Holroyd, contrà, on the first point. The command may be traversed; and what is stated by way of inducement as to the title of Green, and as against Green and those who juftify under him, cannot vitiate that traverse. The very principle laid down in Trevilian v. Pyne fhews that the command may be traverfed; for as against a wrong-doer, a plaintiff may maintain trefpafs whether he have title or not, as in Graham v. Peat (a). No found diftinction can be fhewn in that respect between trespass and replevin; which latter was the cafe in judgment; and there it was held traversable; and the distinction taken as to trefpafs was extrajudicial and mistaken. Since it has been fettled that trefpafs will lie upon mere poffession against a wrong-doer, the plaintiff, by traverfing the command, and admitting pro hâc vice the foil and freehold to be in Portman, does not admit that he has no caufe of action; for though it were true that Portman had a right to enter upon the plaintiff, yet if the defendant had no fuch right, the plaintiff may ftill maintain this action upon his actual poffeffion against a wrongdoer. Suppofe (which is the fact) that Green had taken a long building lease under Portman, and after letting to the plaintiff, had employed the defendant to enter upon him; if he could thus fet up the title of Portman, which is unknown to the plaintiff, he would thereby be enabled to trefpafs with impunity upon his own leffee. This fhews the materiality of the command which is traversed. Two things must concur to conftitute a defence under the plea of liberum tenementum, namely, fuperior title in another, and that the defendant entered by command of that other both must be pleaded, then why in com (@) 1 Eaft, 244, and vide Harker v. Dirkbeck, 3 Burr. 1563. F 3 1809. CHAMBERS against DONALDSON. mon 70 1809. CHAMBERS against DONALDSON. mon sense may not both be traversed. In Cary v. Holt (a) the defendant in trespass made title and gave colour to the plaintiff, who replied de injuriâ, &c. and traversed the (a) This was cited from 2 Stra. 1238. where it is very fhortly reported. The following note of that cafe is from Mr. Ford's MS. CARY against HOLT, M. 19 Geo. 2. Trespass for breaking and entering the plaintiff's cellar. The defendant pleads that the place where, &c. is a copyhold tenement, parcel of the manor of Hampstead, and demised and demifeable from time immemorial at the will of the lord, according to the custom, &c., and that the lord, at a court held 11th Nov. 1731, granted a meffuage, of which the cellar is parcel, to the defendant; and that by virtue thereof the entered, &c. and so justifies the entry, &c. The plaintiff replies that the defendant entered of her own wrong; and traverfes that the cellar at the time when, &c. was parcel of the faid cuf tomary meffuage. Demurrer, and joinder in demurrer. Lawfon infifted that the replication was ill, because the plaintiff neither fets out a title in himself, nor traverfes the defendant's in a material Read's cafe, Cro. part. Telv. 173, 4. Priefly v. White, 6 Co. 24. Eliz. 30. Hering v. Blacklow, 2 Lutw. 1337. 1342. Meritons v. Benn and Others, 8 Co. 66. Crogate's cafe. That the plaintiff admits by his traverse that the cellar once was parcel, but not fo at the time of the trefpafs; for by traverfing that the cellar at the time when, &c. was not parcel of the customary meffuage, he admits that it once was, and therefore ought to have shewn how feifed. That the defendant's title is not put in question, but only whether the cellar is parcel, &c.; which is an immaterial iffue. 1 Roll. Rep. 46. Let's cafe, Cro. Car. 190. Shepberd's cafe. Stracey, e contrà, infifted that this was an action of trespass in nature of a poffeffory action, founded entirely upon the poffeffion, and there. fore not neceffary to fet out a title. 18 Ed. 4. fo. 10. p. 21. Trefpaís; the defendant, as here, made title to the place where, &c., which the plaintiff denied, without fhewing any title in himself: and it was held good and fufficient, because where the plaintiff traverfes the defendant's title, it would be unneceffary to fhew any title in himself; for poffeffion is fufficient title against a wrong-doer. Vin. Abr. tit. Trefpafs, 281, 2. E. per totum. The true diftinction feems to be between actions real, and perfonal actions. As to what is objected, that the traverse was im material, the title fet out by the defendant, without fhewing any in himself; and this was held good, as laying the defend ant's material, he infifted that the traversing the locus in quo, &c. to be parcel, &c. was the most material part of the plea, and puts the title in queftion; for when the defendant makes title to the cellar as parcel of the customary tenement, what can be more material than to deny it to be parcel, &c. The cafes which have been cited in fupport of the objections do not come up to the present cafe. In Yelv. 174, the plaintiff not only omitted fetting out a title in himself but likewise denying the defendant's title. The fame answer to Lee's cafe in 1 Roll. Rep. 46. The plaintiff traverses the command, which is perfectly immaterial, and not traversable without traverfing the title. So as to Crogate's cafe; the plaintiff replied de injuriâ fuâ propriâ, &c.; but the plaintiff here like. wife denies the cellar to be parcel, &c. LEE C. J. The exceptions to the replications are two; ift, That the defendant has fhewn title by grant from the lord, and therefore it was not fufficient for the plaintiff to traverse that, without fhewing a title himself. But although that rule may be good in general in real actions, yet it is otherwise in trespass; because in that cafe poffeffion is the plaintiff's title, and the material thing to traverse is the defendant's title. And fo it is held exprefsly in Cro. Eliz. 671. Knight v. Lodge; and the fame diftinction taken between real and perfonal actions. Cro. El. 891. Houfe v. Laxton. 