13 a ; Cro. Eliz. 777, 784; Phillips v. Covert &c. 7 Johns. 1; Daniels v. Pond, 21 Pick. 371.

5. Action for trespass in cutting and carrying away plaintiff's wood without authority. Vendee in possession treated as a tenant at will, and liable to an action for such a trespass.

A man is clearly a trespasser who without the license of the owner of land goes upon it and cuts his wood. He acquires, as against the owner of the soil, no property in the wood by cutting it, and can transfer none to another. So soon as the wood is cut and separated from the soil, it is the personal property of the owner of the land. The man who cut it may sell it to another who, under a mistake as to the vendor's rights, may pay for it and take and carry it away; but this will be no answer to the owner's action against the purchaser for the value of the wood so taken and carried away. Higginson &c. v. York, 5 Mass. 341.

An action of trespass for cutting trees and carrying away the timber will lie against one who committed the trespass while he was in possession of the land under an agreement for a conveyance upon the performance of certain acts; the agreement, if a license to enter, was not a license to cut and carry away the trees; the defendant was in no higher character than a tenant at will; and if a tenant at will cuts timber, it is trespass. Suffern v. Townsend, 9 Johns. 35; Cooper v. Stower, Id. 331. The court observe that "cutting down the timber beyond what was requisite for the use and improvement of the farm was waste, and a determination of the tenancy at will. By withholding a deed until the payment of the money, the plaintiff meant to hold the land as a security for the debt; and it would cease to be a security, if the defendants might lawfully, under the contract, render the land useless and of no value, by stripping it of all its timber." Id.

The contract in such a case, is construed reasonably and consistently with the rights of both parties. Though it gives a right of occupancy for a term of years, it does not follow that the occupant may cut from that part of the land not suitable for cultivation, trees which constitute the principal value of the land, that is the security for the purchase money. The tenant who so commits waste acquires no title to the timber which he thus unlawfully cuts, and of course can convey none; one purchasing from him, though bona fide, acquires none, but is liable in trover to the owner. Mooers v. Wait &c. 3 Wend. 104.

6. Action lies notwithstanding descent to heirs of disseisor.

Under the common law as modified by the statute of 32 Hen. 8, c. 33, if a disseisor having no right or title had peaceable possession of land for five years next after the disseisin, and died thus seized, the descent in law, to his heirs, took away the right of entry from the disseisee. There might, after the disseisor's death, be such an act, as would be an entry sufficient to revest the possession in the disseisee; were it not for the descent cast; but from that a difficulty would arise in the way of an action of trespass. Putney v. Dresser, 2 Metcalf 583. The Virginia act in 1 R. C. 1819, p. 514, c. 129, § 4, being taken from the statute of 32 Hen. 8, c. 34, the difficulty just mentioned existed here as it did in other states where the common law rule had not been changed otherwise than by that statute. A change has been made by legislation in New York, (2 R. S. 295,) Massachusetts (R. S. p. 610, c. 101, § 5,) and England. Following this example, the revisors of the Code of Virginia proposed, and the legislature adopted, in lieu of the act in 1 R. C. 1819, p. 514, c. 129, § 4, the following, taken from the statute of 3 and 4 Will. IV.:

"The right of entry on, or action for, land, shall not be tolled or defeated by descent cast." Code, p. 556, c. 133, § 4.

7. Action for mesne profits consequential to judgment in ejectment. How far such judgment will sustain the action of trespass. Against whom the action will lie.

An action for mesne profits is consequential to the recovery in ejectment. It may be brought by the lessor of the plaintiff in his own name, or in the name of the nominal lessee; and in either shape it is equally his action. The tenant is concluded by the judgment, and cannot controvert the plaintiff's title. Nor can he controvert the plaintiff's right of possession; for that is part of his title: the plaintiff to entitle himself to recover in an ejectment, must shew a possessory right not barred by the statute of limitations. The judgment (like other judgments) only concludes the parties as to the subject matter of it. As in the ejectment, the plaintiff beyond the time laid in the demise alleged no title, and could not be put to prove any, so beyond that time the judgment proves nothing; nothing as to the length of time the tenant has occupied, nor as to the value. Therefore, in the action of trespass for mesne profits, it is to be proved how long the defendant enjoyed the premises, and what the value was.

Aslin v. Parken, 2 Burr. 668; Goodtitle v. Tombs, 3 Wils. 118; Doe v. Wright, 10 Adol. & El. 763, 37 Eng.. Com. Law Rep. 222; Doe v. Wellsman, 2 W. H. & G. 368; Van Alen v. Rogers, 1 Johns. Cas. 281; Cox &c. v. Callender, 9 Mass. 533; Codman &c. v. Jenkins, 14 ld. 100; Benson &c. v. Matsdorf, 2 Johns. Rep. 371; Baron v. Abeel, 3 ld. 481; Jackson v. Randall, 11 Johns. 405; Langendyck & wife v. Burhans, Id. 461; Dewey v. Osborn, 4 Cow. 329; Jackson v. Combs, 7 Id. 36; Hylton v. Brown, 2 Wash. C. C. R. 165; Bailey v. Fairplay, 6 Binn. 450. The record in ejectment is evidence of the plaintiff's possession of the premises at the time of the demise laid in the declaration in ejectment; and therefore on the production of the record the plaintiff may be entitled to recover mesne profits subsequent to the date of that demise. If the plaintiff seeks to recover mesne profits antecedently to that date he is bound to prove such a title, accompanied by possession, as would enable him to maintain an ordinary action of trespass. Parke, B., 5 W. H. & G. 946. Under the Pennsylvania acts of 21 March 1806, and 13 April 1807, making a change of form in the action of ejectment, the judgment in ejectment, which, in trespass for mesne profits, was conclusive as to the right to recover these profits from the time laid in the declaration, is now conclusive as to the right to recover them from the time of issuing the writ. Lloyd v. Nourse & wife, 2 Rawle 49; Huston v. Wickersham, 2 W. & S. 313; Postens v. Postens, 3 Id. 182. This is the effect of every judgment in ejectment, whether the first or any other between the same parties or privies; the judgment in the second, if contrary to that in the first, may be considered in effect as a reversal of it from the date of the demise laid in the second, or the date of suing out the writ in it... Man v. Drexel, 2 Barr 202.

