OCTOBER TERM, 1768.

Lib. D. D. No. 15. fol. 201.

#### Benjamin Johnson, and Thomas Johnson’s Lessee, *against*John Howard, by Guardian.

EJECTMENT, for two tracts of land, called *Plantation,*and *Howard’s*Range, lying in *Anne Arundel County,*The action commenced on the 17th *August,*1765.

At the trial of this cause at the Assises held in *Anne Arundel*County, in *September,*1768, the plaintiff, to prove that *Anthony Johnson*was the eldest son of *Anthony Johnson,*by his first wife, and that *William. Johnson*was the eldest son by his second wife, and brother of the whole blood to *John Johnson,*produced in evidence a book, entitled “ an extract copy of the marriages, births ** and burials, entered in the old registry of *St. Paul’s u*parish, by *John Gay, Nicholas Rogers,*and *John*“ *Thomas*and others, clerks of the vestry, transcribed by “ *James Gardiner,*clerk of the vestry, 1743 ; *John Walker,*“ clerk, *February*6th, 1749 — 50, examined by *Christopher*“ *Randall,*and *Nathan Stinchcomb,*vestrymen.” The first entry in which book was as follows : “ *Robert Phip’s “*of *Back River,*and *Filis,*his wife, was married by certifiw cate, *May*6th, 1696.” And the last entry, except one, was as follows: “ *Jemima Thomas,*daughter of *John*“ *Thomas,*died *August*18,1717.” And the last entry in the said book was as follows: “ Doctor *William Comings*“ died 6th *December,*1712.” And it appeared that the several entries in the said book, except the last, were all in one hand-writing; and also that there were marginal notes, mentioning the several persons who had made the entries in the old book, and by which said book, the births of the said *William Johnson,*and *John Johnson,*and the second marriage of the said *Anthony,*were entered in . *282these words, in page 1. “ *Anthony Johnson,*and *Catharine-*“ Smith, were married *March*3d, 1699.” In page *52.*“ Anthony, son of *Anthony*and *Catharine Johnson,*born t£ *December*15th, 1700.” In page 56. “ *John Johnson, u*son of *Anthony*Johnson, and *Catharine*his wife, born “ *April*3d, 1704.” “ *Benjamin*Johnson, son to *Anthony*“ and *Catharine*Johnson, born *October*8th, 1708.” It further appeared by the testimony of Mr. *Constantine Bull,*the present clerk of the vestry of *Saint Paul’s*parish, that there were then remaining in the said vestry, two old register books, but that he never examined them.

The counsel for the defendant, objected to the reading of the book offered in evidence, as there was no evidence of its being a ti-ue copy from, the original. The plaintiff’s counsel then proposed to prove the matters aforesaid, by traditional *evidence; to*which the defendant’s counsel objected, as the plaintiff had it in his power to produce better evidence: but it not appearing to the Court, that all, or any of the said entries were contained in the original regís-' ters, otherwise than as aforesaid, did allow the counsel for the plaintiff, to give traditional evidence by common reputation, to prove the said *Anthony*and *William Johnson,*to be brothers by different venters; and also to prove that *William*was eldest brother of the whole blood to *John Johnson.*To which opinion the defendant excepted.

It appeared from the special verdict of the Jury, that *Anthony Johnson*was seised of the two tracts of land for which this ejectment was brought, and died, leaving five sons ; Anthony, by his first wife, William, *John, Benjamin,*and *Thomas,*by his second wife, after having devised the said land to two of his sons, *William*and John, in fee, as tenants in common. *John*died without leaving issue, and his moiety descended to *William,,*his eldest brother of the whole blood, and heir at law, who entered and was seised »f the whole, and devised it to his brothers, *Benjamin*and *Thomas,*the lessors of the plaintiff. After the death of William, Benjamin, one of the devisees, entered into, and occupied the two tracts of land. On the 27th *November,**2831728, *Benjamin*being seised, and possessed of the whole of the said land, and being under age, executed a deed of bargain and sale ; in which deed was joined Anthony, his brother, of the half blood, who had never been in possession, conveying the land to *Benjamin Howard,*and received the quarter part of the consideration money. *Benjamin Howard*entered into the land in virtue of the said deed, and from the date thereof, quietly and peaceably used, possessed and enjoyed the said land, by cultivating and renting out the same, and by taking the whole of the profits to his own use, from the date of the deed of bargain and sale, till the year 1738, when he died, leaving *John Howard*his heir, who entered and actually possessed, and occupied the same, and during the time that he so possessed the land, in the month of February, 174S, *Thomas Johnson's*negroes cut logs on *Howard's Range.*