2d, That the traverse is too narrow; because it only denies that the cellar at the time when, &c. was parcel, &c.; which feems to admit that it once was parcel, and yet does not fhew how fevered. But in this action the only material thing in queftion is, Whether it was parcel at the time when, &c.; for the plaintiff was only to maintain his right to the poffeffion at that time, and if not parcel at the time when, &c., the traverfe maintains the action. WRIGHT J. agreed with the Chief Justice, and cited Cro. El. 288. Juftice Tanner v. Fisher; that in trefpafs it is fufficient to deny the de. fendant's title, without fhewing a title in himself; and the fame dif tinction is there taken between real and perfonal actions. DENNISON J. 10 Ed. 4. 9. Diftinction between trefpafs and real actions. Goling v. William, 5 Geo. 1. (a). Trespass for breaking plain. 1809. CHAMBERS against DONALDSON. 1809. CHAMBERS egaix DONALDSON. ant's title out of the cafe; and then it stood upon the plaintiff's poffeffion, which was enough against a wrongdoer. The only principle on which a plea of liberum tenementum (a), which is anomalous, can proceed, is, that it puts the plaintiff on fhewing his right to the poffeffion; for if title be pleaded in another, and that the defendant entered by command of that other, it puts the right of poffeffion, as well as the poffeffion itself, out of the plaintiff by the very act for which he feeks to recover; but if the other party had no title, or the defendant who entered had no authority from him, fuch entry did not deveft the poffeffion of the plaintiff, Title may be given in evidence under the general issue (¿), and that the defendant entered on the plaintiff by command of the perfon entitled (c); and if so, surely the command may be traversed if pleaded; for if not traversable, it need not be proved; which is contrary to the current of au,thorities. The only cafe which bears against the plaintiff is Witham v. Barker (d); but that cafe has been tiff's clofe. The defendant juftified under a feoffment from the Duke of Beaufort, and gave the plaintiff colour. The plaintiff replied, that the defendant entered, &c. of his own wrong, and traverfed the feoffment. And upon a demurrer, the replication was held well; be. caufe the defendant's title was denied, and the plaintiff's poffeffion fufficient. As to the 2d objection, unless the cellar is parcel of the meffuage, the defendant's title is out of the cafe. If the lord had granted a cellar, the plaintiff must have denied it; but here he has only faid that be granted the meffuage with its appurtenances; and if the grant had been denied, inch traverse would have tried nothing material. So Judgment for the Plaintiff. (a) Vide Lambert v. Stroother, Willes' Rep. 222. (b) Dedd v. Kyffin, 7 Term Rep. 354. and Argent v. Durrant, 8 Term Rep 403. and the cafes there cited. (c) Gib. Evid. 258. (d) Yelv. 147. much much fhaken by Lord C. J. Willes in Lambert v. Stroo. ther (a), where the general fubject was very fully difcuffed. Then, 2dly, if the command may be traverfed, what is alleged in the replication with refpect to Green is mere inducement and will not hurt. The plaintiff does not make title to himfelf; if he did, the general rule as to pleading particular eftates would apply: but here it would have been fufficient to have faid that the defend. ant entered of his own wrong and without the cause affigned, and all the reft is furplufage; and there is no repugnancy. Scarlett, in reply, obferved of the cafe of Graham v. Peat (b), the lateft on this fubje&, that it did not contradict the principle he had contended for. There the title was fhewn to be in the rector, under whom the plaintiff himself claimed by leafe; and though that leafe were void by the flatute 13 Eliz. c. 20. for non-refidence; yet if the rector did not difpute the poffeffion of the plaintiff, he was in at leaft by licence of the perfon entitled, if not tenant from year to year by the payment of rent; and therefore still had a lawful poffeffion. But here title is fhewn in another, and nothing is ftated to fhew a lawful poffeffion in the plaintiff. Lord ELLENBOROUGH C. J. The pofition which is laid down in Trevilian v. Pyne, and which has certainly been the general opinion, that upon a plea to an action of trespass, of liberum tenementum in another by whose command the defendant entered, the command is not traverfable, comes now for the first time that I am aware of to be queftioned in a court of law. That opinion 1809. CHAMBERS again't DONALDSON, |