Mellor and Hayes shewed cause in last Term (January 23 and 25). The plaintiff is entitled to maintain this action. First, his father having been in possession until he was dispossessed by the seizure of the lord quousque, when the fine was tendered, and the steward refused to admit the plaintiff, the possession reverted to him. A customary heir is a complete tenant before admittance, and may, therefore, enter and take the profits and maintain trespass or ejectment, without having been admitted, though he is not entitled to be sworn on the homage: 1 Scriven on Copyholds, p. 290, 4th edit.; 1 Watkins on Copyholds, 244. The tender of the fine and refusal by the steward was equivalent to admittance, and rendered the subsequent possession of the lord unlawful: Arnold v. George (a). In 1 Scriven on Copyholds, p. 290, 4th edit., it is said, "It would seem that a customary heir, who is refused admittance, will be ter-tenant against the lord, though the lord lose his fine: Austin v. Osborn (b). So, also, will the widow of a copyholder, where admittance to freebench is requisite by the custom, and she has challenged her right to admittance: Jurden v. Stone (c). In Doe d. Burrell v. Bellamy (d), a customary heir, who had been refused admittance, recovered in ejectment against the lord, who had seized quousque. [Parke, B.-No doubt the tender and refusal put an end to the lord's possession, but did it put the heir into actual or constructive posses under the 137th section of "The Common Law Procedure Act." The attornies, however, not being aware of his death, had delivered their pleadings as if he were alive, and issue was joined before the suggestion was entered. The defendant traversed the suggestion, and objected at the trial, that it appeared by the record that the suit had abated, whereupon the learned Judge amended the suggestion by altering its date. The rule nisi was also to 1855. BARNETT บ. EARL OF GUILDFORD. 1855. BARNETT V. EARL OF sion, so as to enable him to maintain trespass? Martin, B. -On the termination of a lease, the landlord cannot maintain trespass before entry.] This is not the case of a tenant GUILDFORD. holding over after the expiration of his term, but that of a person retaining possession by an abuse of the authority given him by law, whereby he became a trespasser ab initio : The Six Carpenters' case (a). In Butcher v. Butcher (b), Lord Tenterden, C. J., says, "If he who has the right to land enters and takes possession, he may maintain trespass." [Parke, B.-The entry on the death of the ancestor was done away with by the lord's seizure quousque; and it is clear, that an heir at law cannot maintain trespass before entry.]Secondly, the admission of the plaintiff had relation back, so as to enable him to maintain this action in respect of the prior trespasses. There is no precise authority in point; but the old doctrine with respect to disseisin bears some analogy to this case. In Roll. Abr. "Trespas" (S.), pl. 3, 4, 5, it is said, "Si home soit disseise il poet aver brief de trespas pur le trespas fait en le disseisin, sans reentrie, car il mesme fuit seisie al temps del disseisin, que est sufficient possession a maintainer l'action: 19 Hen. 6. 28 b. touts agree. Mes si home soit disseise il navera brief de trespas pur ascun trespas fait per le disseisor devant reentrie, pur ceo que donque le franktenement fuit en le disseisor, et nemy en le disseisee: 19 Hen. 6 28 b. Sic il ne poet aver trespas. trespas fait pur luy puis le vers ascun estranger pur ascun Again in "Trespas per Relasaid, "Si home soit disseise, al temps: 19 Hen. 6. 28 b." (a) 8 Rep. 146. (b) 7 B. & C. 399. fait puis le disseisin: 19 Hen. 6. 28 b. Come si B. disseise A., et C. disseise B., et puis A. reenter, il avera trespas vers C. pur son primer entrie, car il ad per cest reentrie reduce le possession a luy ab initio: H. 39 El. B. R., agree enter Holcombe et Rawlings. Contra Co. 11, Liford, 51. Issint si un disseisor leas pur anns ou vie ou done en tayie ou enfeff al B. sur que le disseisee reenter, il avera trespas vers le lessee pur son primer entrie, coment que il vient eins per title, pur ceo que per relation le disseisee ad estre touts temps seisse del terre: H. 39 El. B. R. enter Holcombe et Rawlings adjudge sur demurrer. Contra Co. 11, Lyford 51; Contra 13 H. 7. 