[92 a] Assemblies another in such general cases, as in cases of common modus decimandi, and the like, wherein also it is many times ordered, for avoiding of unnecessary multiplicity of suits, that a trial may be had in one man's case for all. Now as they are acknowledged parties to their prejudice in defence, so it is in reason that they be in like manner allowed for their advantage. And so it was said, that it had been ruled in that court before in the case of the L. Grey of Groby. Yet the Lord Chancellor seemed to be of a contrary mind, and cited a precedent in 8 El. to that purpose. But yet in this case it was agreed, that they must not join themselves together by oath, which was in this case suspected, but not sufficiently proved. But Bell, unlawful. being a tenant, was fined one hundred pounds for assembling the tenants to the number of two hundred in an open field, where Leonard Dacres had been in open rebellion, and fought a battle with the queen's forces, divers of the said tenants being weaponed with swords and daggers, abiding three hours together; and yet nothing was proved done there by any of the defendants, but conference concerning the defence of their title by promise and writing, and contribution of money to that purpose. And Hodson, another tenant, was also punished for being present at that assembly, and the event of such assembly is in no man's power to moderate. And Salkeld and Dacres were fined a hundred pounds a man, because that being no tenants, nor any ways interested in the cause or title, and being men of strength and countenance, they did thrust themselves by way of maintenance into it, warranting the Maintenance of title, stirring the people to persist in it to give occasion cause by com of suits at the least, where perhaps else the cause had mon persons. been ended by way of agreement, with all, as it hath done with many. But Salkeld and Dacres were not of the assembly, neither did it certainly appear that they were acquainted with all. And Mich. 14 Jac. Barkshire, in a case between Edmund Dunch, esquire, plaintiff, and Bannester and other defendants, where the question was between the plaintiff's and the defendant's tenants of the Lord Norris of Dorchester's manor for a common in effect claim a common Noy 99. [92 b] ed, which he denied, though the action were between him and one of them only, upon a particular custom laid for his tenement only for necessity of pleading; it was resolved by the most part, that they might all maintain with their purse. But because Bannester, though he were a tenant, had threatened some, that they should lose their copyhold for not contributing to the Lord Norris, he was fined at forty pounds, and the two rest quitted. But the Lord Chancellor differed. Cheq. Cham. upon an obli 33. Winch. Ent. 168, 169. Jenk. Cent. 261. Condition, 888. 2 Roll. 595. 3 Bulst. GOLD VS. Death. The word proof, in legal construction, generally means proof in court, but it may be otherwise used in an obligation. In debt upon an obligation, brought against the executor of the obligor, the condition is set forth that if A. should waste or consume any of the obligee's goods, &c. and that duly proved by confession or otherwise, the obligor or his executor, should, within three months next after such proof and notice thereof given to him or them, make recompense, &c. The defendant pleads that no proof was made; and the plaintiff replies that A. embezzled four hundred pounds, and confessed it, &c. and that the plaintiff gave notice thereof to the defendant. Held, that proof by confession or otherwise in court was not necessary to entitle the plaintiff to recover, but that the replication was bad because it averred the notice to the defendant, executor, without showing that the obligor was dead. HUGH GOLD brought an action of debt upon an obligaAction of debt tion against Henry Death, executor of John Death, and gation. 1 Bral. the condition was, that where Gold had taken Anthony Death as an apprentice, that if he the said Anthony 300. 1 Ro. 222, should waste or consume any of his goods, and that duly Br. 151. 2 Cro. proved by the confession of the said Anthony, or other381. Moo. 845, wise, that then John Death and his executors, within three months next after such due proof and notice thereof given 55. 