
    Hiram Emerson versus William Thompson et al.
    
    The Si. 32 Hen. 8, c. 33, giving a right of entry upon the heir of a disseisor within five years from the disseisin, has been adopted in this commonwealth.
    A disseisee recovered judgment against the heirs of the disseisor in a writ of entry ¡ in which they pleaded that they' did not disseise, and re-entered on his writ of seisin within five years from the disseisin by the ancestor. Held, that the heirs were liable in trespass for the mesne profits accruing after the commencement of the writ of entry, (and so, it seems, they would have been, if they had been purchasers,) but not for those accruing between the descent cast and their entry. As to those accruing between their entry and the commencement of the writ of entry, quaere.
    
    Trespass for mesne profits. A trial was had upon the general issue, at March term 1822, before Wilde J., when the following facts appeared in the case.
    The plaintiff having recovered a judgment against the administrators de bonis non of the estate of John Harris, deceased, levied his execution on the 30th of March, 1818, upon real estate, consisting of part of a store in Charlestown, then in the possession of J. and J. H. Brown, under a purchase from the same administrators. Before the plaintiff levied his execution, William Thompson, the father of the defendants, had recovered judgment for the premises in a writ of entry sur disseisin against the Browns,  and on the 8th of May, 1818, he executed his habere facias seisinam and expelled the Browns, who were then in possession under a lease which the plaintiff had made to them immediately after his levy.
    William Thompson, the elder, died on the 16th of November, 1818, and the defendants were his heirs at law. On the 20th of May, 1819, William Thompson, the defendant, in his capacity of administrator upon his father’s estate, leased the premises in question for one year ; and it did not appear that he, or any other of the defendants, had at any time before entered upon the premises, after the death of their ancestor.
    On the 21st of May, 1819, the plaintiff brought his action against the defendants, for the premises, in which he declared as follows : — “In a plea of ejectment, wherein the plaintiff demands against the defendants seisin and possession of, &c., into which the said defendants have not entry but by William Thompson &c. deceased, who thereof unjustly disseised the plaintiff, and from whom the same descended to the defendants, and saith that he the said Emerson was seised of, &c., in his demesne as of fee, &c., within thirty years last past, &c., and was unjustly disseised thereof by the said William Thompson deceased, from whom the same descended to the defendants, who still unjustly withhold the same from the plaintiff.” To this the defendants pleaded, “ that they never disseised in manner and form,” &c. Upon this issue, the plaintiff obtained a verdict and judgment, and on the 17th of April, 1821, had his writ of seisin duly executed.
    The counsel for the plaintiff, upon this evidence, contended that he was entitled to a judgment for the mesne profits from the levy of his execution, or at least from the death of Thompson the father; but the jury were instructed to compute the damages from the 21st of May, 1819, the time when the plaintiff commenced his suit for the recovery of the premises ; and they found a verdict accordingly, assessing the damages at 200 dollars per annum. It was agreed by the parties, that if the Court should be of opinion that the plaintiff was entitled to damages for any rents and profits previous to the 21st of May, 1819, the verdict should be altered so as t) conform to such opinion.
    The cause was first argued at the bar, at October term 1822.
    
      L. M. Parker for the plaintiff.
    The plaintiff has a right to recover the mesne profits for some length of time ; the recovery in ejectment is conclusive on this point; Running. Ejectm. 442 ; Bull. N. P. 87 ; Bac. Abi Ejectm. H ; Aslin Parkin, 2 Burr. 667 ; Adams on Ejectm. 334 ; Benson v. Matsdorf, 2 Johns. R. 369 ; and we say the defendants are liable from the time of the disseisin by the ancestor The heirs take the land with all the incidents to which it was liable in the hands of the ancestor. In Jackson v. Stone, 13 Johns. R. 447, it was held, that where, during the pend-ency of an action of ejectment, the defendant gives up the possession to a third person, and afterwards the plaintiff recovers judgment, such third person is liable for the mesne profits. The heirs ought not to be better off than an innocent purchaser. The ancestor would have been liable for the rents and profits from the time of the disseisin. If the plaintiff cannot have a remedy against the heirs, he will have none against any person for the time previous to the ancestor’s death.
    The defendants are liable at least for the time since the descent cast. They became seised at that time, as by plead ing the general issue in the action of ejectment they admit, (Higbee v. Rice, 5 Mass. R. 352,) and could be divested by action only, and not by a mere entry. Lit. § 385 ; Co. Lit. 238 a. The legal seisin carries with it the possession, unless there is adverse possession. Prop. of Kennebeck &c. v. Call, 1 Mass. R. 484. If then they were seised from the death of their ancestor, they are liable in trespass for the mesne profits from that time.
    
