delivered the opinion of the court.
At the common law, actual possession is, in genera], necessary, in order to maintain trespass guare clausumfre-giL A disseizee may maintain trespass against the dis-seizer, for the disseizin itself, but not for any injury done afterwards until he has gained possession by re-entry.
However, after a re-entry, the law, by a kind of jus posilhninii, supposes the freehold and possession to have all along continued in the disseizee, and he may maintain trespass for the intermediate damages. 1 Chitty’s Pl. 177; 11 Coke, 51.
At the common law, an heir, a devisee, or lessee cannot maintain trespass until an actual entry is made. Com. Dig. “Trespass,” B, 3; 1 Ch. Pl. 176—177.
But in this state the law is otherwise, and in order to convey land, or maintain trespass, an actual entry is, in general, not necessary. A disseizee may convey land without an actual entry. 1 N. H. Rep. 178 5 ditto, 188.
If an heir may maintain trespass, without showing an actual entry, it will be difficult to find a sound reason why a demandant, in a writ, may not, after judgment, maintain trespass for the mesne profits. The judgment settles, conclusively, the right of possession at the time it is rendered. 7 Cowen, 38.
We are of opinion that it was not necessary, in this case, to show a writ of seizin executed, nor an entry after the judgment.
But it is said that trespass, for mesne profits, does not lie, after a judgment in a writ of entry. This exception
Judgment on the verdict.