of Pickens. To this declaration the defendants demurred, and the court sustained the demurrer, and gave judgment in favor of the defendants. The judgment on demurrer is the cause assigned for error. The exceptions taken to the declaration are understood to be: 1. That no action was sustainable against the defendant's securities until the liability of the principal was first fixed by a separate suit against him, establishing the fact and amount of his default. 2. That the breach assigned was too general and indefinite in not identifying the several executions on which the money claimed is alleged to have been collected.

The doctrine relied on in support of the first exception is believed to relate mainly, if not exclusively, to proceedings against executors and administrators. Admitting such to be the course of proceeding in Virginia, and some of the other states, in relation to executors and administrators, and that in this state a different mode of proceeding, but one calculated to ascertain the amount due from executors and administrators, is required before suit can be brought on the bonds against the securities, the remedy against sheriffs and their securities is not necessarily the same. The various statutes in force in this state respecting the liability of the latter, breathe a different intent. They authorize joint proceedings in the first instance against sheriffs and their securities, even in the summary mode, by motion. The act "to provide for the appointment of county officers and for other purposes," passed in 1819: Toul. Dig. 676; by the eighteenth section thereof directs that when any sheriff shall fail to perform the duties required of him, the person aggrieved may move against such sheriff and his securities in office for the amount he has failed to pay over, or for failing to return any execution as required by law, upon giving three days' notice of such motion to the delinquent sheriff or his securities in office.

It is true this was not a proceeding under this statute, but there is other statute authority for the institution of the ordinary action of debt on the office bond against the sheriff and his securities, which does not recognize the necessity of a previous suit against the principal alone; and surely it could not have been the intention of the legislature to subject the securities to an original joint responsibility with the principal, when the remedy was sought by motion, and not when by the ordinary action of debt. The latter mode, by giving more time to the defendants for preparation, and a trial by jury, is better calcu

lated to insure justice, nor can it be supposed that either the principal or his securities would be less competent to make effectual defense when jointly sued in the first instance than in any other mode.

2. As to the objection that the breach assigned by the declaration is too general, in not identifying the executions on which it is alleged the sheriff collected the money, which he refused to pay over, the authorities appear fully satisfactory. It will suffice to notice but one. The case of Hughes v. Smith & Miller, 5 Johns. 168, was an action of debt by a sheriff against his under sheriff and his security, upon an indemnifying bond by the latter to the former. It stipulated that if Smith, the under sheriff, should in all things execute the office aforesaid during his continuance therein, according to law, so that the principal should not be made liable for the payment of any damages or money, in consequence of any of the acts of his said under sheriff, then the obligation to be void. The plaintiff assigned for breach of the bond that Smith neglected to account and pay to the plaintiff, or to the several plaintiffs and others, divers sums of money, amounting to a thousand dollars; but did not allege on what writs or executions he collected, or of whom he received the said thousand dollars, or that he received the same on any execution or other process whatever, on demurrer.

Chief Justice Kent delivered the opinion of the court, and held the assignment sufficient. He said such general assignment is now sufficient, in order to avoid a cumbrous prolixity upon the record. His language is: "The breach is assigned in the words of the condition, and the assignment necessarily amounts to a breach; and where that is the case, the general rule is, that the plaintiff may assign the breach generally by negativing the words of the covenant; and were this assignment bad on special demurrer, certainly it is good on general demurrer:" See the Post-master v. Cochran, 2 Johns. 413; Shum v. Farrington, 1 Bos. & Pul. 646; and Barton v. Webb, 8 T. R. 459; Smith et al. v. Jansen, 8 Johns. 111. The rule permitting such general assignment of the breach, by merely negativing the words of the covenant, is founded not alone on the objection of prolixity, and the inconvenience of specific assignments, containing a description of the various items constituting it, but also on the consideration that in cases like the present the particular nature and extent of the default is presumed to be equally, if not more certainly, within the knowledge of the defendant than of the plaintiff.

According to this view of the case, the judgment below must be reversed, and the cause remanded.

DUNCAN V. POTTS.

[5 STEWART & PORTER, 82.]

TRESPASS QUARE CLAUSUM FREGIT LIES FOR AN OCCUPANT of government land against any person wrongfully dispossessing him.

AN OCCUPANT OF PUBLIC LANDS is a tenant at will of the government.

THE facts appear from the opinion.

Stewart, for the plaintiff in error.

Freeman, contra.

SAFFOLD, J. The question presented for consideration relates to the sufficiency of the plaintiff's amended declaration.

