
    
      Britton vs. Moody.
    
    trespass.
    •Error to the Knox Circuit; Joseph Eve, Judge.
    
      Trespass, quare clausum, fregit. Landlord and Tenant. Possession.
    
    April 9.
    L“dlciri1 . tain trespass 9mrf clausum was in the actual possossion of the locus in quo, at the time of líop^rsojmúif one in the’actuat posses-at the lime of the trespass, can maii'tain trespass guare claurumfregii.
    
    Owsley, for plaintiff.
   Chief Justice Robertson

delivered the opinion of the court.

Moody recovered a judgment for damages against Britton, in an action of trespass quare clausum fregit. As tire testimony proved that Britton was in the actual possession of the loci# in quo, as a tenant of Moody, at the date of the alleged treapffss, his counsel moved ior a nonsuit, and afterwards for a new trial, which the court overruled.

i,, . . The court ought to have sustained the motion lor a nonsuit. No person, but one in the actual possession, can maintain trespass quare. clausum fregit. No doctrine of the law is more clearly or more firmly settled than this. As Moody owned the reversion, his remedy was “ case.” lor waste, or for special damage, to the me.rsion. There can have been no trespass on his possession. 1

Judgment reversed, and cause remanded for a new Í rifil.  