On the 28th *February,*1764, *Thomas Johnson,*one of the joint devisees of *William,*prosecuted an action of ejectment in the Provincial Court, for the recovery of one undivided moiety of the two tracts of land called the *Plantation*and *Howard's Range,*against *John Howard,*the tenant, who appeared and entered into the common rule, in *April*Term, 1764, and the action was from term to term, continued until *May*Term, 1765; when it abated on account of the death of *John Howard,*who devised the said land to his son, *John Hotvard,*the defendant. That *Benjamin Howard, John Howard,*his son, and the present, defendant, *John Hotvard,*and each of them, continued in •the uninterrupted, peaceable and quiet possession of the said land, and paid the quit-rents for the same, from the month of November, in the year 1728, up to the time of the special verdict, except the aforesaid act in *February,*1748, and the suit above mentioned. That *Benjamin*and • *Thomas*Johnson, the lessors of the plaintiff, or either of them, never have been in possession, otherwise than by the before mentioned act, in the year 1748. That *John*Howard, the defendant, as devisee, in virtue of the will of *284his father, *John Howard,*entered into the lands, and always possessed and enjoyed them, by cultivating and taking the whole profits to his own use, to the time úf the bringing this ejectment.

*Jenings,*for defendant.

The question is, whether the right of possession in those lands is not in the defendant, on the facts found by the verdict? It is found that from *November,*1728, to the time of this verdict, that the defendant and his ancestors, have been in the peaceable and uninterrupted possession, (unless by the act of negroes,) for forty years; that the lessors of the plaintiff never were in the possession, otherwise than by the act of the negroes. Here, then, is not only an adverse possession of 40 years found in us, but it is also negatively found, that they never were in possession ; this, then, is a complete title for us under the act of limitations. It is then to be considered what facts they set up, to take off the force of, and defeat the statute.

1st. That *Benjamin Johnson*being under age when the deed was made, *Benjamin Howard,*who claimed under it, could only be tenant at will.

To this it is answered, that admitting *Benjamin Howard*to be so, upon their own principles, this would only prevent the act from attaching during the continuance of the tenancy, for the principle alleged is, that the possession is the possession of the lessor. We are, therefore, to see when the estate at will determined; for from that period, by their own confession, the act commences to take effect. The tenancy at will then was determined by *Benjamin Howard's*death. *Vid. Co. Lift.*62. b. where it is said that by the death of the lessee at will, the lease is absolutely determined; so that if the heir enter, the lessor shall have an action of trespass, *vi et armis,*before any entry made by the lessor. The tenancy at will being then determined, the enti-y of *John Howard*could not be in consequence of it, for it is absurd to suppose that a man en» *285tered in virtue of a contract, which had no longer any existence; therefore, the entry of *John Howard,*was the same as if any other stranger had entered, and his possession could not be the possession of *Benjamin*Johnson, there being no privity between them. The estate at will, therefore, of *Benjamin*Howard, having ceased by his death, and this estate at will being the cause they allege why the act of limitations should not run, when this estate at will was determined, the act would run, for *cessante causa cessat effectus. 1*Burrow, 105. *and vide*the statute of limitations.

Another objection is, that there being no disseisin found, the act of limitations is no bar.

