Merritt v. Carpenter. tiff in this action, issued out of this court to the sheriff of the county of Westchester, upon a judgment for costs, rendered in another action, wherein Sylvanus Merritt was also the plaintiff and the defendant Isaac Carpenter was also defendant, brought to recover the possession of real property, and damages for the unlawful withholding the same. It appeared upon the trial that Reynolds, the other defendant, was duly authorized by the sheriff of the county of Westchester to execute the writ or process, by an indorsement thereon which created him a special deputy for that purpose. I propose to consider only whether Merritt, the plaintiff, was subject to arrest and imprisonment in satisfaction of the judgment recovered against him. - Until the passage of the act of the 26th April, 1831, "to abolish imprisonment for debt and to punish fraudulent debtors," a capias ad faciendum, upon which the judgment debtor might be arrested and imprisoned, was one of the usual and customary remedies to enforce the judgments of the courts, whether arising ex contractu or ex delicto. That act declared that "no person should be arrested or imprisoned on any civil process issuing out of any court of law, or on any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of any damages for the non-performance of any contract," There were some contracts and some persons excepted from the provisions of the act, but the general rule was to abolish imprisonment in actions arising upon contract or upon judgments founded upon contract, and retain the remedy as to actions arising or judgments founded upon tort. So the law remained until the adoption of the code of procedure, in which the distinction to which I refer is still retained, with some modifications. Section 179 provides, amongst other cases, that the defendant may be arrested "in an action for the recovery of damages on a cause of action not arising out of contract, where the defendant is not a resident of the state or is about to remove therefrom Merritt v. Carpenter. -or where the action is for an injury to person or characteror for injuring or for wrongfully taking, detaining or converting property." The words "wrongfully taking, detaining or converting property" must be construed to apply to personal property exclusively, because the terms are not applicable to real property, which cannot from its nature be taken, detained or converted. But the words "for injuring property" must have a more general and universal signification; applying to real property and also to personal property when the latter is injured and its value is impaired or destroyed, but is not taken, detained or converted. This view is confirmed by reference to section 464, which declares that "the word property, as used in this act, includes property real and personal." The code vainly essays to take away and abolish the distinction between actions at law and suits in equity, and the forms of actions and suits as they existed when it took effect. But legal and equitable remedies, and the various forms of action, are real and substantial things, and will not be abolished. They still continue to exist, claiming daily, constantly and perpetually, the notice and recognition of the judicial mind, and without such notice and recognition, justice and truth— the life and spirit of the judicial administration-would die out and disappear. Remedies for the redress of particular injuries may be designated by new names, but they are still substantially the same. Thus the remedy known to the code as an action to recover real property or the possession thereof, is the old action of ejectment, under another name; and whether we call it by one name or the other, the thing itself remains what it always was. So too the claim to recover damages for withholding real property mentioned in subdivision 5 of section 167, is the action or suggestion to recover the mesne profits, known to the old law. The section (179) of the code to which I have referred provides then, that for injuries to real property a defendant may be arrested, and section 288 also declares that "if the action be one in which the defendant might have been arrested as provided in sections 179 and 181, Merritt v. Carpenter. an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part." The action of trespass quare clausum fregit is plainly one in which the defendant may be arrested and held to bail, and in the event of a judgment against him, may also be taken in execution and imprisoned in satisfaction of the judgment. And for no other reason than because an unlawful entry upon the lands of another is an injury to real property, within the meaning of section 179. Now if it shall appear that the common law action of ejectment and the action to recover the mesne profits were substantially actions of trespass for unlawful entries upon real property, then I think it will be decisive of the principal question in controversy in this action. The common law action of ejectment was in every sense an action of trespass, because it implied a wrongful entry and an eviction or ouster of the true owner. Mr. Blackstone (Com. vol. 3, p. 199) describes the action thus: "A writ of ejectione firmæ, or action of trespass and ejectment, lieth where the lands