15 b., 16." Therefore, in the case of disseisin, although the possessory right was divested, yet, if the disseisee entered, his entry had relation back to his actual title, so as to enable him to recover in respect of trespasses committed before his entry. It may be said, that the case of disseisin does not apply here, because a disseisin is an ouster from the freehold, and here the freehold is in the lord, but the same principle prevails in actions for mesne profits after a recovery in ejectment. The judgment in ejectment is an estoppel, as against the tenant in possession, from the day of the demise in the declaration: Doe d. Wright (a), Doe v. Wellsman (b), Wilkinson v. Kirby (c); but, if the plaintiff seeks to recover for the antecedent profits, he must prove his title and the execution of the writ of possession: Buller's Nisi Prius, 87 b, Aslin v. Parkin (d); or an actual entry, which is equivalent to it: Calvart v. Horsfall (e). That can only be on the ground that the entry relates back to the actual title. [Martin, B.—In Starkie on Evidence, vol. 2, p. 435, 3rd edit., it is said, "It seems to have been considered to be doubtful whether the plaintiff can recover any profits anterior to the time 1855. BARNETT V. EARL OF GUILDFORD. 1855. BARNETT v. EARL OF of actual entry, or whether a subsequent entry will not have relation to the time when the title accrued. As, however, trespass lies to recover mesne profits antecedent to the GUILDFORD. demise from the tenant in possession on his confession of the plaintiff's entry, it seems, upon the same ground, that an actual entry would have a similar relation."] Also, in Adams on Ejectment, p. 342, 4th edit., it is said, “When the plaintiff seeks to recover the mesne profits accruing antecedently to the day of the demise in the declaration in ejectment, he must produce the regular proof of his title or right to the possession of the premises, and the judgment in ejectment is not admissible in evidence for him. He must also, it appears, in such case prove an entry upon the lands, though some doubt seems to exist as to what proof of entry will be sufficient." [Parke, B.-It is laid down by Lord Coke, that "acts, without words, may make an entry, but words, without an act (viz. entry into the land, &c.), cannot make an entry:" Co. Litt. 245. b.] As to what act amounts to an entry was considered in Doe d. Griffith v. Pritchard (a). There is no reason for proving possession under the judgment in ejectment, except that it operates by way of relation to the actual title. So, in this case, the same relation ought to exist as against a wrongdoer. Macaulay and Field in support of the rule.-First, a customary heir cannot maintain trespass before entry on the land. Here there was no sufficient entry. To constitute an entry, there should have been a formal demand of possession by the plaintiff's father on behalf of his son. [Parke, B., referred to Plowden, 92, and Co. Litt. 253. b.]— Secondly, the admission of the plaintiff did not relate back to his actual title so as to entitle him to maintain trespass for the intermediate wrong. The doctrine contended for by the other side amounts to this, that, though the heir (a) 5 B. & Ad. 765. made no entry for five years, he might nevertheless recover the mesne profits. [Parke, B.-In Com. Dig. "Trespass," (B. 3), it is said, "So if the heir enters upon an abator, he shall not have trespass against him for the wrong before: 2 Rol. 554, L. 17. So, a disseisee shall not have trespass against a disseisor for the continuance in possession before his re-entry, except when his estate is determined so that he cannot re-enter: 2 Rol. 550, 17; 553, l. 52."] The doctrine with respect to disseisin affords no analogy to this case. According to the passages cited from Rolle's Abridgment, a disseisee might maintain trespass for the act of disseisin, without entry, because he was seised at the time of his disseisin; but, in order to support an action for the mesne profits, he must enter, and then his entry relates back to his original possession. The same doctrine was laid down in Holcomb v. Rawlyns (a), where it is said, "By the re-entry of the disseisee he is remitted to his first possession, and as if he never had been out of possession, and then all who occupied in the meantime, by what title soever they came in, shall answer unto him for their time." It is clear, however, from Liford's case (b), that the re-entry does not relate back so as to make persons who came in by lawful title from the disseisor trespassers. There the Chief Justice said, "If one disseises me, and during the disseisin he cuts down the trees, or grass, or the corn growing upon the land, and afterwards I re-enter, I shall have an action of trespass against him vi et armis for the trees, grass, corn, &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, gift in tail, lease for life or years, &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 the law, that the freehold always continued in me, shall not have relation to make him, who (a) Cro. Eliz. 540. (b) 11 Rep. 46 a, 51 a. |