
    John N. Davis vs. Clancy & Johnson.
    To maintain tresspass quare clausum fregil, the plaintiff must have either an actual or constructive possession.
    A constructive possession is sufficient, where the defendant is not in the actual possession.
    Where the laud is leased, the landlord cannot bring the action; the tenant must.
    But where a person is only put into the possession of land to prevent the trespasses of others, his possession is the possession of the landlord, who maymaintain his action of quare clausum fregil, notwithstanding such an agent may he allowed to cultivate a part of the land for himself.
    The part of the land so cultivated by the agent or tenant may be considered as in his exclusive possession, and the rest in the possession of the landlord.
    The following was the report ofjudge Gantt, who tried the case.
    “ This was an action of trespass vi. et ar. for taking some plank. The plaintiff had never been in possession of the house, from the loft of which the loose plank was taken, unless indeed by his tenant.
    The jury found for the defendant, on the following tegs titnony.
    
      Seth Killeiar, proved that he heard Clancy say that •he took the plank from a house which plaintiff purchased of Capps; heard Johnson say that he had sold the plank to 'Clancy.
    Clubb; the plaintiff’s tenant was. living on the land at the time the plank was taken, and forbid Clancy from taking ■the plank. About three parts of the plank in the loft was taken out.
    Cross examined, says: That Clubb, lived three hundred yards from the house from which the plank was taken, and in a different enclosure. The boards were loose and ■ Johnson had been living there.' 'Í his witness proved the execution of a deed from Capps to plaintiff, of certain land.
    Sessions proved that he made a survey of the land and that the house where Franklin lived was within the lines claimed by Davis.
    Eelleiar was again called, and said, that Johnson lived in the house where Franklin did, and was tenant to Davis. He {'Johnson) sold the plank to Clancy just before -he moved off.
    I charged the jury that this was a possessory action, and such as could not be maintained by him in reversion. That the law gave a.remedy by action on the case for waste to the reversioner, but that taking loose plank from a loft was not such an injury as would amount to waste and authorize the reversioner to bring an action; and that if it should amount to waste, still tresspass vi et armis was not .the appropriate remedy. That the action of tresspass vi et armis might be maintained by the tenant in possession, but not by the reversioner. Whether the tenant had a title or not I did not •think material. The plaintiff proved that Clubb was his tenant; and if any one had a right to the action, it was Clubb, >the tenant.
    Either, Clubb was tenant to Davis, or he was not; if tenant, the right of action was in him; if not, them the plaintiff had neither an actual or constructive possession, and consequently could not maintain the action of tresspass.”
    The plaintiff moved to set aside this verdict, on the ground, that his honour had charged the jury erroneously.
   Nott, J.

It appears from the declaration, that this was an action of tresspass quare clausum jregit., for breaking and entering the plaintiff’s close, and taking plank from his house, !kc. This is a possessory action, and the plaintiff must have either an actual or constructive possession to enable him to maintain it. When the defendant is not in the actual possession, a constructive possession on the part of the plaintiff is sufficient. The possession is presumed to be in him who has the right. Johnson, one of the defendants, occupied this land as the tenant Of the plaintiff the year before this action was brought. That was sufficient evidence, both of title and possession, to enable the plaintiff to maintain the action. -But it is contended that the plaintiff had leased the land to Clubb, and had therefore parted with the possession; and that the tresspass if any was committed upon Clubb, and not upon the plaintiff, and that the action should have been bro’t by him. And that seems to have been the opinion of the presiding judge. A question has been raised in the course of the argument, whether the decisions of our courts have not altered the English law upon that subject. It is said to have been decided in this state, that the possession by a tenant is the possession of the landlord, and that he may maintain an action of tresspass notwithstanding the premises may have been leased to another. But 1 am not aware of any decision of our courts at variance with the decisions of the English courts in that respect. There is a species of tenantry in this country which is very unusual if not altogether unknown ip England. It is not unusual for persons owning tracts of unoccupied lands, to place agents on the lands ibt the purpose of holding possession for them, and to protect the lands from depredation. Such a tenantry is not considered as conveying any right to the tenant: Such a possession is considered the possession of the lan dlord and not of the tenant, notwithstanding he may be allowed the privilege of cultivating a part of the land for his own use. The part thus occupied by the tenant, may be considered as in his exclusive possession, and no more. And ! apprehend that under similar circumstances, such would be the decision in England. In the present case, the nature of the tenantry of Clubb does not appear. Whether the land was actually leased to him,’and if it were, whether it embraced the whole tract, or only the field which he occupied does not appear. It would appear to me that he could not have any claim to the house where the trespass was committed, for he was called upon ms a witness, and no ' question was made as to his interest in the case. There was. no evidence therefore of the plaintiff’s divestiture of possession so as to deprive him ofa right of action. With regard to the evidence 1 shall express no opinion, because the instructions of the court to the jury on the law precluded all inquiry into the facts. I am of opinion a new trial ought to be granted.

Miller, for the motion.

Haynesworth, contra.  