or tenements are let for a term of years, and afterwards the reversioner, remainderman or any stranger doth eject or oust the lessee of his term. In this case he shall have his writ of ejection to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired and ejecting him. And by this writ the plaintiff shall recover back his term or the remainder of it with damages." And he adds, that upon the disuse of real actions, this mixed proceeding became the common method of trying the title to lands and tenements. This was effected, whatever the nature of the estate claimed might be, by means of fictitious parties and a consent rule in which the real defendant agreed to confess upon the trial, lease, entry and ouster, which left the title of the plaintiff the only subject in controversy. Mr. Runnington, in his treatise on the action of ejectment, (page 23,) says: "By the modern practice the defendant is obliged by rule of Merritt v. Carpenter. court to confess lease, entry and ouster; yet that rule was only designed to expedite the trial of the plaintiff's right, and not to give him a right which he had not before. Hence it must appear that the plaintiff had actually the possession and was ousted thereof by the defendant; for the action of ejectment is an action of trespass in its nature, and is said to have been committed vi et armis." The revised statutes, which took effect in 1850, made some changes in the mode of proceeding. They substituted the names of the real for the fictitious parties, and abolished the consent rule. And they also provided that instead of the action for mesne profits theretofore used, the plaintiff should, within one year, make and file a suggestion of such claim, upon which his right was to be determined. But they still required that an ouster, or its equivalent, should be proved upon the trial. Trespass is the proper remedy to recover damages for an illegal entry upon or injury to real property. (1 Chitty's Plead. 173.) Such an entry is deemed to be committed with force, actual or implied. The action to recover the mesne profits or damages for withholding the possession, was also an action for trespass. In order to complete the remedy when the possession has long been detained from him that had the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has also received. In this case the judgment in ejectment is conclusive evidence against the defendant for all the profits which have accrued since the date of the demise stated in the former declaration of the plaintiff. (3 Black. Com. 206.) "The action for mesne profits certainly results from, or is rather consequent to, the recover in ejectment. It is an action of trespass vi et armis, brought by the lessor of the plaintiff in his own name, or in the name of the nominal lessee, against the tenant in possession, to recover the value of the profits unjustly received by the latter in consequence of the ouster complained of in the ejectment." (Runnington on Eject. 438.) Before entry and actual possession, a person cannot maintain trespass, though Merritt v. Carpenter. he hath the freehold in law. A disseisee may have trespass against the disseisor for the disseisin itself, because he was then in the actual possession; but not for an injury after the disseisin, until he hath gained the possession by re-entry. And then he may support the action for the intermediate damage; for after the entry, the law, by a kind of jus post'limini, supposes the freehold to have all along continued in him. And after recovery in ejectment, the action may be supported for mesne profits, though anterior to the time of the demise in the declaration in ejectment, unless when a fine has been levied, in which case trespass cannot be supported for an injury committed anterior to the entry to avoid the fine. (1 Chitty's Plead. 177, and the cases referred to in the notes.) I refer to these authorities to show that an action to recover real property, or the possession of real property, with damages for withholding the possession, is in fact an action of trespass, because it assumes and proceeds upon the idea that the entry and the withholding is wrongful and unlawful, and an action of trespass is an action for an injury to real property. The code disdains to employ the terms trespass quare clausum fregit, trespass and ejectment or mesne profits, but substitutes in their place the words "claims to recover real property, with the damages for withholding thereof, and injuries to property." Upon the trial of this action the defendants produced and read in evidence the record of the judgment in this court, upon which the execution against the body of the plaintiff was issued, and under which the defendants claimed to justify the arrest. The complaint, which discloses the real nature of the action, after stating that the plaintiff was lawfully seised of as owner in fee simple, and entitled to the possession of certain lands in the town of Rye, county of Westchester, proceeds to say, "that the defendant, on or about the 31st day of August, 1851, entered into and upon the said premises, and every part thereof, and ever since has continued, and now is, in possession thereof, and every part and portion thereof, in violation of the rights of this plaintiff, and unlawfully with |