in 1 R. C. 1819, p. 462, 3, § 1, 2, 3, 4, 5, 6, 7, under which it was decided, 1, that if husband and wife brought an action of waste upon a lease made of her land by her guardian, the plaintiffs, to maintain their action, must establish the validity of the lease, Ross v. Gill & wife, 4 Call 250; and 2, that if the wife had an estate in fee simple, and the husband and wife being seized in her right, he conveyed his life estate, his alienee is subject like any other tenant for life to an action of waste; and the action may be brought in the name of husband and wife. Dejarnatte v. Allen & wife, 5 Grat. 514. With this accords Bals & wife v. Perley, 1 Greenl. 6, cited

in 2 Kent's Com. 131.

3. Changes made by the Code of Virginia.

In lieu of the acts in 1 R. C. 1819, p. 462, 3, § 1, 2, 3, 4, 5, 6, 7, and p. 358, § 21, the revisors of the Code of Virginia proposed the following as chapter 137 of the Code:

§ 1. If any tenant of land commit any waste thereon, or after he has aliened it, while he remain in possession, unless by special license in writing so to do, he shall be liable to any party injured for the damages sustained by him.

§ 2. If a tenant in common, joint tenant or parcener, commit waste, he shall be liable to his cotenants, jointly or severally, for damages. § 3. If a guardian commit waste of the estate of his ward, he shall be liable to the ward, at the expiration of his guardianship, for damages.

§ 4. An heir may recover damages for waste done in the lifetime of

his ancestor as well as in his own time.

§ 5. Any person entitled to damages in any such case, may recover the same in an action on the case. And if it shall be found by the jury that the waste was committed wantonly, or that the party committing it, knew he was not authorized to do the acts complained of as waste, judgment shall be for such damages, and that the defendant forfeit the land on which the waste was so committed.

§ 6. Any such action may be brought or recovered against the person al representative of the party committing the waste.

§ 7. If the tenant in possession of any land, shall, pending any suit to recover or charge said land, with knowledge of such suit, commit any waste thereon, the court in which the suit is, may command the sheriff or other officer to take possession of the land, and if the plaintiff succeed in recovering or charging the land, he may recover in an action on the case, against him who committed the waste, three times the amount of damages assessed therefor.

To this chapter the revisors subjoined the following notes:

The action of waste proper is a remedy nearly obsolete. We have not known of more than one case in which it has been resorted to in

our time. Notwithstanding the temptation afforded by the right to treble damages, the harshness of the recovery has caused so much technical nicety to be required by the courts, that it is very difficult to succeed in it. In practice the action on the case has superseded it. We propose, then, to substitute the action on the case for the old action of waste, in all cases.

The rules of pleading and technical nicety required in the proceedings in a writ of waste, will be seen in Green v. Cole, 2 Saund. 228. The action only lay in favour of the person entitled to the immediate reversion in fee. We are not sure that the same rules exist in relation to the action on the case for waste. But however it may be, we think the right to recover for waste should be enjoyed by any body who is injured by the act of waste, and against any tenant of the land, and have so drawn this chapter.

Under the act of 1792, (1 R. C. p. 462,) taken from the stat. of Gloucester, (6 Edw. 1, ch. 5,) when there was recovery in a writ of waste, there was judgment for the place wasted, and treble damages. We propose to dispense with the treble damages, except in a single case, and to give the forfeiture only in cases of wanton and wilful waste, and in such case to extend the forfeiture to the whole land on which the waste was committed. It is often a question of great doubt whether a particular act constitutes waste. And it is certain that many things which would be adjudged waste in England, would not be so regarded in this country, owing to the different condition of the lands in the two countries. It would then be very harsh to subject a tenant of land in all cases to treble damages and a forfeiture of any part of his tenement. But where he does waste wantonly and wilfully, he ought to be subjected to the forfeiture of the whole tenement, and not merely of the place wasted, or (as that expression has been interpreted,) the part of the tenement wasted; an exceedingly inconvenient provision, and one under which there have grown up numerous technical distinctions very embarrassing in practice. See Green v. Cole.

Changes were afterwards made by the joint committee on revision. They struck out what is printed above in italics; but at the end of § 5, after the words "judgment shall be for," inserted the words, "three times the amount of damages assessed therefor." The chapter was passed as thus altered, and will be found in the Code at p. 566.

CHAPTER LXVII.

ACTION FOR A TRESPASS UPON LAND.

1. Plaintiff must have a right of possession as against defendant. Bare possession is sufficient against a wrong

doer.

An action will not lie for a trespass upon land unless the plaintiff at the time of the alleged trespass was entitled to possession of the land as against the defendant. Alexander v. Bonnin, 4 Bingh. N. C. 799, 33 Eng. Com. Law Rep. 531.

The action cannot be maintained by one whose occupation was merely on account of the defendant, and as his servant. Mayhew v. Suttle &c. 26 Eng. Law & Eq. 139, 28 Id. 266.

But it is an elementary principle that proof of possession is sufficient to entitle the plaintiff in trespass to recover against a wrong-doer. Heath v. Milward, 2 Bingh. N. C. 98, 29 Eng. Com. Law Rep. 98; 12 Adol. & El. 624. When it is alleged that the defendant trespassed on the plaintiff's close, the allegation of possession hereby implied is maintained not only by a possession rightful against all the world but also by bare possession (not standing on indefeasible title) unless the defendant has a right to the possession. Patteson, J., 14 Adol. & El. N. S. 71. A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can, without delay, reinstate himself in his former possession. Browne &c. v. Dawson &c. 12 Adol. & El. 624, 40 Eng. Com. Law Rep. 137.

