his right of entry to be lost by lapse of time, &c., he cannot, with or without entry, maintain an action of Trespass to recover for the mesne profits, or for the use and occupation of the land, in any shape. His remedy then is, to commence a writ of Entry, in which, showing his title, he recovers judgment for the land. After this recovery of judgment, however, before the service of the writ of habere facias possessionem, unless he enters by consent, (4 Esp. R. 166,) the demandant is not in possession of the land, so as to maintain Trespass; neither has he any right of entry, independently of the execution. If he had, the execution would be useless; since then he might enter and regain possession without the officer. But after he is put in possession by the officer, he then has a right from that time, to commence actions for trespasses committed afterwards. But according to the strictness of the ancient authorities, he can commence no actions for mesne profits, received before by the tenant or defendant. For, if he has any remedy, it must be in Trespass. But Trespass, it is well known, lies only for injuries done to the possession, and can only be brought by those who were actually, or in consideration of the law, in the possession of the land. But here, so far from being in possession at the time for which the mesne profits are claimed, the demandant or plaintiff had not then even a right of possession. And there is no confession of lease, entry, and ouster, to estop the tenant or defendant. It is plain, therefore, that from the principles of the law, and the nature of the actions to which recourse must be had, if to any, the plaintiff or demandant, in such case, can have no remedy for the mesne profits, unless the action of Ejectment is introduced.

It is said to be an unsettled question, whether, if A disseizes B, and then enfeoffs &c. C, and B recovers the land of C in an ejectment, he shall have an action for the mesne profits against C. Without referring to the numerous cases, dicta, and authorities, each way on this point, it may not be amiss to consider the decision, which a regard to the true merits and justice of the case might dictate. Let a case be put where the right of entry is taken away. Suppose A disseizes B, and then sells the land for $1000 to C, C occupies the land for twenty years, and clears $60 per annum, the interest of the purchase money; A also receives the interest of his purchase money, viz. $60 per annum; B afterwards recovers the land of C, and C then sues A on his covenant of warranty, and recovers the purchase money with interest. But if the matter rests here, justice is not done. For, though A, having received his $1000, and interest for twenty years, and having afterwards been obliged to refund. the whole to C, is neither better nor worse off than he would have been if he had never disseized B; yet C is a great gainer, and B is a great loser by the affair. For C has now, in his hands, not only the $1000, which he paid A for the land, together with interest for twenty years; but he has also the profits of the land, which he has received, and which he now retains contrary to natural right. These, in the case stated, cannot in round numbers amount to less than $1400 or $1500. This money in justice belongs to B. But, for the recovery of this property, no remedy whatever is furnished by any principle of law, acknowledged within this commonwealth; and the statute law is so far from furnishing any, that, if C has laid out the annual rents, which he has received from the land in making improvements, B, when he recovers judgment for the land, must allow him for those improvements which have been made with B's own money. See the various Betterment acts of this commonwealth.

But if a case is put where the right of entry is not taken away, for instance, suppose A disseizes B, and, after holding the land two years, con

veys to C, who occupies the same eight years; in such case B is under no necessity of bringing a writ of Entry, for he may enter at once. After his entry, however, he cannot maintain Trespass, or any other action against A, for mesne profits, on account of the statute of limitations. For the same reason, he can maintain no action against C, for mesne profits accruing during any time which elapsed more than six years before B's entry. But, for the mesne profits of the six years next preceding B's entry, B, without doubt, may recover against C in an action of Trespass; or, waiving the trespass, in an action for use and occupation. The reason of this is, that by his re-entry he elects to consider himself as not disseized; and this he may do, because he still retains his right of entry; and, by this re-entry, A and C become mere trespassers, and each, where the statute of limitations does not interpose, is answerable for the mesne profits which he received in his own time.

But if B, instead of entering, elects to bring a writ of Entry, then he elects to consider himself as disseized, for such is the allegation of the writ; and whether he can, in that case, after recovery, maintain Trespass for mesne profits, is the principal point in controversy in the case. Emerson v. Thompson et al., 2 Pick. 473.