In order fully to understand this objection, it will be proper to consider the meaning and import of the term disseisin. We shall find that here there has been a disseisin, or ouster, agreeable to the sense in which this word has been understood. Before the use of letters, all property in lands passed by a solemn act of investiture ; because originally, no one could appropriate lands to himself, but by settling himself in the possession of it, and by the application of it to his own use ; so no man could transfer but by a solemn and public delivery over of the possession, and the ceremony used, is called livery of seisin. 2 *Bac.*Abr. 482. There cguld be no seisin without investiture; and seisin is a technical term, to denote the completion of that investiture by which the tenant is admitted into the tenure, and without which no freehold could at One time be constituted, or pass. Disseisin, then, was the usurping of the place and feudal relation, and was effected when a feoffment was made tortiously, and the services done by a wrong doer. At that time there was a difference between a disseisin and a dispossession. These disseisins were in some instances, supported as an encouragement to those who performed the services; they were to be performed annually, and if the party disseised, suffered the disseisor to perform them for a year, and the disseisor died seised, the entry of the heir was taken away, on the *286principle that he was to lose the feud, unless he performed the services to the Lord. In process of time the assise of novel disseisin was invented. *Co. Litt. 153.*b. This being a new remedy, the Courts, by liberal constructions in furtherance of justice, extended it to every kind of trespass or injury, dons to real property; whether such an act could come within the precise definition of a disseisin or not, if b.y bringing the assise, the party thought fit to admit himself disseised, and therefore, eveiy thing' is called a disseisin, for which an assise would lie. *Vid.*1 *Burr.*107. &c. *Littleton*then, wrote with a view to this kind of disseisin, as between owner and trespasser; or in other words, he considered every wrong to the possession, to be a disseisin. What he means, however, by disseisin, will be fully explained, by considering what he means by seisin. That, we shall find, was nothing more than possession. *Co. Litt.*153. a. *114.*a. He shews that the words are used as synonymous. *Vid. also Jacob's Imw Dictionary.*If then, possession means seisin, we had possession, and therefore seisin ; but if we could not have seisin of another’s lands, unless, he was disseised, and it being found that the other party never was in possession, we never could have had seisin. Heretofore there was a distinction prevailed between disseisin and dispossession, but the doctrine is now exploded, for no investiture now is necessary to make a disseisin; and Lord *Mansjield*says, that the case of *Mathesonv.*Trot, in 1 *Leon.*20.9. was the last in which the distinction was taken. 1 *Burr.*109,

These considerations, will enable us to explain the cases. *Co. Litt..*181. a. means, that every wrongful taking of possession of the lands of another, amounts to a disseisin, for in strictness of law, the cases he puts are_ not of an actual turning out, but what in law amounts to an ouster; and as to his saying that every entry is not a disseisin, it means that every lawful entry is not a disseisin, as appears by his citing the case of *Parson de Sony Lane's*case, which *Ploxvr den*explains, p. 89. The case of *Reading*v. Royston, *Salk.*423. meaps tlje same tiling; the getting of a wrongful sole *287possession, and the word *ouster*is there made use of as equivalent to disseisin. That ouster means dispossession, *vid. yacob’s Law Dictionary, verb.*Ouster, *Vid.*also *verb.*Disseisin, that it means the same in law. Disseisin means any injury done to the possession of the land. 1 *Roll. Air.*659. 2 *Bac. Mr. 97. Burr. 110.*And the books say twenty years possession gives a title, ruad not twenty years seisin ; they mean then the same thing. *Salk.*421. 2 *Stra.*1142. This is a case in which an assise of novel disseisin would lie, for it would lie in trespass. *Burr.*110. and that this is a trespass, *vid. Co. Litt.*62. b. If then an assise would lie, it must be a disseisin, for an assise of novel disseisin would lie for nothing else. That this was a disseisin, *vid. Salk.*24S. *Burr.*103. 3 *Lev.*35. *Liu.*sect. 429, 430. *Co. Litt. 237.*b. *qu. Cro. Eliz.*169. He that commands a disseisin, is a disseisor. *Bro. tit.*Disseisin, *77.*If tenant at will grant over his estate to another, and the grantee enter, he is a disseisor; for though the grant is void, yet it amounts to a determination of his will. 3 *Mod. 150. Co. Lilt. 57.*a. This is similar to our case, in which a stranger entered, after the determination of the tenancy at will. If one man enter upon another’s land, and keeps possession, and the person dispossessed will not bring suit to recover his possession, the act of limitations would certainly run, though there may be no actual putting out, and the Jury would not find such a fact. Unless it were so, the act might be eluded. In statutes, the mischief and the remedy are to be considered. 5 *Rep. 7.*This cannot be a disseisin at election, for if it were so, the statute would be of no effect, for it requires a disseisin of their possession, before the statute can attach, and yet it is in their power to elect whether there shall be a disseisin; that is, to elect whether the statute shall bar, which certainty they never would do. The election may operate so far, as to put it in the party’s power to relinquish a remedy for his own benefit, but not to debar another of his right. The assise of novel disseisin was introduced for the benefit of plaintiffs, but the act of limitations was introduced for the benefit of *288defendants; therefore the rule that *quilibet potest renuntiare juri pro se*introducto, may hold good in the one instance, but is not applicable in another. 3 *P. Wins.*310.