      Stearns for the defendants.
    The recovery in ejectment, as the former action has been called, did not give a right to mesne profits, for the party must show not only a title, but also a right of entry. Cox v. Callender, 6 Mass. R. 533 ; Fletcher v. M'Farlane, 12 Mass. R. 43. Without a right of entry an action of ejectment in the English form cannot be maintained. The plaintiff’s former action however was a writ of entry in the per, rather than an action of ejectment, and the doctrine in the English books in regard to the action of ejectment is therefore not applicable. The position asserted on the part of the plaintiff, that his entry was tolled, forms the basis of our defence. That this right was tolled, appears from 3 Bl. Comm. 176, where it is said, “ descents which take away entries, are when any one, seised by any means whatsoever, &c., dies,” &c. This is more comprehensive and more correct than the definition given by Littleton, § 385, who speaks of a descent from a disseisor only. It is believed that we have not adopted the St. 32 Hen. 8, c. 33, which provides, that except a disseisor has been in possession five years, his dying seised shall not take away an entry. This statute however extends only to the heir of a disseisor. Co. Lit. 237 6, 238 a, and notes, 239 a, note 1. Thompson, the ancestor, was not a disseisor. In Taylor v. Horde, 1 Burr. 114, Lord Mansfield says, “ The true owner cannot even elect to make a person in possession under a judgment in ejectment a disseisor.” “ The entry is not injuste et sine judicio ; but under authority of a court of justice and lawful; therefore not liable to punishment by fine, (as every disseisin was.)” Thompson came in by judgment of law against the Browns, who entered under a deed from the administrator, and who had a seisin sufficient, it is apprehended, to make them tenants to the prcecipe in a common recovery, and if so, it was sufficient in a writ of entry. The finding of the jury, which in form is, that the defendants disseised, is not to govern, when it appears by the case that there was no disseisin.
    Admitting that Thompson was a disseisor, it does not follow that the defendants are trespassers. The judgment in the writ of entry is not conclusive as to that fact. It does not appear that they ever entered after the death of their ancestor, and if they did not, the law, by merely casting the descent, does not make them liable as trespassers. Where a descent, is cast, but there is no entry in fact, and one of the heirs, as administrator, leases the land, he does it on the ground that the ancestor had a term for years. The lease made by William Thompson, the son, was made in his capacity of administrator. If he did not enter as heir, there was no entry by the other heirs, and a joint action against them s not sustainable.
    At the November term 1823, in Suffolk, Parker C. J. observed, that this case was one in which the Court had great difficulty in coming to a decision, but that the point in regard to which they were most doubtful, had not been much discussed by the counsel. It is alleged by the plaintiff, that the ancestor of the defendants disseised, and that the possession fell to his heirs. On the part of the defendants it was contended that the ancestor, having come in under a judgment, was not a disseisor; that the heirs came lawfully into possession, and the descent cast tolled an entry; and that the St. 32 Hen. 8, c. 33, had not been adopted in this State. We are of opinion that the ancestor did disseise. In Cummings v. Noyes, 10 Mass. R. 433, the defendant entered under a judgment against the plaintiff himself, which was afterwards reversed ; but this case is different ; here the ancestor entered under a judgment which was not against this plaintiff, and which cannot prejudice his rights. As to the statute of Hen. 8, we all know that it has been frequently applied, particularly in the District of Maine, as being in force in this State. Now the question about which we doubted is, whether, as the possession of the defendants was originally lawful, trespass will lie against them' for the mesne profits before actual entry by the plaintiff. It is true that they retained possession after a demand made, but as they came in by a lawful title, the question is, whether they can be made trespassers by relation. This is indeed a mere technical question ; for as the" defendants received the rents for two years after the plaintiff brought his writ to obtain possession, justice seems to require that they should account for them.
    In consequence of these suggestions the cause was argued again, in writing.
    Stearns, for the defendants,
    contended that the action for mesne profits was an action of trespass quare clausum fregit, and in no respect different from the common action of trespass for injuries to real property. The judgment in the former action, that the plaintiff should recover seisin, does not affect the question of his right to mesne profits, except as evidence of his title to the premises. By his entry undei his writ of seisin on the 17th of April, 1821, he is in the same situation that he would have been in, if he had on that day taken possession by his entry only, without having com menced any suit.
    A recovery in the English action of ejectment s conclusive on the question of mesne profits, because the defendant is estopped from denying what he has confessed upon the record, that the plaintiff had entered on the land on the day on which the demise is laid; this puts the plaintiff in the same situation with a demandant in a writ of entry in our practice, who had actually entered on the day of the fictitious demise, and then brought his action and recovered. This distinction between these two modes of proceeding is of no consequence, where the recovery in a writ of entry is against the disseisor himself; but where it is against his heir or grantee it becomes highly important. If the - plaintiff had brought against Thompson the elder a writ of entry (which would have been entry in the quibus) and had recovered, he might then have maintained trespass for the mesne profits from the time when he was disseised. But Thompson the elder died, and the trespass which he had committed died with him. By his death the premises were cast upon the defendants, but they were not trespassers, because the plaintiff was disseised, as he himself affirms, before the descent, and having never re-entered until he executed his writ of seisin, he was never in possession during any part of the time for which he has demanded damages, and he cannot maintain this action. No principle of law is more fully established, than that in order to maintain trespass quare clausum fregit, the plaintiff must have the possession in fact of the premises. 4 Leon. 184 ; Bro. Trespass, pl. 227, pl. 365 ; 3 Bl. Com. 210. Therefore a disseisee, until he has reentered, can maintain trespass for no act done after the disseisin. Com. Dig. Trespass, B, 2, B, 3 ; Taylor v. Townsend, 8 Mass. R. 415.
    The liability of the defendants in this action would be nowise different, whether they were heirs, grantees in fee, lessees for life or at will, or even disseisors of the disseisor. In the last case the plaintiff’s remedy to recover the premises would be by writ of entry in the post, but in none of these cases could he recover the mesne profits, unless he had actual possession at the time of the wrong done. If the plaintiff had not actual possession, then in none of these cases would the defendants be either disseisors or trespassers, and the plaintiff’s entry under his writ of seisin cannot relate back, 80 as t0 make them liable as trespassers. Tobey v. Webster, 3 Johns. R. 468 ; Liford’s case, 11 Co. 51 ; Compere v. Hicks, 7 T. R. 723.
    If Thompson the elder, by his entry on the 8th of May, committed a trespass, it was not upon the plaintiff, but upon the Browns, his lessees. The plaintiff had parted with the possession voluntarily, and did not re-enter until he executed his writ of seisin against the defendants. He could therefore have maintained no action against Thompson the elder for having entered on the 8th of May, but his tenants should have brought the action.
    But according to Taylor v. Horde, 1 Burr. 114, the elder Thompson could not be considered as a disseisor in consequence of his entry under the writ of seisin. As he, then, upon this ground, as well as the one just noticed, was not a disseisor, his heirs, who came into the estate by descent, cannot be made trespassers in the present case.
    It was said by the counsel for the plaintiff, in the former argument, that if the recovery had been by the English action of ejectment, instead of a writ of entry, the action for the mesne profits might well be maintained, and therefore the Court ought to uphold the plaintiff’s claim. It is sufficient to reply, that the fiction in that action has never been adopted here ; and it would be absurd and incongruous to attempt to connect it with our practice, and apply it to a real action brought to recover, not a term, but a freehold. The distinction is well settled, that if the party would have the benefit of an entry, he must take care to make it in season; since the law does not allow our courts to compel a party to confess an entry which never was made, nor to decide that a party was in the actual possession when in truth he was out of possession.
    