The action is trespass. The declaration contains two counts, charging, in substance, that Duncan, the plaintiff, was peaceably and lawfully possessed of a certain improvement, consisting of twelve acres of cleared land, which was inclosed, etc.; that it was part of the public lands belonging to the government of the United States, which he held as tenant at will to the government aforesaid; situated, etc.; and that he being so peaceably and lawfully possessed thereof, as aforesaid, the said defendant, on the day of, aforesaid, and on divers other days and times between that day and the commencement of the writ, in the county aforesaid, with force and arms, broke and entered in and upon the said improvement, and then and there ejected, expelled, and dispossessed the plaintiff of the same, and kept him out, thereby depriving him of the use, enjoyment, and profits of the same for a long time, to wit, for twelve months, etc.

The declaration contains various other averments, such as are used in declarations of this description; it makes reference to a recovery by the plaintiff, against the defendant, of the premises in question, in an action for a forcible detainer; and charges that the plaintiff had been obliged to expend large sums of money in and about the said recovery, etc. To this declaration the defendant demurred, and the court sustained the demurrer and gave judgment for the defendant.

Under this assign

This judgment is now assigned for error. ment two questions only have been discussed by the counsel: 1. Is an occupant of the public lands of the United States entitled to prosecute the action of trespass? 2. Is it necessary that

one suing as tenant at will should aver, in his declaration, that he held the land by grant?

1. It is a fact of general notoriety that a large portion of the inhabitants of this state have been occupants of the public lands; that most parts of our country were settled before the government had parted with her title to the soil; and that, even now, considerable numbers continue to occupy and cultivate the public domain, without any objection or interruption from the government. Without legal protection to persons in this situation, strife and contention would be incessant, the peace and quiet of society would be constantly disturbed, and the strong and violent would give law to the weak and inoffensive.

But it is not only here, but elsewhere, that many may be found in the occupancy of lands to which they can show no legal title; and wherever this is the case, if prior peaceable possession did not give a preference in the right of enjoyment, the same consequences would arise. This is the reason of the common law, that any possession is sufficient to sustain trespass against a wrong-doer, or a person who can not make out a title prima facie, entitling him to possession. It is held that

a tenant for years, a lessee at will, and a tenant at sufferance, may support this action against a stranger, or even against his landlord, unless a right of entry be expressly or impliedly reserved:" 1 Chit. Pl. 178, and authorities.

Also it is said: "The action of trespass vi et armis is termed a possessory action, to distinguish it from those actions in which the plaintiff must show a title. Being founded on an injury to the possession, it is essential that the plaintiff should be in possession of the close at the time when the injury is committed; but as against a stranger or wrong-doer, it is immaterial whether such possession be founded on a good title or not. Even a tortious possession will support trespass against a wrong-doer:" 2 Wheat. Selw. 1018. Various other authorities to the same effect might be cited, but the principle is considered too clear to require it.

2. It remains to be considered how a tenancy at will, for the purposes of this action, can be created. The defendant's counsel insists on the authority of Chancellor Kent, 4 Kent Com. 210," that a tenancy at will can not arise without express grant or contract, and that all general tenancies are, constructively, tenancies from year to year."

Such, it is true, is the language of that learned commentator. He, however, in the same page, explains and shows that this

was not the original nature of estates at will; that Lord Mansfield had observed, 3 Burr. 1607, "that an infinite quantity of land was holden in England without lease;" and that they were all, therefore, in a technical sense, estates at will, but such estates are said to exist only nationally; and where no certain term is agreed on, they are construed to be tenancies from year Further, however, he says (p. 112): "The reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year. If the tenant be placed on the land, without any terms prescribed, or rent reserved, and as a mere occupier, he is strictly a tenant at will."

A strict tenant at will, in the primary sense of that tenancy, is not entitled to notice to quit; nor is a tenant whose term is to end at a certain time; for in that case both parties are apprised of their rights and duties. The lessor may enter on the lessee when the term expires, without further notice. Except for the purpose of notice to quit, tenancies at will seem even still to retain their original character. See Jackson v. Bradt, 2

Cai. 169; Nichols v. Williams, 8 Cow. 13.

The principles of the English decisions, which are said in many cases to have converted tenancies at will into leases from year to year, can have no application to an interest like the one in question to an interest accruing to one from his occupancy and improvement of the public domain; the absence of any obligation to pay rent, or of any necessity for notice to quit, distinguishes this from the modern idea of a tenancy from year to year. While the government chooses to regard the occupier not as a trespasser, but to permit him to continue in the possession and enjoyment of the land, such acquiescence can constitute no other than a tenancy at will according to the original notion of such estates.

As an indication of the general assent of the government to the existence of such tenancies, reference may be made to the several acts of congress of recent date, allowing to such occupants a preference in becoming the purchasers of the lands so occupied; also to the act authorizing the executive, when deemed necessary, to remove settlers from the public lands; and to the orders which, at different times in the history of this country, have been issued for the removal of such as have acted offensively to the government, or who have asserted any right of the soil inconsistent with the nature of a tenancy at will.

It is also worthy of notice that the judicial decisions of this