It may here be observed, 1. That, for a disseizin, a writ of Entry is the proper remedy. 2. That in strictness where a man is disseized, he has neither possession nor right of possession. Because, even if a man is forcibly ejected from his land, and it is fenced off against him, it is nothing more than a mere trespass, unless he elects to consider himself as disseized, and in such case, if he does not, by his negligence, suffer the trespass to be matured into a disseizin by the operation of the statute of limitations, he is under no necessity of bringing any other action than Trespass, after entry; and, if his entry is prevented, may have recourse to the process of forcible entry and detainer to obtain it. 3. That an action of Trespass lies only for injuries to the possession; and therefore while a man has neither possession nor a right of possession, he cannot be, either actually or in construction of law, so in the possession of land as to maintain Trespass. 4. That where a man brings a writ of Entry, he admits that the tenant is in possession under title; and that he, the demandant, is disseized, that is, that his title, upon which his right of pos session is grounded, is displaced, and consequently, until the question of title is settled, has no right to the possession of the land. 5. From these premises, if correct (and they are believed to be so,) the conclusion seems to follow, that after a person has alleged in his writ of Entry, that he has been disseized, he shall not be permitted afterwards, by bringing an action of Trespass for mesne profits during the time of such disseizin, to contradict himself by saying, that he then was in possession. As the court were not unanimous in Emerson v. Thompson, it may still be advisible, therefore, in all cases where the right of entry is not taken away, rather to enter, and afterwards bring Trespass, than to resort to a real action; and, as the right of entry is never taken away by lapse of time, unless where the statute of limitations must necessarily bar the right to recover in Trespass quare clausum fregit (the single case of a descent cast, excepted,) there seems to be no necessity that this question should ever arise again.

But now, under the Rev. Stat. of Mass. chap. 101, sect. 14, if the demandant recovers judgment in a writ of Entry, he is entitled to damages in the same action, for the rents and profits, from the time when his title accrued, subject, &c. and damages also for any waste of the buildings, &c. for which the tenant is chargeable by law.

For nailing boards before the plaintiff's windows. For that the said E, on &c, at &c., with force and arms, put and placed before and against certain windows of the plaintiff, of and belonging to the dwellinghouse of the plaintiff, there situate, divers boards, and nailed and fastened the said boards to the frames of the said windows, and kept and continued the said boards so nailed and fastened as aforesaid, for a long space of time, to wit, from thence hitherto; whereby the light, during all the time aforesaid, hath been greatly obstructed and prevented from entering the said dwellinghouse through the said windows, and the said dwellinghouse thereby hath been greatly darkened; and other wrongs, &c.

For breaking and entering plaintiff's house, &c., consuming victuals, preventing cultivation of lands, &c.

For that the said D and E, on &c., with force and arms, broke and entered the dwellinghouse, three barns, two stables, one granary, and eighteen closes of the plaintiff, at &c. aforesaid, and continued in the said dwellinghouse against the will of the plaintiff, from thenceforth until the day of &c., and during that time, did eat and consume the victuals and drink of the plaintiff there found, of the value of $, and lay in the beds of the plaintiff there; and afterwards, on &c., again broke and entered the said barns, stables, granaries and closes of the plaintiff, and locked up the doors of the said barns, stables and granaries, and the gates of the said closes, and kept and continued the same locked up, from thenceforth until the day of &c. by reason whereof, the plaintiff, during that time, not only lost the use of the said barns, stables and granaries, but was hindered and prevented from the manuring, use and occupation of the said closes, and during all that time, could not plough and sow the same, in a due course of husbandry; and other wrongs, &c.

Quare clausum fregit, with continuando, &c.

For that the said D, on &c., with force and arms, broke and entered the closes of the plaintiff, to wit, one close, called the yard, and one other close called the garden, at &c., in &c., aforesaid, and then and there, with his feet in walking, trod down and damaged the grass there then growing; and with certain cattle, to wit, horses &c., trod down, ate up, and consumed other the grass of the plaintiff, there then growing, of the value of $; and dil, then and there,

break, throw down, and spoil the fences of the plaintiff, standing ou the said closes, and did, then and there, break up and dig the soil of the said closes; CONTINUING the said trespass, as to treading down and consuming the said grass in walking thereon, and eating up and treading down the said other grass with cattle, at divers days and times, from &c. until &c.; and other wrongs, &c.