      Rand and L. M. Parker for the plaintiff.
    Our possessory writs do not bear an exact resemblance to the ancient English writs of entry, and there seems to be no reason for arranging them in different classes, and making the same distinctions between them as were made between writs of entry by the ancient lawyers. The reasons which gave rise to those different forms of action have long since ceased to exist. In common parlance at least, our writs are called writs of ejectment, and they are brought for the same purposes as the English writ of ejectment. They contain a concise narrative of the facts of the case, and usually conclude by alleging an ejectment or deforcement of the demandant from his land. The plea commonly put in by the tenant is nul disseisin by himself. Our writs treat the tenant as a tortfeasor, and there is now no reason why he should not be so considered, whether he comes in by purchase or descent from a prior disseisor, or by his own tortious act.
    But let us suppose the plaintiff’s first writ to be a writ of entry in the per, with all the privileges and disabilities of that ancient writ. Then since it is alleged in the writ, that the entry of Thompson, the ancestor, was tortious, and that the defendants came in under him, as they might have traversed these material facts and have not done it, they have by pleading other matter admitted them. Booth, bk. 3, c. 3; Rast. Ent. 249. In this view of the case, it is true, we must lay aside the concluding clause of the writ, “ who still unjustly withhold the same from the plaintiff,” (which is the peculiar conclusion in a writ in the post, Reg. 228 ; F. N. B. 201, E,) and consider it as alleging no deforcement by the defendants, but simply that they came in as heirs to the original disseisor. But although the writ, by this construction of it, does not declare them to be tortfeasors, the law (St 32 Hen. 8, c. 33) declares them to be so.
    In the former action between these parties the defendants pleaded that they never disseised, in manner &c., and the jury found that they did disseise the demandant. They are therefore now estopped from denying that their entry was gained by tort as early at least as the 21st of May, 1819, the date of the writ in that action. If the judgment in ejectment in England is conclusive for the mesne profits between the demise laid and the recovery of possession, á fortiori, a judgment in a writ of entry sur disseisin upon a verdict that the tenants were guilty of a tort, must be conclusive upon the tenants, in an action of trespass, for at least the mesne profits accruing subsequently to the date of such writ. The confession of lease, entry and ouster in the English action is mere form. An actual entry is not now necessary ; nor was it ever held to be so, except to give validity to the lease which makes a part of the proceedings, by avoiding the technical objection, that no one out of possession could convey a valid title. Adams on Ejectm. 11. A right of entry will support the action ; and this too is necessary only for the purpose before mentioned ; and the demise may be laid back to the time when the title first accrued. Adams on Ejectm. 334 ; Bul. N. P. 87. The plaintiff might have brought his possessory action on the day of the descent cast, and might then have treated the defendants as tortfeasors. If he delayed to bring his suit, still, he had a right to consider them as trespassers from that time. By alleging the disseisin by Thompson the elder, and the descent cast, he has not waived the tort. The defendants, by pleading that they did not disseise, have admitted that they were tenants of the freehold and that they entered into possession claiming as heirs of Thompson the deceased. It is to be presumed therefore, after a verdict and judgment against them, that they tortiously entered and took the rents and profits which accrued subsequently to the death of the original disseisor, until the plaintiff obtained possession under his writ of possession in April 1821. Having obtained possession, what prevents the plaintiff from maintaining his action of trespass for these mesne profits ? His absence from the possession created a temporary suspension of his remedy, but having re-entered, his entry relates back to the time when he formerly was in possession, or when his title first accrued. 1 Chit. Pl. 177 ; 2 Rol. Abr. 554 ; Starr v. Jackson, 11 Mass. R. 520.
    The objection that the plaintiff’s entry shall not relate back so as to give a right of action against the defendants, would have more plausibility and apparent equity, if they had come in as innocent purchasers ; whereas they have not only had the benefits of the rents and profits since their father’s death, but have also been gainers by their father’s tortious possession of the premises and taking the rents and profits, inasmuch as his estate was thereby enriched. The doctrine of relation, if applied in its full extent, would work no injury to them, but would only give to the plaintiff that to which in equity he is entitled.
    The decision in Taylor v. Townsend seems to have turned upon points not relevant to the present case. Compere v. Hicks was trespass for mesne profits anterior to an entry to avoid a fine with proclamations, and it was decided that the plaintiff could not recover, because his title did not accrue before such entry. He could not lay the demise in his ejectment previous to the entry. So in Berrington v. Parkhurst, Andr. 136, it was held, for the same reason, that ejectment could not be maintained until after entry to avoid the fine ; and Lee C. J. said, “ This case therefore is not parallel to an action brought by a disseisee after entry for the mesne profits, to which it has been compared ; for here if the lessor is entitled to the mesne profits from the time of his demise, he will recover them from a time when he had no title ; whereas, in the other, the profits are recoverable only from the time when the disseisee had a title.” The reason why an entry is necessary, in the case of a fine, in order to give a title, is because the St. 4 Hen. 7, c. 24, has made it so. Adams on Ejectm. 83, 84.
    In Liford’s case, 11 Co. 51, there is indeed a dictum of Lord Coke C. J., that the disseisee, after re-entry, cannot recover in an action for mesne profits against the feoffee, lessee, &c., or disseisor of the first disseisor ; and the reasons given are, that 11 this fiction of the law, that the freehold continued always in the disseisee, shall not have relation to make him, who comes in by title, a wrongdoer vi et armis ; ” that “it is to be presumed that the feoffee has given consideration or recompense to the disseisor, and that the lessee has paid rent to him or other consideration, and therefore in reason the disseisor is to be charged with the whole ; ” and in respect to the disseisor of the disseisor, that the “ fiction of law as to action, extends only to the first disseisor, and if the disseisee should punish the second disseisor, he would be twice charged.” Now neither of the two last reasons is applicable to the present case ; and since the plaintiff’s right of entry was not tolled by the descent, and no actual entry was necessary to maintain ejectment, wherein the demise might be laid back to the time of the descent cast, and since after recovery in ejectment the judgment would be conclusive as to the mesne profits accruing after the time of the demise laid, there should seem to be no solidity in the first reason when applied to our case. The only case worthy of notice which supports any part of Lord Coke’s opinion, is in Keilway, 1 6, where the defendant prevailed, after a verdict for the plaintiff, because it appeared from the record, that the action was brought for the mesne profits against the feoffee of the disseisor, before entry by the plaintiff, the issue joined being held to be immaterial. It is there said, that at common law, before the statute of Gloucester, the disseisee in such case had no remedy except against the disseisor ; and that the remedy given by the statute against the mean occupiers “ is by assize only and not in an action of trespass, for this is as it was before the making of the statute.” The reason here given is very different from, those given by Lord Coke. The same law is laid down arguendo, and the same reason given, in Moore v. Hussey, Hob. 98, where it is said, that trespass vi et armis will not lie, “ for that fits not his case as to them who did no immediate trespass.” If then, as it should seem from these authorities, an assize of novel disseisin would have been maintainable in this, as well as in all the cases before mentioned, (2 Inst. 284,) surely, since this ancient writ is now entirely out of use, the plaintiff ought to be allowed to maintain his action of trespass. By the statute of Gloucester, even the person coming into possession by title, as by feoffment, was made liable, in case the original disseisor had not sufficient property whereof the damages might be levied. Much more ought the heir to be holden for damages done or profits received by himself after the death of his ancestor. For these no claim can be made on the estate of the original disseisor. Indeed none of the reasons given in any of the abovecited cases have any application to such a case. Much less do they apply to the mesne profits accruing between the suing out of the possessory action against the defendants, and the recovery of judgment therein. It would be a reproach to the law, if it furnished no remedy to recover such mesne profits as may have
    
      accrued while the defendants have been resisting the plaintiff’s entry, until the last process of the law has put him in possession.
    But the opinions above cited from Liford's case are not laid down by Lord Coke as settled law, and they are against the weight of the authorities. The same points had beef solemnly decided the other way, in the case of Holcomb Rawlyns, reported in Cro. Eliz. 540, Moore, 461, and Owen, 111. See also Hammond’s N. P. 195 ; Rol. Abr. Tresp. per Relation, pl. 7, 8 ; Gilb. Ten. 46, 47 ; Bull. N. P. 87 ; Adams on Ejectm. 334, 185 ; Burne v. Richardson, 4 Taunt. 720.
    The lease to the Browns had expired at the time of the descent cast, and they had then no interest in the land and could claim no rents or profits ; and the plaintiff, by his re-entry, must be considered as having been in possession from the period at which the lessees’ interest expired.
    
      
       Reported in 16 Mass. R. 172. But see Emerson v. Thompson et al., ilia 432.
    
   Wilde J.

delivered the opinion of a majority of the Court. The question raised at the trial related to the extent of the defendants’ liability ; but it has been since argued that they are not by law at all liable in this "action, it being trespass against the heirs of the disseisor, who came to the possession by lawful title. And this is the principal question now to be determined.

An action of trespass, being a possessory action, cannot be maintained, unless the plaintiff had the actual or constructive possession of the property trespassed upon, at the time of the trespass. A disseisee, therefore, cannot maintain trespass against the disseisor for an injury done to the land after the disseisin, until he shall have gained possession by re-entry ; after which he may have an action of trespass for the intermediate damages or mesne profits during the time of the tortious dispossession. The law in such cases resorts to a fiction for the attainment of justice ; and supposes the freehold to have been all along in the rightfu. owner by a kind of jus postliminii ; and thus he is considered as having a constructive possession while the actual possession was in the disseisor. Liford’s case, 11 Co. 51. If, therefore, A disseise B, and C disseise A, and afterwards B re-enter, he may maintain trespass against both C and A, f°r both are wrongdoers. 2 Rol. Abr. 554.