AH lands passed by feoffnaen't or grant. Here there is neither, but an assent signified that the party shall occupy the land; therefore, agreeably to the rule *ut res magis valent,*£s?c. the bargain and sale of *Benjamin Johnson,*an infant, to *Benjamin Howard,*shall be construed a tenancy at will, otherwise the party would be a trespasser, puts the case of a feoffment without livery. A tenant at will has no estate certain in the land, and therefore differs from a tenant for years, or for *life;*they have a fixed and certain interest during the continuance of their estates, and may bring an action against the lessor, as well as against strangers, for any inj’ury done to the possession. And therefore if an action of trespass is brought against tenant for life or years, they may plead the general issue, and give in evidence a title to the land in their justification, but a tenant at will is not considered as having an estate, but only a special license to occupy, and therefore he must plead it. *Vid. 5 Bac. Abr.*A remainder cannot be limited on it. 8 *Co. 75.*A tenant at will has so little property in the estate, that he cannot bring trespass against any person claiming title, but if a person enters in this manner, the lessor certainly may, or there would be an injury without a remedy. *Vid. Sid.*347. If a man puts a person on his land to keep possession, he is tenant at will, but it would certainly be an odd construction to say, it should hinder him from disposing of the inheritance. The cases which say a bargain and sale shall not operate without possession, do not go so far as to say he must be actually on the premises; but the reason why a bargain and sale shall not operate on*1 any thing but the reversion, where a lessee for years is in possession, is because the deed must not grant any thing but what may be legally granted by the grantor, which cannot be of a life estate. But no inconvenience will ensue in the' case of tenant at will, for he having no fixed interest, but at the will of the lessor, no injury is done to him, therefore no *289Inconvenience can ensue by construing the possession of the tenant at will, to be the possession of the lessor. The heir may make a lease before entry. *Plow.*142. A man to whom lands are conveyed by bargain and sale, may convey them over by bargain and sale without entry, though he may not bring trespass. 2 *Cro.*604. for the estate is vested in the bargainee by deed. A man made a lease during the continuance of tenancy at will, yet the only question was concerning the determination of the tenancy. *Vid.*2 *Lev.*8S. 1 *Vent.*247. Sir *T. Paym.*224. and it is observable that in all these cases, the point was not even, stirred, that the lease could not operate, which is surprising, it was such a defect. It may be said, this is a case of *leases,*and therefore different from *bargain*and *sales;*but the same law holds of leases, for they cannot be made *by*a person out of possession. *Vid.*2 *Stra. 1087.*But the books are so far from considering the estate of tenant at will, to operate so as to prevent a grant, that they will not let any grant made by tenant at will do it. *Vid.*3 *Mod.*196. *Latch. 75. Cro. Car.*303. Those cases which speak of bargain and sales being good, where the party is in possession, do not speak of actual possession, though where actual possession is requisite, the books make use of the term. But supposing this bargain and sale will not operate on the immediate estate, yet it will on the reversion, for that will pass by bargain and sale. *Vid. Plow.*433. and in *Brownlow,*298. *Coke*makes use of the words *bargain*and *sell*a reversion. Further, if it could be supposed that a reversion could not be bargained and sold, yet it cannot be denied but a reversion may be granted, and the partv may choose to have a deed operate one way or the other at his election, *ut res magis valeat, &c.*for it is the intent of the parties to have something transferred, and such construction shall prevail as may make the deed have some effect. 1 *Vent.*228. 2 *Lev.*213. 3 *Lev.*372. 1 *Bac.*276. So that take it either way, this deed must convey the freehold to the defendant.

