A Summary of the Law of Torts Or, Wrongs Independent of Contract

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Being afterwards at their request supplied with more wine, they refused to pay for it, and upon this it was sought to render them trespassers ab initio, but without success ; for although they had authority by law to enter (it being a public inn), yet the mere non-pay- ment, being a non-feasance and not a mis-feasance, was not sufficient to render them trespassers.
Possession necessary to maintain Tres- pass. In order to maintain an action of trespass the plaintiff must be in the possession of
...the land, for it is an injury to possession rather than to title.
Rule 40. — The possession of land suffices to maintain an action of trespass against any person wrongfully entering upon it; and if two persons are in possession of land, eacli asserting his right to it, then the person who has the title to it is to be considered in actual possession, and the other person is a mere trespasser {Jones v. Chapman, 2 Ex. 821).
Thus a person entitled to the possession of lands or houses, cannot bring an action of trespass against a trespasser until he is in actual possession of them 164 PARTICULAR TORTS.


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