But it isiaid down in Bro. Tresp. pl. 35, that if a disseis- or makes a lease or feoffment, and afterwards the disseisee re-enters, he cannot, although he thereby reduces the possession to himself from the time of the disseisin, maintain an action of trespass against the lessee or feoffee ; because the lessee or feoffee came in by title. Bac. Abr. Tresp. G, 2. It was however decided in the case of Holcomb v. Rawlyns, Cro. Eliz. 540, that an action of trespass might be maintained in such case against the lessee or feoffee, notwithstanding the plea of title. This was denied to be law, in two subsequent cases, (Liford’s case, 11 Co. 51, and Symons v. Symons, 3 Car. 1, Hetley, 66,) and Lord Coke, in Li-ford’s case, refers to several ancient cases in support of his opinion, acknowledging at the same time that “ there was great variety of opinions in the books,” so that it appears that this point was not well settled in Lord Coke’s day ; and such has since been the infrequency of real actions in the English courts, that we look in vain for any further light in the modern English cases. But Lord Rolle, in his Abridgment, lays down the law in conformity with the decision of the court in the case of Holcomb v. Rawlyns, noticing Liford’s case to the contrary. 2 Rol. Abr. 554, Tresp. per Relation. In like manner the law is laid down by Gilbert and Comyns. Gilb. Ten. 47, 50 ; Com. Dig. Tresp. B, 2. Gilbert says, that the old law was in conformity with the opinion of Lord Coke, and the reason he assigns, why the feoffee’s title was formerly allowed though he came in by wrong, (or colorable title,) is because he anciently paid a fine to the lord.

Buller, in his N. P. 87, remarks on the law as laid down by Lord Coke in Liford’s case, and says, “ It may admit of doubt, for there are cases to the contrary, and the reason of the law seems to be with them.” So far, therefore, from feeling myself bound by Liford’s case as an authority, I am of opinion that the weight of authority is opposed to the decision in that case. And that this is the opinion also of the English courts may be inferred, I think, from their well-known practice in relation to the action for mesne profits consequent to a recovery in ejectment.

It must be remarked however, that this action may be maintained without overruling Liford’s case, or disturbing the doctrine laid down by Lord Coke in relation to the lessees and feoffees of disseisors. The questions now raised for our consideration are, first, whether this doctrine is to be extended to heirs, claiming by descent ; and secondly, if it is, whether it is also to be extended to the heir, feoffee, or lessee of a disseisor, who after action brought for the recovery of possession shall wrongfully withhold it until judgment and execution.

No case has been found in which either of these questions has been decided or considered. They must therefore be determined by those principles and decisions which are most analogous.

Whatever may be the appearance of equity and sound law in the doctrine of Liford’s case, it will vanish when applied to an action for mesne profits against heirs claiming the estate by descent. For m the former case, as the lessee or feoffee pays, or may be presumed to have paid, an equivalent for the rents and profits to the disseisor, if he is held responsible for them to the disseisee also, he may be twice charged ; which can by no possibility happen in respect to heirs. In the one case, the disseisee may have a remedy against the disseisor ; in the other, he has no remedy, and the law is defective, unless he can maintain an action against the heirs.

In my judgment there is much weight in these distinctions. They have an important bearing on most of the arguments made use of by Lord Coke in support of his opinion in Liford’s case. We do not however think it necessary to take them into consideration in deciding this cause, it being the opinion of the majority of the Court, that the defendants W’ould be liable, if they had come into possession as purchasers. Admitting the plaintiff’s right of possession, which has been clearly established, we consider the judgment in the writ of entry conclusive for the plaintiff, as to the mesne profits accruing after the commencement of that action. It ¡g well known, that such is the conclusive effect of a judgment in an action of ejectment. The right to mesne profits is a necessary consequence of a recovery in that form of action. The tenant is concluded by the judgment, and cannot after-wards, in an action for the mesne profits, be permitted to show a better title in bar, or a subsequent recovery by him of the same premises in another action. Adams on Ejectm. 335 ; Aslin v. Parkin, 2 Burr. 667 ; Bac. Abr. Ejectment, H ; Compere v. Hicks, 7 T. R. 723 ; Benson v. Matsdorf, 2 Johns. R. 369.

If then, on the facts appearing in this case, an ejectment could be maintained according to the English practice, it is difficult to assign any good reason why equal justice should not be dispensed in the forms of proceeding practised here. It is true that the demandant may recover in a writ of entry, notwithstanding the tenant’s right of possession, which would be a bar to an action of ejectment. The judgment therefore for possession in a writ of entry is not conclusive, indeed it proves nothing at all, as to the right of possession ; and that right must be shown by the plaintiff in his action for the mesne profits. In every other respect, it appears to me that a judgment in a writ of entry is as conclusive in establishing the plaintiff’s right to the mesne profits, as a judgment in an action of ejectment. That action is altogether a fictitious remedy introduced for the more convenient administration of justice, and would never have been allowed to change materially the important and essential rights of parties, so as to subject a man to damages for which he was not before liable in any form of action. This would have been an unwarrantable use of a legal fiction, giving new rights instead of a new remedy. Unless such was the effect of the introduction of the fictitious action of ejectment, it seems to me that it is incumbent on the defendants to show that the facts proved in this case would have been a bar to an action of ejectment. Lord Kenyon says, that trespass and ejectment stand on the same footing. 7 T. R. 728. Whatever would be a bar to an action for mesne profits after recovery of possession in a real action, ought to be a bar to an action of ejectment.

Having examined the authorities attentively, I have no hefi ration in saying that ejectment may be maintained against the lessee or feoffee of a disseisor, and against his heirs, unless in case of a descent which tolls the entry. Not a case nor a dictum, I apprehend, can be found to the contrary.

The general rule is, that whatever bars the right of entry is a bar to the plaintiff’s title ; as a fine with non-claim, the statute of limitations, a descent cast, &c. Bac. A hr. Ejectment, E ; Adams on Ejectm. 241.

Ejectment being a possessory action, it is sufficient for the plaintiff to prove a possessory title. And generally ■ where there is a right of entry in the plaintiff, no actual entry is required.

But where an entry is necessary to rebut the defendant’s title, an actual entry is requisite, because until such actual entry the plaintiff has not the possessory title ; as in case of fine, which Lord Mansfield says is the only case where the plaintiff, having a right to enter, cannot maintain ejectment until after an actual entry. He says it was so settled in 1703, “by the opinion of all the judges, upon deliberation, and consideration of all the cases, and that so the practice had been ever after.” “ But where the entry is only neces-. sary to complete the landlord’s title, (as where a power to reenter is reserved to him in case of non-payment of rent,) there the confession of lease, entry and ouster is sufficient.” Goodright v. Cator, 2 Doug. 484 ; Oates v. Brydon, 3 Burr. 1897 ; Compere v. Hicks, 7 T. R. 727 ; Jackson v. Crysler, 1 Johns. Cas. 125 ; Adams on Ejectm. 90. But if a tenant for years levies a fine, that being a case not within the statute of fines, no actual entry is necessary ; the estate must be divested by the fine and by force of the statute, to render an actual entry necessary. Adams on Ejectm. 90. An actual entry is not necessary to avoid a fine without proclamations. Theré have been conflicting decisions on this point, but it seems now well settled. Doe v. Watts, 9 East, 19 ; Adams on Ejectm. 90 ; Doe v. Perkins, 3 Maule & Selw, 271.

From these authorities it seems very clear, that this is a case in which an ejectment, according to the practice in England and elsewhere, would well lie. And it is difficult to believe that courts would allow parties to entitle themselves to recover profits after an ejectment, to which they would not otherwise be entitled ; and that this course of practice should have been so long continued without question.