1 Roll.Rep. 222, 261. Buls. unto him or them, should render him recompense and satisfaction. The defendant pleads, that there was no proof made, &c. The plaintiff replies, there came to the hands of his apprentice in Flemish money to the value of three thousands pounds of his, whereof the apprentice embezParol [proof] zled and wasted as much as came to four hundred pounds, and that he confessed it, and by a writing under his hand did acknowledge and confess it; and that he gave notice of it to the said Henry Death, and he did not make him 1. R. 40. how to be taken. 2 Ro. 434. p. 12. Post. 217. [92 c] [93] 6 Co. 20. a. 76. b. Mo. 113, 253, 322. Ben. 139. Perk. 791 recompense within three months; whereupon the defendant demurred. And it was adjudged for the plaintiff in the King's Bench. And now upon a writ of error in the Exchequer Chamber the judgment was agreed to be confirmed; for though the word proof but generally shall be understood by law such a proof as is legal, scil. proof by 2 Roll. 594. jury, yet when the party expresseth himself to mean and Syd. 313. 1 Co. allow another form of proof, that shall prevail against that that is but by construction of law. And here it is referred to the confession of the party, which shall be understood a confession voluntary according to the common acceptation, and not a confession in the court of record. Also, though it be not said to whom he made the 1 Cr. 382. confession in replication, yet by the greater opinion it was holden good enough, because it answered the words of the condition. And it is not like Halfpeny's case of agreement or disagreement to an interest, which must be made to the party interested. Yet afterwards it was found and moved by Heneage Finch, of counsel with the plaintiff, that the notice was laid to be given to Henry Death, which was the executor; and it did no where appear that John Death, the testator, was dead at the time of the notice, which was a necessary part of the condition. And therefore the judgment was 2 Cr. 381, 488. reversed. (1) (1) Vide post. 217, Crookhay v. Woodward. MOORE VS. HUSSEY. A feme covert is punishable, without her husband, for ravishment of ward. A verdict finding that the ward was married, (without finding by whom) is suffi- AT the common law, and before the statute of Gloucester, c. 1. if A. were disseized by B. and B. enfeoffed C. or were disseized by him, A. had no remedy for damages. [98] [98 a] against the feoffee, or disseisor of his disseisor, but was to bring his assize against B. who was the immediate disseisor, and therein he was to recover the mean profits by way of damage, not only for his own time, but also for the profit received by the feoffee or second disseisor. And likewise if A. the first disseisee, had entered whereby he had lost his assize, he might, by an action of trespass vi et armis brought against his dissiesor, recover the mean profits, for all the mean possessions; but neither at the common law nor now, can he recover, upon his reentry, damages against the feoffee, lessee, or second disseisor, by action of trespass vi et armis, for that fits not his case as to them who did no immediate trespass. And therein the common law doth no wrong to charge the first disseisor for the profits not received by him, because the first disseisee had no remedy for them against the second disseisor or the feoffee. But the first disseisor had remedy by action against the second disseisor, or was supposed to have received satisfaction, at the hands of the feoffee or lessee, and so paid but where he received. (1) (1) The doctrine here advanced by Hobart is impugned by various authorities, among which are the following. 33 H. 6. 46. Cro. El. 540, Holcombe v. Rawlins. Mo. 461. Owen 111, pr. Popham, Gawdy and Fenner JJ. cont. Clench. Rol. Abr. Tresp. per relation, pl. 7. 8. Com. Dig. Trespass. B. 2. Vin. Ab. Trespass. T. pl. 7. Gilb. Ten. 46, 47. Bul. N. P. 87. Ham. N. P. 195. 2 Pick. 473, Emerson v. Thompson, pr. Wilde J. On the other hand, the doctrine of the text is supported by authorities not less numerous and respectable. The following may be cited. 34 H. 6. 35, pr. Littleton, Spelman and Pole, cont. Fortescue and Danby. 13. H. 7. 15, 16, pr. Constable, Kingsmail, Frowicke and others, cont. Keble and Wood. 11 Co. 51, Liford's case. Hetl. 66, Symons v. Symons. Bro. Abr. Trespass. pl. 35. Bac. Abr. Trespass. G. 2. 1 Wood's Conv. 108. Keil. pl. 2. Vin. Abr. Trespass. R. 4. pl. 2, 5. 