*290*S.Chase,*for defendant.

One principal question is, whether it does not-appear by the verdict, that the plaintiff is barred of his entry by the statute of limitations. 21 *fac.*c. 16. I say the plaintiff, because in ejectment the lessor of the plaintiff and the tenant in possession are substantially and in truth the only parties to the suit. 2 *Burr. 667.*

An ejectment is a mixed action. It is *real*in respect of the land, and *personal*in respect of the damages and costs. *Cumb.*250. It is a possessory remedy grounded on an entry, and only competent where the lessor of the plaintiff may enter. 1 *Burr.*119. For an ejectment always supposes a wrong and injury done to the possession; and it must appear by the declaration, that the plaintiff had actually the possession, and was ousted thereof by the defendant. 2 *Bac. Abr.*171. 1 *Roll. Rep.*3. 1 *Vent.*30. As if lessee for years make a lease *at zuill,*and the lessee at will is ejected, the lessee for years cannot maintain an ejectment. *Gilb. Eject.*68, 69. 2 *Bulst.*225. *Salk.*258. A tenant at will may make a lease, and maintain an ejectment. *Cro.*Car. 705.

Possession is part of the plaintiff’s title in ejectment, and before he can recover he must shew a *possessory right*not barred by the statute of limitations. 2 *Burr.*668. And as every plaintiff in ejectment must shew a *right of possession,*the defendant need not plead the statute of limitations. 1 *Burr.*119. In ejectment the plaintiff recovers only *the possession*of the land, and the execution is only ®f the possession. *Id.*

The plaintiff must have a *right of entry*when the action Is brought; for if his entry is taken away, he is a disseisor if he enter to make a lease to try the title. 2 *Bac. Abr. 171. Gilb. Eject. 70.*It is therefore always necessary for the plaintiff to shew, that his lessor had a right to enter, by proving a *possession within twenty years,*or accounting for the want of it, under some of the exceptions allowed by the statute. 1 *Burr.*119. There can be no right of *291entry without a right of possession, and a right of possession is sufficient to maintain an ejectment. 1 *Cro.*437, 438. *Bateman*v. *Allen.*2 *Sound.*111. *Allen*v. Rivingtoji, *Gilb. Ten.*18. *Vaugh.*8. 50. 60. 299.

If the right of entry is taken away, the right of possession is gone also, and then the plaintiff must fail in ejectment ; for it is impossible for one out of possession to maintain a possessory action, such as an ejectment, as in the case of a demisé made before an entry. *Andr.*125. 2 *Stra.*1086. Whatsoever bars the right of entry, is a bar to the plaintiff’s title. *Gilb. Eject.*89. 2 *Bac. Abr.*196.

The act of limitations tolls entry, and bars an ejectment. And it is to be observed, that the law doth ever respect and favour long possession. The statute of limitations was declared by *Holt*to be one of the best of statutes, as it was made to avoid suits, and to. quiet men’s estates. The limitation of suits is founded in public convenience, and attended with so much utility, that Courts of Equity adopt the statute as a positive rule, and apply it by parity of reason to cases not within it. 2 *Burr.*961. All the statutes for limitation are founded on this ground, in favour of long possessions, for the repose of the subject, and to avoid uncertainties, which produce suits and contentions. *Jenkins,*48. c. 91. The statute of limitations says nothing about bills in equity, and yet they are construed to be within it. 1 *P. TTms.*744. A bill to set aside a conveyance made twenty years, on an allegation of the party being *non*compos, was dismissed. 1 *Eq. Abr.*306. The same length of time will bar the redemption of a mortgage in equity, as bars an entry in ejectment, at law. 2 *Tent.*340. 3 *P, Wms.*287.