It is supposed by the defendant’s counsel, that the conclusive effect of a judgment in ejectment upon the action for mesne profits is derived from the confession of the tenant, under the common rule, operating by way of estoppel. But this is denied by Lord Mansfield, in the case of Aslin v. Parkin, after a consultation with all the judges, who were unanimously of opinion that there is no distinction between a judgment upon a verdict, and a judgment by default. 2 Burr. 668.

It has also been argued by the defendants’ counsel, that the plaintiff’s entry was tolled by a descent ca»t, and that the defendants had not only the possession, but the right of possession. If this position can be maintained, I admit that the plaintiff has no case. It is impossible that the defendants can be liable in a possessory action, if they had the right of possession. The case of Taylor v. Townsend, cited by the defendants’ counsel, depends on this principle. So also does the case of Cox et al. v. Callender, 9 Mass R. 533, which was argued and decided upon the ground that the plaintiff’s right of entry had been barred previous to the commencement of the writ of entry.

But this objection fails, in the case at bar, by the pro visions of the St. 32 Hen. 8, c. 33, which has been adopted and acted upon here from the earliest times of which we have any recollection or knowledge.

It is hardly necessary to remark upon one position of the defendants’ counsel, because if they could maintain it, it would not avail them. They deny that Thompson, the ancestor, can be considered as a disseisor; but if so, then the plaintiff was not dispossessed, for there is no pretence for saying that Thompson had a lawful possession. It is now, however, too late for either party to deny that Thompson was a disseisor. On this point the judgment in the writ oí entry is conclusive.

From this review of the authorities it appears to me, that there is no legal objection to the plaintiff’s right to recover; and we may allow ourselves to be guided by a sense of justice in our decision, without any apprehension that we shall in so doing infringe the established rules of law. But this right is limited to the profits after the commencement of the writ of entry. The doctrine of relation before referred to, only operates to make out the plaintiff’s possession ; it cannot make the defendants trespassers before their entry. Whether they are liable for the time intervening after entry and before the date of the writ of entry, is in this case so unimportant that it is needless to give an opinion. After the demand of possession, the defendants, by holding on, became wrong-doers. And the plaintiff is not estopped to show this by the writ of entry. He is only estopped to deny that the defendants came into possession by a colorable title, but this is not inconsistent with the allegation that the possession was wrongfully withheld afterwards.

This deforcement or wrongful withholding of the possession is, so far as it respects the present question, equivalent to a disseisin. The plaintiff has been unlawfully deprived of the possession of his land ; and the defendants have received the rents and profits which they have no right to retain. Of this injury the plaintiff complains, and we think both by law and equity he is entitled to an indemnity. The case of Pulteney v. Warren, 6 Ves. 73, was decided on a principle applicable to the present case. In that case the lessor had been delayed from recovering in ejectment by a rule of court and by an injunction, at the instance of the defendant, who ultimately failed both in law and equity. And the court decreed an account of the mesne profits against the defendant’s executors, solely on the ground of the delay caused by the defendant. But for this, a court of equity would not have enforced payment against the executors.

Upon the whole, the weight of authority is in favor of the plaintiff. The general rule is, that the disseisee, after re-entry, shall be considered as in possession from the time of the disseisin, by relation. This case does not come within the exception made in LifonPs case. There was no deforcement in that case, and the reason given for the exception is, that it would be hard to make a man a wrong-doer by relation. An exception of such doubtful authority ought not certainly to be extended for the protection of wrong-doers ; and such we consider the defendants, although they came into possession by a colorable title.

Putnam J.

dissenting. I have the misfortune to differ in opinion from two of my learned brethren, who constitute a majority of the judges remaining upon the bench before whom this cause was argued. *

The question is, whether the plaintiff can maintain his action of trespass quare clausum fregit for mesne profits, from the 16th of November, 1818, when the estate came to the defendants from William Thompson their father by descent, or from the 21st of May, 1819, when the plaintiff purchased his writ of entry in the former suit between these parties, until the time of receiving seisin and possession upon his writ of habere facias possessionem, on the 17th of April, 1821.

The plaintiff, in his writ of entry, declared upon his seisin within 30 years, and alleged that the defendants had no entry but by William Thompson deceased, who unjustly disseised the plaintiff, and from whom the same descended to the defendants. It appears that the plaintiff did not make any entry after the death of William Thompson the father, and that he had no actual possession of the estate after it descended to the defendants, until it was delivered to him upon his writ of possession ; and that the defendants entered after the death of their father and claimed and held the estate by descent from him, until the plaintiff turned them out by his execution. It appears also, that the tenants pleaded that they did not disseise the demandant, and the jury found that they did, and thereupon the demandant had his judgment for seisin and possession of the estate. And the demandant concludes his count by the averment, that the defendants still unjustly withhold the premises from him. These are the material facts ; and m my opinion they are not sufficient to enable the plaintiff to maintain this action.

There is one preliminary objection to be disposed of in this place. It has been argued that the defendants are estopped by the record in the former suit, from showing that they entered by title, and held as heirs of their deceased father and not as disseisors or trespassers, and that the plaintiff had not the possession of the premises, because they pleaded that they did not disseise the demandant, and that issue has been found against them.

That consequence would have followed, if that had been a material issue. But the demandant declared upon a disseisin done to him by William Thompson the father of the tenants, alleging that they had no entry but by the said William Thompson. The estoppel is to be applied, not to the defendants, who were the tenants, but to the plaintiff, who xvas the demandant. His allegation was, that the tenants came into possession by William Thompson who committed the disseisin. That was a material and issuable fact for him to allege and prove ; and it is not competent for him now to deny the fact, that the tenants entered by title. The rule is, “ that when the truth is apparent in the same record, the adverse party shall not be estopped to take advantage thereof.” Bac. Abr. Pleas and Pleadings, I, 11. “ That a matter alleged, that is neither traversable nor material, shall not estop.” Co. Lit. 352 b. A fortiori, I think that a matter traversed, which is not material and which is not alleged, is not to estop. The issue tendered was, that the tenants did not disseise. The demandant had not said that they ever did. They might as well have pleaded that John Doe did not disseise. That would have been just as pertinent and material as the issue which was joined. It was no answer to the declaration. Tb° defendants in this action are therefore not estopped from showing the truth upon the whole record and process upon the writ of entry.

It has been argued by the plaintiff’s counsel, that this course of reasoning has a tendency to introduce too much nicety of pleading in our real actions. But it appears to me that the more definitely the demandant states his claim, the better will the tenant know how to proceed ; whether to defend or give up the estate. It would, for example, seem not too precise for one who claims an interest in real estate, and who undertakes to disprove the title of another who is in possession, to state whether he demanded the possession by reason of his own seisin, or the mere right upon the seisin of an ancestor ; whether the tenant was to be judicially questioned for acts done by himself, or by others under whom the tenant entered. The proceeding in the writ of entry as used here, is not liable to the causes of delay which brought it into disuse in England. It states the claim in few words, and with great precision. If any reasonable care is bestowed upon the declaration, the tenant will be able generally to put in issue a single fact which will determine the controversy, and witnesses will be obliged to attend touching that fact only. Thus much saving of time and money is made. But if one may be permitted to disregard forms, and declare generally, •under the notion of rendering the proceedings at law more simple and expeditious, the party sued will not know the very point of the case; he must therefore prepare himself at all points, and the uncertainty, delay and expenses attending suits would be immensely increased.

But to recur to the main question, can the plaintiff main tain this action ?