2. Party having right of possession may make a peaceable but not a forcible entry. When entry upon tenant for

years is a trespass; when not.

A forcible entry is prohibited in England by the statute of 5 Rich. 2, c. 7; Bac. Abr. Forcible entry B; King v. Wilson, 8 T. R. 360; and in Virginia by the Code, p. 556, c. 134. But one having a right of entry, may enter peaceably, without being a trespasser. Taylor v. Cole, 3 T. R. 295. When the term of a tenant from year to year has, upon a proper notice to quit, expired, and the landlord has made a lawful en

try, the tenant is not allowed to convert it into a trespass. Taunton v. Costar, 7 T. R. 427; Argent v. Durrant, 8 Id. 403; Davis v. Connop, 1 Price 53. Upon the facts of a case it may be a question whether the landlord's entry was forcible or peaceable. In one case, at a time when some little furniture was still in the house but nobody in it, the landlord broke open the door and resumed possession. This entry was adjudged lawful. Turner v. Meymott, 1 Bingh. 158, 8 Eng. Com. Law Rep. 280. The party who having a right to the land lawfully enters and obtains lawful possession is not to be treated as a trespasser by the person in possession at the time of the entry, but may maintain trespass against that person if he wrongfully continues upon the land. Butcher v. Butcher, 7 Barn. & Cress. 399, 14 Eng. Com. Law Rep. 59. It is not necessary that the party who makes the entry should declare that he enters to take possession; it is sufficient if he does any act to shew his intention. S. C.; 6 Bingh. N. C. 52. Having regained possession of the land by his peaceable entry upon the unlawful possession of his tenant, and being entitled to treat his tenant as a trespasser, all who come upon the land without title after such revesting of his possession are trespassers also and are liable to be sued as such. Hey v. Moorhouse, 6 Bingh. N. C. 52, 37 Eng. Com. Law Rep. 279.

Such is the course of decision when the landlord obtains the possession by legal means. Hillary v. Gay, 6 C. & P. 284, 25 Eng. Com. Law Rep. 398. He does not so obtain it when in making his entry upon the tenant he is guilty either of a breach of the statute, or of an offence against the common law. Tindal, C. J. in Newton v. Harland, 1 Man. & Grang. 644, 39 Eng. Com. Law Rep. 588. No case has yet been decided in which the lessor has been held to be justified in expelling by force from a dwelling-house, a person who, having lawfully come into possession of it, has merely continued to hold possession after the expiration of his title. sanquet, J., S. C.

Bo

3. Right of one who is disseised and re-enters to maintain trespass for mesne profits. What may be recovered by tenant who is unlawfully dispossessed by landlord, generally depends on whether tenant makes re-entry before bringing his action of trespass.

When a man is disseised and re-enters, such re-entry refers to and has relation back to the time of his first entry, and he may bring an action for mesne profits and recover them from the date of the prior entry; for there he was in actual posses

sion at the time the trespass was committed. 2 Roll. Abr. tit. Trespass per relation" 554; Com. Dig. "Trespass" (B 3); Perry v. Bowes, Ventr. 361; Parke, B., 5 W. H. & G. 944. If a tenant be dispossessed by his landlord before the expiration of his term, what he may recover in an action of trespass against the landlord will depend upon whether or no he made a re-entry before bringing such action. In the one case, upon regaining the possession, he is, by relation, considered. as having had a continued possession, and may then, in an action of trespass, recover the mesne profits and damages for the whole time he was dispossessed. Green, J. in Cooke v. Thornton, 6 Rand. 13. In the other case-where he has not regained the possession-he can only in such action recover damages for the original trespass and ouster: in estimating such damages, the jury are not to consider the value of the term unexpired, at the date of the ouster, but are to confine themselves to the first entry, to wit: the simple trespass and ouster. S. C. This rule does not apply where the estate of the disseisee is determined by its own limitation or by the act of God, so that the disseisee cannot enter. There, from the necessity of the case, he may, without re-entry, maintain his action against the trespasser for the continued dispossession. Green and Cabell, J's, S. C. 13, 18.

4. Right of landlord to enter upon tenant at will. When an action for a trespass will lie for or against such tenant.

By the principles of the common law, the lessor may at any time enter and determine a tenancy at will. Curl v. Lowell, 19 Pick. 26. In Massachusetts, on such determination of the estate, a reasonable time is allowed the tenant to remove his family, furniture and other property; and he may, if disturbed by the lessor in the exercise of this right, maintain an action against him for the trespass. Rising &c. v. Stannard, 17 Mass. 287; Ellis v. Paige &c. 1 Pick. 48. Where, after the lapse of a reasonable time, the lessor removed the lessee's effects out of the building with care, the lessee failed to maintain an action of trespass. Curl v. Lowell, 19 Pick. 26. On the other hand, where the defendants broke open the lessee's trunks and committed other enormities, such acts were considered in Virginia to shew quo animo the defendants entered, and to make them trespassers ab initio. Faulkner v. Anderson, Gilm. 221.

Voluntary waste by a tenant at will is a determination of the will; and an action of trespass will lie therefor on behalf of the reversioner against such tenant. Co. Lit. 57 a; 5 Rep.