It is found by the special verdict, that the defendant and liis ancestors have been in the peaceable, quiet, and uninterrupted possession of the lands from the year 1728 to the time of the verdict. This matter, on the part of the defendant, is to be considered in two ways:

1st. Whether the twenty years adverse possession found in the. defendant and his ancestors, is not a positive title in *292him. Cites 2 *SalL*421. S. C. *Holt,*264. and 1 *Raym.*741. 2 *Stra.*1142. 8 *Mod.*28/. *Finer’s Evidence,*196* pi. 12. 19/. pi. 13. «Scii. 423. 685. 11 *Mod.*104. *Jenkins,*' 16- P1- 28- *Comb.*395. 1 A. 2/0. 2 A. *Wins.*28/. 3 Aac. A¿r. 504. *Fin. Abr.*tit. *Account,*185. pi. /. S. C. 2 Ay. Air. 9. pi. 6. (?¿/¿. Ay. A<?/>. 224. *Fin.*tit. *Limitations,*112. 2 *Fern. 127. 6 Mod. 22. 11 Mod.*2.

2. It is to be considered in a negative light. Whether it should not appear, and be expressly found by the verdict, that the lessor of the plaintiff had been in possession within twenty years. *2 Bac. Abr. 171. 176. Gilb. Eject. 71.89.*3 *Keb.*364. 681. *Raym.*289. 1 *Burr.*110. *Hard.*461. *Seisin*means only possession. *Cowel’s Diet,*and *Jacob’s Diet.*- tit. *Seisin. Co. Litt.*114. b. 153. a. 29. a. *Fin.*tit. Limitations, 100. All the statutes of limitations prove it.

It may be contended by the plaintiff, that the statute of limitations will not bar him.

1. Because *Benjamin Howard*entered in the year 1/28, by virtue of a deed of bargain and sale from *Benjamin Johnson,*an infant, which is therefore void. 2 *Inst.*6/3. 3 *Bac. Abr.*144, 145, 146. *Raym.*313. That his entry made him tenant at will to *Johnson,*and his possession was the possession of *Johnson. Co. Litt.*56. b. That *Benjamin Howard*died in 1/38; the- statute, therefore, did not attach in his life-time.

2. Because it is only found that *John Howard,*his son, entered and *actually possessed and occupied till his death,*which finding does not amount to a disseisin, because there can be no disseisin unless there be an *ouster,*and an *ouster*is an entry and claimer, or the taking of profits. *Co. Litt.*181. a. And the statute will not bar unless there be an actual disseisin. 2 *Raym.*829. If a disseisin, yet it is at the election of *Johnson. 3 Cro.*302. 3 *Mod. 197. Litt.*sect. 588. *Carter,*162. 2 *Bac. Abr. 97,*98, 99, 100. 103. *Salk.*285. *Co. Litt.*186.

To the first objection, I admit, (only argumentatively,) that a deed of bargain and sale by an infant is void. I do *293admit that *Benjamin Howard*was tenant at will, and that the statute of limitations did not attach till his death.

