Page:William Blackstone, Commentaries on the Laws of England (1st ed, 1768, vol III).djvu/222

210 contemplation of law, as when one man’s land adjoins to another’s in the ame field. And every uch entry or breach of a man’s cloe carries necearily along with it ome damage or other: for, if no other pecial los can be aigned, yet till the words of the writ itelf pecify one general damage, viz. the treading down and bruiing his herbage.

mut have a property (either abolute or temporary) in the oil, and actual poeion by entry, to be able to maintain an action of trepas: or at leat, it is requiite that the party have a leae and poeion of the veture and herbage of the land. Thus if a meadow be divided annually among the parihioners by lot, then, after each peron’s everal portion is allotted, they may be repectively capable of maintaining an action for the breach of their everal cloes ; for they have an excluive interet and freehold therein for the time. But before entry and actual poeon, one cannot maintain an action of trepas, though he hath the freehold in law. And therefore an heir before entry cannot have this action againt an abater; though a dieiee might have it againt a dieior, for the injury done by the dieiin itelf, at which time the plaintiff was eied of the land: but he cannot have it for any act done after the dieiin, until he hath gained poeion by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law, by a kind of jus potliminii, uppoes the freehold to have all along continued in him. Neither, by the common law, in cae of an intruion or deforcement, could the party kept out of poeion ue the wrongdoer by a mode of redres, which was calculated merely for injuries committed againt the land while in the poeion of the owner. But by the tatute 6 Ann. c. 18. if a guardian or trutee for any infant, a huband eied jure uxoris, or a peron having any etate or interet determinable upon a life or lives, hall, after the determination of their re-

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