contemplation of law, as when one man’s land adjoins to another’s in the ſame field. And every ſuch entry or breach of a man’s cloſe carries neceſſarily along with it ſome damage or other: for, if no other ſpecial loſs can be aſſigned, yet ſtill the words of the writ itſelf ſpecify one general damage, viz. the treading down and bruiſing his herbage[1].
One muſt have a property (either abſolute or temporary) in the ſoil, and actual poſſeſſion by entry, to be able to maintain an action of treſpaſs: or at leaſt, it is requiſite that the party have a leaſe and poſſeſſion of the veſture and herbage of the land[2]. Thus if a meadow be divided annually among the pariſhioners by lot, then, after each perſon’s ſeveral portion is allotted, they may be reſpectively capable of maintaining an action for the breach of their ſeveral cloſes[3]; for they have an excluſive intereſt and freehold therein for the time. But before entry and actual poſſeſſon, one cannot maintain an action of treſpaſs, though he hath the freehold in law[4]. And therefore an heir before entry cannot have this action againſt an abater; though a diſſeiſee might have it againſt a diſſeiſor, for the injury done by the diſſeiſin itſelf, at which time the plaintiff was ſeiſed of the land: but he cannot have it for any act done after the diſſeiſin, until he hath gained poſſeſſion 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 poſtliminii, ſuppoſes the freehold to have all along continued in him[5]. Neither, by the common law, in caſe of an intruſion or deforcement, could the party kept out of poſſeſſion ſue the wrongdoer by a mode of redreſs, which was calculated merely for injuries committed againſt the land while in the poſſeſſion of the owner. But by the ſtatute 6 Ann. c. 18. if a guardian or truſtee for any infant, a huſband ſeiſed jure uxoris, or a perſon having any eſtate or intereſt determinable upon a life or lives, ſhall, after the determination of their re-