To the second objection. The statute of limitations attaches from the time the right of entry first accrues. 1 Burr. and *Ray in.*288. and when the statute once attaches, it runs over all *mesne*acts, such as coverture, infancy, or bankruptcy. 1 *Lev.*31. *Salk.*420» 10 *Mod.*206. 1 *Stra. $56.*The right of entry of the plaintiff did accrue upon the death of Benjamin, and on the entry of *John*Howard, his son j the tenancy at will then ending, the adverse possession commenced. Cites *Co. Litt.*sect. 82. *Lev.*202. *Tin. Abr.*tit. Estate, 404. pi. 6. 405. pi. *7.*10. 12. 14. *Vin. Abr.*tit. Entry, 483. pi. 8, 9, 10, 11. 1 Salk. 245. *Gilb. Ten.*22. 46. The entry of *John Howard*was tortious, because he was a stranger, and was in no privity» Carter, 62. 66, *67.*Therefore the possession of *John Howard*cannot be deemed the possession of Johnson» The possession of A. can be the possession of B. in two instances only : by a tenancy for years, or by a tenancy at will. Here there is no tenancy for years, nor is there a tenancy at will; for a tenant at will is always by right and privity. *Co. Litt. 57.*b. 270. b. Twenty years adverse pos-* session is of itself a sufficient title, and therefore no disseisin is necessary; for possession for that length, of timéis a disseisin. *Burr.*119. It is found that *John Howard*entered, possessed, and occupied the land from the year 1738 till his death in the year 1764, which was twenty-six years. Disseisin is a fact, and this fact found amounts to a disseisin, *Co. Litt.*257. sect. 429. 3 *Lev.*35. *John Howard*must have entered either by right or by wrong, for there is no medium. If he entered of his own wrong, (which is very clear,) he is a disseisor. There is no middle kind of holding between a naked possession that disturbs nothing, and one which disturbs every thing. 1 Burr. 79. 100. *A.*wrongful entry can never gain any estate but a fee-simple. 3 *Mod.*92. A disseisor acquires but a bare possession against the disseisee; but against all others he acquires a fee-simple. 2 *Bac. Abr.*96.

*294But the plaintiffs, to avoid the statute of limitations, may contend that an entry was made within twenty years, that is, in the year 1748.

It is found by the verdict, that, in the year 1748, the negroes of *Thomas*Johnson, one of the plaintiffs, cut logs on *Howard’s*Range. Is this an entry sufficient to avoid the statute of limitations ? To avoid the statute of limitations, there must be an *actual entry. Vi.Mod.*573. The reason why an entry is necessary to be made within twenty years, to avoid the statute of limitations, is, that rights to lands may not lie dormant for a long time, and be started up afterwards to the prejudice of purchasers, and that it gives notice to the tenant in possession. *Andr.*131.

What is an *actual entry ?*See *Wood. Conv.*tit. *Entry,*14. 579. *Lilly’s Conv.*131. *Co. Litt.*i53. b. An actual entry is an act *in pais.*An entry was of equal solemnity with a feoffment. *Gilb. Ten. 39. Gilb. Eject.*41. There is no actual entry till possession. *Gilb. Ten.4>5.*The reason is, that possession ought to be avoided by possession, and such a possession can only be gained by an entry. *Plow.*137. 139. To avoid the statute of limitations, an entry of the same nature is requisite as to avoid a fine. To avoid a fine, there must be an express entry. 1 *Mod.*10. *Vent.*42. 2 *Stra.*1086. So must there be, to avoid the statute of limitations. To avoid a fine, there must be an express entry *animo clamandi.*Skinner, 412. pi. 8. 2 *Bac. Abr.*536. So of the statute of limitations, 6 *Mod.*45. *Salk.*285. The *animo clamandi*is a fact to be collected by the Jury. 5 *Bac. Abr.*228. There is a great difference between an entry to purge a disseisin, and an entry to avoid a fine. *Andr.*136. There is also a great difference between an. entry to avoid a condition, and an entry to avoid the statute of limitations. To avoid a condition, the confession of lease, entry, and ouster, under the rule in ejectment, will be sufficient; but to avoid the statute of limitations, it will not. *Wood. Conv.*11. The confession of lease, entry, and ouster, is only designed for expedition in the trial of right, and not to give the plaintiff a right of action, which *295be had not at law. *Bac.*Abr. 171. An entry by a friend to avoid a fine, without *appointment precedent,*or *agreement*subsequent, will not avail. *Wood. Conv.*580. 592. *Pop.*108.

An entry to avoid the statute of limitations ought to have the concurrence of three particulars: 1. That the entry be an *actual*entry, and made *animo clamandi.*6 *Mod.*45. *Salk.*285. 2 *Str.*1086. S. C. *Andr.*125. 2 Nztrr. 706. 2. That an action be commenced on such entry. 3. That such action be commenced within one year. *Fin. Evidence,*246. pi. 4. stat. 4 *Anne,*c. 16. which speaks of an entiy to avoid a fine, and of the statute of limitations, as of one nature. By the stat. of Anne, a claim or entry to avoid a fine shall have none effect, unless an action be commenced within one year after. 2 *Stra.*1086. By 21 *Jac.*I. c. 16. no entry shall be made upon lands, unless within twenty years; and by the statute for the amendment of the law, no entry will be of force to satisfy the statute of James, unless an action be brought within one year after, and be prosecuted with effect. 3 *Bl.*Com. 178.