Quare clausum fregit; for entering plaintiff's rooms, debauching his wife, and carrying her away.

For that the said D, on &c., at &c., with force and arms, broke and entered three apartments of the plaintiff, wherein the plaintiff and his family inhabited and resided, and part and parcel of a certain dwellinghouse, there situate, and then and there made a great noise and disturbance, in the said apartments, and staid therein for a long space of time, to wit, for the space of hours, then next following, without the leave and against the will of the plaintiff, and, whilst he was in the said apartments of the plaintiff, to wit, on &c., at &c., with force and arms, made an assault on A, then and now being the wife of the plaintiff, and then and there debauched and carnally knew the said A, and then and there, by force, took and carried away the said wife of the plaintiff, from his said dwelling, to places, to the plaintiff unknown, and kept and detained the said wife of the plaintiff, from his said dwelling, for a long space of time, to wit, from thence hitherto, by means whereof, the plaintiff hath during all that time, lost and been deprived of the company and assistance of his said wife, in his domestic affairs, and his felicity therein hath been greatly interrupted and disturbed, to wit, at &c.; and other wrongs, &c.

NOTE. Where it is uncertain, whether the plaintiff can prove the crim. con., a second count may be introduced, and the words in the above precedent, in italics, may be omitted.

Quare clausum fregit; taking away plaintiff's mare, &c.

For that the said D, on &c., with force and arms, broke and entered a certain close of the plaintiff, at &c., and then and there, with force and arms, took and carried away a certain mare of the plaintiff, there then being, of the value of $-, and kept and detained the said mare, and still keeps and detains the same; (or instead of the conclusion in italics,) and converted, and disposed thereof to his own use.

NOTE. A second count may be added, omitting the breach of close.

Quare clausum fregit; digging and carrying away peat, &c.

For that the said D and E, on &c., with force and arms, broke and entered the plaintiff's close, called the peal lot, situate in &c., and cut up, dug up, took, and carried away the soil, turves, and peat of the plaintiff, to wit, ten cartloads of soil, ten cart-loads of turves, and ten cart-loads of peat, there then being of great value, to wit, of the value of $, and converted and disposed of the same to their own use; and other wrongs, &c.

NOTE. Where a declaration in Trespass was for taking " goods, chattels, and effects," it was held that the plaintiff might recover for fixtures. 4 B. & A. 206.

REAL ACTIONS.

Writ of Right.

F. N. B. 1 A;

A Writ of Right is the highest of all Real Actions, and the last remedy for the recovery of lands and tenements. Comyn's Digest, Droit, B. 1. Like all other Real Actions, it must be brought in the county where the land lies, and against the tenant of the freehold, and not against a tenant for years, or other mere occupant in possession. Ib.

It is a concurrent remedy with other Real Actions of inferior degree and may be brought for the same lands, after an unsuccessful termination of any of them, by judgment on a verdict, or upon default of the demandant. lb.

It may also be brought, when the length of time elapsed, is a bar to other real actions, by the statute of limitations.

Ib.

But, after judgment upon a default or a nonsuit, after the mise joined in a Writ of Right, the demandant can never have another Writ of Right. F. N. B. 5 N. Before the mise joined, however, in a Writ of Right, if the demandant makes default, he may have a Writ of Right, de novo. Fitz. N. B. 5 N.

This action can be maintained by tenant in fee simple only; for, tenant in fee tail, or tenant for life, cannot have it. F. N. B. 1 B.

But a tenant in fee simple conditional, it seems, may have this writ.

In order to recover in this action, it is necessary that the demandant, or the ancestor under whom he claims, should have been actually seized within the time limited by the statute of limitations.

In Massachusetts, before the Revised Statutes, if the demardant relied on his own seizin, he must have brought his action within thirty years after he was last seized; if on the seizin of his ancestor, he must bring his action within forty years after such seizin, unless the demandant was within some of the exceptions of the statute of limitations,