3 Caines 261, Case v. De Goes. 12 Mass. 46, Fletcher v. McFarlane, pr. Parker C J. 2 Pick. 491, Emerson v. Thompson, pr. Putnam J. Stearns on Real Actions 419, in notis. Those who hold that the disseisee may maintain an action of trespass against the alienee of the the first disseisor, or against a second disseisor, found their opinion, first, on a legal fiction, that by the reentry of the disseisee, he is remitted to his original possession and is as if he had never been out of possession; and then all who occupied in the mean time, by what title soever they came in, shall be answerable to him in trespass for the profits during their own time; and, secondly, upon a liberal construction of the stat. of Gloucester c. 1. which provided that in an assize of novel disseisin, the tenant should be liable to the disseisee for damages, if the disseisor was unable to satisfy To this it is answered that a legal fiction ought never to be perverted to make an act which was lawful when done, a trespass by relation, ex post facto, because in fictione juris semper æquitas existit; and secondly that the stat. of Gloucester was limited in its operation to certain specified cases of possessory and ancestral writs of which trespass is not one, and therefore is left as at common law; and by the common law the disseisor alone was liable to damages, though the land might be recovered against his alienee. Again, the action of trespass vi et armis, as suggested in the text, fits not the case of the disseisee as to the alienee of the disseisor, or as to his disseisor who did no immediate trespass to the original disseisee, This action is the appropriate remedy for an injury to the possession only. A mere title, however valid, or a mere right of entry or possession, however perfect, is not sufficient. So strictly true is this position that the disseisee cannot maintain the action even against his immediate disseisor, for any act done by him after the disseisin and during the continuance of his possession. Even after his restoration to the possession, it is only by the legal fiction of a remitter, a kind of jus postliminii, that he is enabled to maintain the action against the tort-feasor himself. The disseisor, while in possession, is seized of an estate in fee-an estate recognized by law, an estate sufficient to satisfy the covenants in his deed, of lawful seisin and of good right to convey. (See ante Pincombe v. Rudge in notis.) His alienee, therefore, comes into possession by legal title which, though not indefeasible, is so far valid as to protect him from being a trespasser by his entry. He enters under the authority of a person having title and in actual possession. He does not therefore violate the posession of any one-in other words, he does not commit a trespass against any one. Can the alienee, then, be made a trespasser ab initio by a fiction of law without any unlawful act of his own, by the subsequent entry of the disseisee? The general rule of law is that a trespass must be an injury at the time when the act is done; and that an injury which has been derived from an act which was, in the first instance, lawful, cannot be a trespass. The exception to the rule is, that wherever a person, who at first acted with propriety under an authority or license given by law, afterwards abuses that authority or license, he becomes a trespasser ab initio. This exception does not apply to the alienee of the disseisor, who enters and retains his possession by title. His case, therefore, comes within the general rule, and it would seem therefore, that upon legal principles, he is not liable in trespass to the disseisee, either before or after his reentry. As It may be said that this doctrine does not apply to a second disseisor, because his original entry is tortious; that he enters without title or color of right, and is therefore liable in trespass as a tort-feasor, to the first disseisee. But this reasoning is by no means satisfactory. trespass is the appropriate remedy for an injury to the possession only, the action must be brought by him whose possession is disturbed, that is, by the first disseisor. The first disseisor, by his disseisin of the owner, becomes seised of an estate of inheritance, which, though defeasible by the disseisee, is a good and valid estate as to all who are strangers to the title. The trespass, therefore, which the second disseisor commits by entering upon the possession of the first disseisor, is a trespass against the latter, and not against the original disseisee. Accordingly it is well settled that the first disscisor may maintain this action against his disseisor; and if the original disseisee may also maintain the action, then the trespasser will be doubly punished for the same trespass. Plowd. 546, Paramour v. Yardley. In the case of Emerson v. Thompson, 2 Pick. 473, it was held by a majority of the court that the disseisee, after his reentry, might maintain [98 b] |