A further objection is, that the act of the negroes was no entry, because it was not found to be by the command of Johnson, and the command is a fact which the Court cannot presume. *Gilb. Eq. Rep.*256. *Gilb.*Evidence, 104. 181. 183. 185.

But it may be contended by the plaintiffs, that the act of the negroes in the year 1748 was a sufficient entry, because, as *Johnson*is liable to trespass, the law, *to*prevent that, will construe that act an entry. *Fin. Abr.*tit. Entry, 454. pi. 1, 2, 3. 454. pi. 17. 456. pi. 20, 21. *Co. Lift.*245, 246. *Fide Plow.*92, 93. *Nay’s Mux.*44.

To this it is answered, that a master is never liable for his servants, unless they are acting by his *command*or *privity. Fin. Abr.*Trespass, 460. pi. 1. The command of the master is a fact not found, and therefore the Court cannot presume it. But supposing this act of the negroes to be an entry, yet it can be deemed at most only an entry in law. I have shewn that an entry in *deed*is requisite *296t0 avoid the statute of limitations, and that entry must be *animo clarnandi.*For the difference between an entry in deed- and an entry in law, see *Co. Litt. 253,*b, sect. 419, But if the act of the negroes was sufficient to avoid the statute of limitations, it might have been, for aught that appears, against the will, and without the con» sent of *.Johnson, 1 Leo.*110. .A master is civilly, though not criminally, answerable for his servants, *2 Salk.*441, 1 *Vent. 295. 2 Lev.*172. 3 Keb, 65. The case of *negroes*here, is not similar to the case of servants in *England,*because here negroes are an object of property ; they have nq will, and their masters are answerable for any trespass they commit, whether it be with their knowledge or com sentj or not, in the same manner as they are for their beasts. Were it otherwise, an injury might be committed, for which there would be no remedy, In *England,*the master is not liable for a trespass done by his servant, unless it be by his command, or with his assent. *Fin, Trespass,*460, In such case, the servant himself is liable to an action, but no action will lie here, against a negro.

Second question, — Whether the deed of bargain and sale by *Benjamin Johnson,*an infant, was *void,*or *voidable*only. That it is only voidable, see *Gilb. Evid.*186. 2 *Bac.*Abr, 136. 2 *Roll. Abr.*572. 8 *Co,*42. 3 *Mod.*311. '1 *Mod.*25. *Co. Litt.*51. 171. 3 *Bac. Abr.*137, 2 *Inst.*483. 673. 2 *Stra.*939. 3 *P. Wms.*208. *Cro. Jac.*364. *Fin.*tit. *Infant,*386. pi. 23. If the deed be voidable, it must be avoided by entry or by claim, Estates of freehold cannot cease without entry or claim. *Co. Litt,*218. a, 214. b. 3 *Co.*6. 59. 2 *Co. 53.*b. 54. a. 1 *Co.*94. b. *Moor,*292. 345, 346.

An ejectment will not lie by *one tenant in common*against *another,*without an *actual ouster, Co, Litt.*199. b. *O. Law Eject.*101. *Faresly,*39. *Cro. Eliz.*220, *Salk.*392. 423. Ld. *Raym. 830.*Allen, 8. *Fin.*Joint-Tenants, 512. *Gilb. Eject.*85, 86. *Gilb. Evid.*10. 237, 238. 7 *Mod.*39. 12 *Mod.*657. *Fin. Evid.*151. pi. 30. 169, pi. 25. 3 *Bac.*220. 219. 211.

*297The Provincial Court gave judgment upon the special Verdict for the defendant. The plaintiff appealed to the Court of Appeals, which Court, at *May*term, 1771, reversed the judgment so far as it related to *Thomas*Johnson, and affirmed it so far as it related to *Benjamin*Jghnson•