It has been contended that the plaintiff might have maintained the action, upon such a state of facts, after a recovery in ejectment in England. If that should be admitted, I do not think it follows that he may do the same here, after a recovery in a writ of entry. I suppose it is true, that m England one who can prove, on the trial of an ejectment, his right to enter upon the premises, may compel the tenant to confess lease, entry and ouster. That I believe is the law there, in every case, excepting where the plaintiff seeks +o avoid the effect of a fine with proclamations, in such case a man cannot recover for mesne profits which accrued before his actual entry, notwithstanding his right accrued before. Compere v. Hicks, 7 T. R. 728. But by entering into the rule to confess the lease, entry and ouster, the defendant is estopped both as to the lessor and lessee, so that either may maintain trespass without proving an actual entry. Bull. N. P. 87.

We, however, have no right to compel a tenant to confess, in a writ of entry, the facts which are material and to be proved by the demandant. None of the fictions which have been applied to the English ejectment have been adopted in our real actions. Where an entry is to be proved by the demandant in a writ of entry, he must prove it by competent testimony. He cannot compel the tenant to confess it. The tenant has a right to wait until the fact has been established. It is not sufficient that the party had a right to enter, unless he exercise it. This is too clear to need illustration. If this were a common action of trespass quare clausum fregit for cutting a tree, &c., nobody would contend that the plaintiff could recover unless he prove that he had the possession of the locus in quo &c., and that the defendant committed the wrong. Proving only a right to the possession would not avail. A man who has the freehold in law, if he has not the actual possession, cannot have an action of trespass. The heir shall not have trespass against an abator before he has entered. 2 Roll. Abr. 553, tit. Tresp. S, pl. 1 and 2; Finch’s Law, 199, c. 7. “ A man made a lease for six years, the term expired and the lessee kept himself in after the term and took the profits, and the lessor, before any entry, brought an action of trespass for the trespass mesne done, viz. after the term ended and before the action brought; and the opinion of the justices was, that the action of trespass did not lie, for although the lessor might enter, yet before entry the possession was not in him.” Browning v. Beston, Plowd. 133.

I concede that the plaintiff, in the case at bar, might have entered upon the defendants, notwithstanding the estate was cast upon them by descent from their father, for the father had not peaceable possession for five years next after his disseisin, and the St. 32 Hen. 8, c. 33, having been adopted here, the plaintiff’s right of entry was not taken away by the descent. But he never did enter in fact, and in my opinion he is not entitled to treat the defendants as trespassers, as he might have done for the time to come, after he had entered upon them.

It has been contended however, that the entry of tho plaintiff, when the sheriff delivered seisin to him on the writ of possession, shall have relation back to the time when the plaintiff’s title accrued, or at least to the time when he brought his action, so as to enable the plaintiff to recover against all as trespassers, who came in under William-Thompson, the disseisor, by title. And unless the plaintiff can support that position, he cannot recover. He must apply a legal fiction to work a wrong, which is contrary to the maxim, in jictione juris semper est ceguitas. I say to work a wrong, for the defendants had not only a possession, but an apparent right of possession, during all that time. The estate came to them in a regular course of descent, and we have seen that no action of trespass could have been maintained against them during all that time, unless by this legal fiction they are by relation to be made tortfeasors. Whatever wrong their ancestor had done to the plaintiff, the defendants knew that they had not done wrong. The estate came to them by operation of law, and it seems to me that the law will not make them trespassers for occupying what, is cast upon them. I admit that the disseisee, who enters upon his disseisor, may justly apply this doctrine to him and his servants for all the time after the disseisin. He has done the wrong. But I deny the application to those who come in by title by or from the disseisor ; as by descent, devise, lease or feoffment. They have not done wrong. I deny that their lawful entry and apparent right of possession is by mere fiction to be made tortious.

The authority relied upon by the plaintiff to support this doctrine of relation, is the case of Holcomb v. Rawlyns, reported in Moore, 461, and Cro. Eliz. 540. In Moore it is stated, that all the justices agreed, upon argument, that if a disseisor make a lease for years, and afterwards the disseisee re-enter, the disseisee by his re-entry may punish the lessee per trespass for mesne profits during his occupation, altnough he was in by title, but before his re-entry he shall not punish him. And there is no difference whether he that enters mean after the disseisin enters by wrong or by title. And that was the opinion upon consideration of all the books, viz. 33 H. 6 ; 2 Edw. 4 ; 34 H. 6 ; 13 H. 7. This report of Moore is ncorrect as to the fact that all the justices agreed, for Croke, (ubi sup.) states that the court were divided, Pop-ham, Gawdy and Fenner for the plaintiff, and Clench e contra for the defendant strenuously contending that the tort was not done by him who comes in by title, &c.

The only case that I have found which supports the decision of Holcomb v. Rawlyns, is 33 H. 6, 46, pl. 30. It is there stated, that by some of the justices and serjeants it was held, in a writ of trespass, that if one be disseised, and the disseisor alien to a stranger who enters, in this case the lisseisee may have a writ of trespass and recover damages for all the mesne trespass, as well against the disseisor as against the others who come in by title, viz. by feoffment; 50 ny divers writs each shall be charged of his own time, &c. But it will be seen that the judges, notwithstanding this decision, were continually expressing opinions to the contrary, in a short time after it was made. Thus in 34 H. 6, 30, cited in Holcomb v. Rawlyns, Prisot (who was C. J. of C- B.) gives his opinion, that when one comes in by feoffment of the disseisor, and afterwards the disseisee enters, he shall never be charged in a writ of trespass. This case is abridged in Bro. tit. Tresp. 35, where it is said, “ Nota per optimum opinionem, that if a man disseise me and make a feoffment and I re-enter, I shall not have trespass against the feoffee, for he is in by title and not as a trespasser to me. So in 37 H. 6, 35, pl. 22, it was held by Fortescue and Danby, mat u if I am disseised, and the disseisor makes a feoffment to one who cuts the trees or takes the grass, and afterwards 1 re-enter, I shall punish him by writ of trespass, and so of twenty alienees. Nota, Littleton and Spilman said they had always held the contrary, and that a writ of trespass lies oniv against the disseisor and not against his feoffee, but the disseisee recovers for all the time ; quod Pole concessit and said, that it seemed that this was the reason of the common law; for in an assize the damages were never given against the feoffee, but always against the disseisor, until the statute of Gloucester.” So in 2 Ed. 4, 18, pl. 12, there seems to have been a great diversity of opinion upon this matter. “ Littleton. If after a disseisin a stranger makes trespass upon the soil, I may have trespass against the disseisor and the stranger also. Laicon. Not against the stranger, but the dis seisor, for they were not parties to the first wrong. Choke. You say true. Danby. No, it seems to me that after the disseisee hath re-entered, he shall have his action against the first disseisor and against the others also, as Littleton says , hut if he brought his action against the disseisor only, still he shall recover damages for the trespass done upon the disseisor by strangers, and when he hath recovered, the disseisor shall have his remedy over against them.” In this questionable state the law continued, until it was revised, considered and settled in 13 H. 7, 15, pl. 11. It is there said by all the judges, except Wood and Vavisor, that “by the common law, he who was in by title should not be punished; for if the heir of the disseisor had lands by descent, no damages should be recovered against him; no more where he was in by feoffment. And therefore the statute of Gloucester was made, that each should answer for his own time. The same law where the disseisor sells the trees, and the vendee cuts and carries them away.” “ But against a feoffee the disseisee shall not recover damages, for two reasons ; one, that be is in by title ; and the other, that the trespass was not done by him but by the first disseisor. In this case as abridged in Bro. Tresp. pl. 436, is this remark : — “ Nota by all the justices except Wood and Vavisor, if a man disseise me and enfeoff another, and I re-enter, I shall not have an action of trespass against the feoffee.”