Sir James Mansfield seems to have thought that the defendant in an action for mesne profits must be the person in actual possession and trespassing. Burne v. Richardson, 4

Taunt. 720. This dictum cannot be maintained. One who has put in another person as tenant, and tells him to stay in, is a trespasser by the tenant, and liable in the action for mesne profits, though the judgment in ejectment was against another. Doe v. Harlow &c. 12 Adol. & El. 40, 40 Eng. Com. Law Rep. 17. When the declaration in ejectment is served on the tenant in possession, and the consent rule is entered. into by another, and judgment given against him, he is regarded in England as having defended in the character of landlord, and the action of trespass for mesne profits is maintained against him on that footing. Doe v. Challis, 17 Adol. VOL. II.-41

& El. N. S. 166, 79 Eng. Com. Law Rep. 166, 6 Eng. Law & Eq. 249.

8. When after judgment in ejectment, action of trespass is brought, it need not be limited to recovery of mesne profits, but may be maintained for other wrong in removing buildings, &c.

When under judgment in ejectment the plaintiff has been put in possession, he may maintain an action for wrong done by the defendant or his servants before the plaintiff regained possession. Lifford's case, 11 Rep. 51; Holcomb v. Rawlyns, Cro. Eliz. 540. The contrary position in 6 Bac. Abr. Trespass (C.) pl. 3, p. 566, that the disseisee of land cannot maintain an action of trespass quare clausum fregit for an injury done thereto betwixt the time of the disseisin and his re-entry, if it be intended of the disseisor as well as strangers, the supreme court of New York has said is not law. Dewey v. Osborn, 4 Cow. 337. In this case it was after verdict and before judgment in the ejectment that the wrong was committed in removing buildings. After the writ of possession was executed, an action of trespass was brought for that wrong; and the action was maintained.

In New York while it is admitted that a disseisee cannot maintain trespass until he regains possession, it is considered that he is then remitted, by relation, to his former seisin as between him and the disseisor; he may therefore maintain an action for an injury to the freehold as well as for the rents and profits. 8 Wend. 591.

It is a general rule with respect to the doctrine of relation that it shall do no wrong to strangers. 16 Vin. Abr. 293; Menvil's case, 13 Rep. 21. While, therefore, one put into possession by the judgment of a court of competent jurisdiction may, when that judgment is set aside, be considered a trespasser by relation and made answerable for the damages, it may be otherwise with respect to strangers who come in by title under the disseisor. Lifford's case, 11 Rep. 51. An action of trespass may not lie against them for cutting down and carrying away timber from the land, under his license, when he, by virtue of the judgment (and before it was set aside), was in lawful possession. Case v. De Goes &c. 3 Caines's Rep. 261.

The dictum of Lord Coke in Lifford's case, with respect to strangers is, however, received with some qualification. Holcomb v. Rawlyns, Cro. Eliz. 540, Moor 461; Bull. N. P. 86, 7. The defendant in an action of ejectment cannot, by giving up

the possession to a third person, after the commencement of the suit, defeat the effect of the recovery. Certain it is that as it respects the right to mesne profits, a recovery in ejectment is conclusive of the title as to the land possessed by the defendant when the action was brought, into whose hands soever it may subsequently pass, by transmutation of the possession from that defendant. Jackson v. Stone, 13 Johns. 447. And the principle on which this rule rests extends beyond the recovery merely of mesne profits. It would be objectionable to hold that any irresponsible person may turn the owner forcibly out of possession of his real estate, sell the buildings and the timber, and thereby destroy the value of the property and leave the owner without other redress than could be obtained from an irresponsible man. In New York when such a sale was made under suspicious circumstances-for less than a quarter of the value of the subject-the remedy was not confined to the disseisor himself; it was extended to the purchaser. Morgan v. Varick, 8 Wend. 587.

9. Whether a mortgagee after obtaining judgment in ejectment may not recover mesne profits. The Massachusetts decisions holding that he cannot, examined and disapproved.

A mortgagee who has not obtained a judgment in ejectment cannot maintain an action of trespass for mesne profits which arose prior to the day of his being in actual possession. Mayo v. Fletcher, 14 Pick. 531. date of the mortgage deed.

There is no relation back to the Though an ejectment be brought and a consent order be made that proceedings in the action be stayed until a given day (the defendant undertaking to give up possession on that day), the agreement made by this order will not, as it regards the right to recover mesne profits, have the effect of a judgment in ejectment. Litchfield v. Ready, 5 W. H. & G. 939, 1 Eng. Law & Eq. 460.

In Massachusetts there has been maintained a doctrine which may not stand the test of further examination. The supreme court of that state holds that although a judgment in an action to obtain possession of the land is generally conclusive evidence of the right to recover in an action of trespass for mesne profits, yet that a judgment in favour of a mortgagee against a mortgagor or his assignee is an exception to the general rule; that notwithstanding such judgment, neither the mortgagor nor his assignee is liable for rents and profits. Wilder v. Houghton, 1 Pick. 87; Boston Bank v. Reed &c. 8 Id. 462. This, the author thinks is a conclu