action. Gulliver v. Drinkwater, 2 T. R. 262. (b) Vide Button v. Box, at Oxford, T. 1742, and Northeson v. Bowler, at Exeter, S. P. It may be prudent, however, says Mr. Selwyn, (N. P. Abr. 673, n.) to be prepared with an executed copy of the writ of possession and return of execution; but if the plaintiff had been let into possession by the defendant, that will supersede the necessity of proving that the writ of possession has been executed. Calvart v. Horsfall, 4 Esp. N. P. C. 167. (c) As also the costs of the ejectment and the value of the mesne profits. Selw. N. P. Abr. 673. What the learned author means by a reference to Oct. Str. in this and many other places, the editor is at a loss to conjecture: Mr. Selwyn, in referring to the above case in pa. 672, n. (39) of his N. P. Abr. only states, that it was determined cor. Blencowe, J. 11 W. III. MS. Now it is to be observed, that Sir John Strange did not commence his reports till 2 Geo. I. from which it is to be inferred, that the reference cannot point to the octavo edition of Strange's Reports. (d) Vide etiam Denn v. White, 7 T. R. 112. But But it may admit of doubt what proof of an actual entry is sufficient: it has been said that the plaintiff will be entitled to recover the mesne profits only from the time he can prove himself to have been in actual pos[88] session; and therefore if a man make his will and die, the devisee will not be entitled to the profits till he has made an actual entry. (Stanynought v. Cousins, 2 Barnes, 367.) (a) Others have holden, that when once he has made an actual entry, that would have relation to the time his title accrued, so as entitle him to recover the mesne profits from that time, and they rely on the case in Sid. 239,(b) which was trespass brought for the mesne profits, devant le lease, and nothing said in the case about proving an actual entry antecedent to it: they say too, that if the law were not so, the courts would never have suffered plaintiffs in ejectments to lay their demises back in the manner they now do, and by that means entitle themselves to recover profits which they would not otherwise be entitled unto. (2 Rol. Abr. tit. Trespass per Relation, 554.) However, supposing a subsequent entry has relation to the time the plaintiff's title accrued, yet certainly the defendant may plead the statute of limitations, and by that means protect himself from all but the last six years. (c) (a) Where an entry was necessary to avoid a fine, defendant, by proving the fine, may prevent plaintiff from recovering any profits which accrued before the entry, which in such case the plaintiff should be prepared to prove. Compere v. Hicks, 7 T. R. 727. (b) Collingwood v. Ramsey, H. 16 Car. II. (c) In cases where the plaintiff does not enter into evidence of title, the defendant's evidence will, of course, be confined to the value of the profits and the time of his possession, and if the plaintiff claim profits for more than six years, the - defendant must plead the statute of limitations, to prevent his recovering any damages for the profits taken previous to that time. Peake's Evid. 328. As to other pleas, it has been held, that a fine and non-claim, or a descent cast, which takes away the right of entry, are good to bar the plaintiff's right. Run. on Eject. 235, ed. 1795. So is ancient demesne a good plea in ejectment with leave of the court, and the affidavit to obtain such leave must shew the lands of a manor Doe ex which is ancient demesne. So is accord and satisfaction, for But bankruptcy cannot be pleaded in bar to this action, it being to recover uncertain damages. Goodtitle v. North, Dougl. 562, (584.) yet if the demand of the damages can be liquidated and ascertained, without the intervention of a jury, it is a debt that may be proved. Utterson v. Vernon, 3 T. R. 539. But |