We have examined the books cited for the opinion of the majority of the court in Holcomb v. Rawlyns, and the result is very satisfactory to my mind, that the case of 33 H. 6, was questioned until it was overruled by 13 H. 7, 15. No reasons are given in the former case, but good reasons are given in the latter. I do not hesitate to say that the weight of authority was clearly against the decision in Holcomb v. Rawlyns, which case makes so great a figure in the digests. I am aware that Mr. Justice Buller in his Law of N. P. 87, says there are cases to the contrary, citing Cro. Eliz. 540 and Mo. 461, and “ that the reason of the law seems with them.” It would have been more correct to have said, as Bacon does, tit. Trespass, G, that it has been holden in one case, that trespass would lie against one who comes in by title, but that the contrary seems to be the better opinion. It does not appear that Mr. Justice Buller examined this point particularly ; and Lord Chief Baron Gilbert, in his Tenures, p. 47, although disposed to acquiesce in the decision of Holcomb v. Rawlyns, adds the remark, that “ it seems not to be doubted that the old laio was otherwise.”

The law upon this subject is thus stated afterwards in Liford's case, 11 Co. 51, by Lord Coke. “If one disseises me, and during the disseisin he cuts down the trees &c. growing upon the land and afterwards I re-enter, I shall have an action of trespass against him vi et armis for the trees, &c., for after my regress, the law, as to the disseisor and his servants, supposes the freehold always continued in me ; but if my disseisor makes a feoffment in fee, &c., and afterwards I re-enter, I shall not have trespass vi et armis against those who came in by title ; for this fiction of law, that the freehold continued always in me, shall not have relation to make him, who comes in by title, a wrongdoer vi et armis, but in such case I shall recover all the mean profits against my disseisor, in the same manner as the disseisee in such cases should recover in an assise at the common law, before the statute of Gloucester, c. 1, damages only against the disseisor.” And the same law is to be applied where the first disseisor is disseised by a second. No action of trespass vi et armis lies against the second disseisor before entry upon him, for he is answerable to the first disseisor; “ and therefore I shall recover all the mesne profits against my disseisor, his servants and others who have committed the trespass by his command, and in his right.” Vid. Bro. Abr. tit. Tresp. pl. 35, S. P. Lord Rolle, (2 Abr. 554, Tresp. T, pl. 8,) digests the case of Holcomb v. Rawlyns, but he cites Liford's case and the case of 13 H. 7, 15, to the contrary The doctrine contended for is therefore maintained only by the case of 33 H. 6, (which was often afterwards questioned and finally overruled in 13 H. 7,) and by the divided opinion in Holcomb v. Rawlyns, which was overruled in Liford’s case.

But the case in Keilway, 1, pl. 2, which was in 12 H. 7, (if the decision in 13 H. 7, had not taken place,) is a full authority for the opinion of Lord Coke. This case is exceedingly important and applicable to that now under consideration. It was trespass. The defendant said, that the freehold in the locus in quo &c, was in Lord Brooke, and that the defendant by his command entered. The plaintiff replied, that he himself was seised until J. S. disseised him, which J. 8. enfeoffed Lord Brooke, upon whom the plaintiff reentered ; to which the defendant said, that J. S. did not disseise the plaintiff; .and the jury found that he did. And it was objected that the plaintiff could not have judgment, for the issue taken was a jeofaile, for that it appeared by the plaintiff’s own acknowledgment, that Lord Brooke came in by title, viz. by feoffment, and therefore by no way could be a trespasser to the plaintiff. And the opinion of the whole court was, that the plaintiff should not have judgment, for that the issue taken was a jeofaile. They state the law to be, that where one is disseised and afterwards re-enters, he shall recover against the disseisor for all the acts of the disseisor and his servants, but not against those who come in by title, or as disseisors of the first disseisor. They say that Lord Brooke came in by feoffment, which made a lawful entry and not a disseisin.

The only difference between that case and the case at bar is, that Lord Brooke came in by feoffment, but the defendants came in by descent ; which we have seen, in the case of 13 H. 7, is not material. In the case in Keilway there was an immaterial issue, as well as in the case at bar, and the court there held the plaintiff to be bound by his own showing that Lord Brooke came in by title, and I think the Court here ought to hold the plaintiff bound by his declaration that the defendants came' in by title.

The case of Symonds v. Symonds, (3 Car. C. B.) Hetl. 66, stated in Vin. Abr. Trespass, R, 4, pl. 5, as ruled by all the justices, is exactly in accordance with Lord Coke’s opin‘cn, that trespass will not lie against the feoffee or lessee of the disseisor, because they come in by title. If the law were as the plaintiff contends, what necessity, was there for the statute of Gloucester ? It will be recollected, that at the common law damages were recoverable in the assise .of novel disseisin, (2 Inst. 284,) but they were never given against the feoffee, or those who came in by title, but only against the disseisor, until that statute, which was passed in 6 Ed. 1, providing, “ that if disseisors do alien the lands, and have not whereof there may be damages levied, that they to whose hands such tenements shall come, shall be charged with' the damages, so that every one shall answer for his own time.” If by the principles of the common law each was answerable for his own time to the disseisee, notwithstanding he came in by title, those principles might have been applied to the writ of assise of novel disseisin without the aid of the statute. The statute of Gloucester has not been adopted here. But if it had been, the remedy did not extend to an action of trespass., which is as it was before the making of that statute. Keilw. 1, pl. 2. The assise of novel disseisin has not been adopted in this commonwealth, and damages have never been recovered in any possessory action here.

If the doctrine in Holcomb v. Rawlyns is to be supported, it seems to me that the plaintiff would be entitled to recover, not merely from the time when he commenced his writ of entry, but from the time when the defendants entered after the death of their father. If the law of that case is to govern, the plaintiff is entitled to the full benefit of it. I know of no right which we have to adopt it in part only. That would seem to me rather a legislative than a judicial act. If the defendants were disseisors and trespassers at all, they were so, just as much before the service of the writ of entry as after-wards. In Vin. Abr. Tresp. R, 4, pl. 2, it is said, “ If a man disseises me and makes a feoffment, and I re-enter, I shall not have trespass against the feoffee ; for he is in by title, and no trespasser to me, by the best opinion.” And Liford’s case has been recognised as good law by us in Fletcher v. M'Farlane, 12 Mass. R. 46, where the Chief Justice saj s, “ If the rector and wardens have any action of trespass for the mesne profits, it is only against Pelham who kept them out. For as the plaintiffs entered by virtue of the indenture of lease, and the defendant by virtue of an assignment of that indenture, neither of them can be considered as trespassers.” The same doctrine has been held in New York, in Case v. De Goes, 3 Caines’s R. 262, by Thompson J., who delivered the opinion of the court, that those who came in by title from the disseisor cannot be made trespassers by relation.

It has been said, that there is no reason why the rule in the case of a feoffee or lessee should apply to an heir, who does not come in as a purchaser. I answer that the judges in 13 H. 7, before cited, held the rule to apply as well to the heir, as to the feoffee. It is equally true as to both, that they come to the estate by title, and not by trespass or disseisin. The heirs have done no wrong, any more than the feoffees or lessees. In the one case the estate has been distributed according to the law of descents, in the other, a valuable compensation has been made ; but they all stand upon their titles, and all alike deny that they are occupying as trespassers.

But to look one moment at the equity of the case. Suppose that A disseised B nineteen years ago, and died seised in one month after, and that the estate descended to his children, who entered and have held it ever since, taking the profits, dividing it among them, or assigning it as a portion to one of the children ; and suppose the heir in possession now to he sued for the possession. Is it reasonable that the claim now for the first time made, shall, if established at this late day, operate so as to make the heirs trespassers ab initio ? They came to the estate lawfully ; they grounded their manner of living upon the rents and profits of the land which had descended to them. In my view it would be alike inequitable and unwarrantable so to charge them. Suppose the heirs, after such a possession of nineteen years by title of descent, should sell a tree standing, and the vendee should, according to the bargain, cut and carry it away and pay for it; is it reasonable that the vendee should be pursued as a trespasser, and that too by a fiction ?

There is no necessity for adopting a rule so pregnant with injustice, excusing the negligence of one party and visiting upon another the punishment for the wrongs committed by a third. The law has provided an ample remedy for those who have a right of entry, if they will use it. If they will not avail themselves of the remedies provided, it is in vain to come here and complain of injustice.

It has been contended, however, that the defendants are, in the writ of entry, said unjustly to withhold the possession, and so are deforciants, and that they should have given up the possession upon being served with the writ, and so they were trespassers ab initio, for holding over afterwards.

This argument could not have been advanced, if the declaration had been accurately drawn. It is true that the allegation, “ and whereof he complains that the aforesaid A unjustly deforceth him,” is not to be in any writ of entry, excepting that which is in the post. Reg. 228 ; F. N. B. 201. Now if that which is introduced in this case, viz. that the tenants “ unjustly withhold the premises from the demandant,” is equivalent to an alleged deforcement, it does not follow that the count imputes to the tenants any original tortious entry.

Wherever a man “ holdeth land whereunto another man hath right, be it by descent or purchase, he is said to be a deforceor.” Co. Lit. 277 ; 3 Bl. Comm. 172. It comprehends the case of a disseisin, as well as where one comes to the land by any lawful means. A tenant in a writ of right, as well as a tenant in a writ of entry, may in law be considered a deforciant. This circumstance has not the slightest bearing upon the case under consideration. The averment, such as it is, ought not to be construed to mean that the tenants themselves disseised, for that is expressly denied before. In truth, this allegation has no proper place in this writ, and should be rejected as senseless, or as surplusage.

And there seems to be some reason for the distinction. For where the disseisin or intrusion was made by the tenant himself, it was requisite to allege the fact. So if he was in as alienee, or as heir of the disseisor, it was requisite to state the facts precisely, in order to disprove the title of the tenant. That could be reasonably required, when not more than two alienations or degrees had passed ; and when that was done, there was no necessity to complain of' a deforcement. But where more than two degrees had passed, where

the tenant, as Finch says, p. 262, was “ out of all degrees, as by abatement, disseisin, escheat, recovery, election, succession, dower, judgment, &c., or as the third or more feoffee,” and the remedy, as given by the statute of Marlebridge, c. 30, (2 Inst. 153,) was by the writ of entry in the post, the demandant was not supposed to know, or certainly was not required to state, all the intermediate wrongs particularly. It became necessary then for the demandant to count in the most comprehensive manner. He therefore complained of a “ deforcement,” which is “ nomen generalissimum,'>'> and thereby he included every species of wrong that could be imagined to have happened after the original disseisin, although not particularly and technically described, as we have seen was requisite when the tenant was within the degrees. The misplaced complaint of .a deforcement in the conclusion of the count, no more proves that the tenant held under such circumstances as to be liable in trespass for mesne profits, than another inaccuracy in the beginning, viz. in calling the defendants to answer in a plea of ejectment, instead of a plea of land, proves the writ in that suit to have been a proper ejectment, and not a writ of entry. But the Court will look upon the whole declaration, and from that it appears that the defendants were not called upon to answer for any disseisin which they had done, but for a supposed wrong which their father had done to the plaintiff. The defendants might have pleaded that their father did not disseise, or that they did not enter under him. If either of those issues had been found against them, they would have lost the possession, and that would have been the extent of their loss. If the plaintiff had been desirous of proceeding against the defendants as trespassers, he should have elected his remedy accordingly. He might have entered upon them and claimed the possession. Shall he now be allowed to stand upon the same footing as he would, if he had entered in fact ? If his right of entry had been gone, it is not contended that he could have maintained this action. What is the difference between having a right and waiving it, and having no right, as it regards the defendants ? If the plaintiff had entered, the defendants would have surrendered the possession, or have defended at the risk of being considered as trespassers afterwards. The plaintiff might have then declared in a writ of entry upon his own seisin against the tenants as disseisors. A proper issue would have been joined, and if found for the plaintiff, the defendants would have been justly concluded. But to allow the same rights and advantages in this action, as the plaintiff might have obtained, if he had elected another course of proceeding better adapted to his case, seems to lead to the confounding of remedies, if not to the removing of landmarks.

One word more as to the effect of the evidence arising from the record of the former suit. The demandant declares upon his own seisin within thirty years, and a disseisin since that time by the father of the tenants. Non constat by the declaration, that the disseisin was not more than twenty years before the action ; in which case it is not pretended" that this action of trespass could have been maintained even by fiction. There is nothing conclusive against the defendants in that record upon that point.

I will recapitulate very briefly. This is an action of tres pass quare clausum, &c. The plaintiff must prove that the defendants were trespassers upon his actual or constructive possession. No evidence of those facts is offered, excepting the record and execution between these parties in the former suit upon a writ of entry. But in that the plaintiff acknowledges that the defendants entered by title and not as trespassers. The defendants are not estopped from showing the truth, because the issue taken was upon a fact not alleged by the plaintiff and wholly immaterial. The defendants never have confessed that the plaintiff entered upon them and that they ousted him, and no such event ever did happen. The truth is, that the plaintiff never had the actual possession from the time when the estate descended to the defendants, until he entered by his writ of possession, and the defendants nevei had it one moment afterwards. And if it be true that in England a plaintiff in ejectment might have compelled the defendants to have confessed lease, entry and ouster, and so might have recovered, it is sufficient to say that the plaintiff has not brought ejectment, but a writ of entry, which has none of the fictions belonging to an ejectment. There was then no actual possession by the plaintiff, nor trespass by the defendants. Are the defendants to be made guilty by relation and fiction ? That depends upon reviving the case of Holcomb v. Rawlyns, which was clearly against the law as settled at the time, and has been repeatedly overruled. That case being removed, there is nothing remaining whereon the doctrine contended for by the plaintiff can'rest.

I deliver my opinion therefore, that the judgment should be for the defendants, with a strong conviction of its correctness, but with the most perfect respect for my learned brethren whose enlightened minds have guided them to a different conclusion.

Judgment according to the verdict. 
      
       See Brown v. Galloway, 1 Peters’s C. C. R. 291.
     
      
       See Stearns on Real Actions (2d ed.) 367 and note; Green v. Biddle, 8 Wheat. 1.
      Assumpsit will not lie for use and occupation against a bond fide purchaser for a valuable consideration, from the heirs of a disseisor, after a descent cast, and without notice of the disseisin. Wharton v. Fitzgerald, 3 Dallas, 503. See Butler v. Cowles, 4 Ohio R. 203.
     
      
       Mr. Justice Lincoln, not having heard the argument nor the discussion oí the case, gave no opinion.
     
      
       See Stearns on Real Actions (2d ed.), 369, note.
     