Whether the pleader intended to get the start of all the reformers of the day, may be a doubtful question; but he has evidently been at some pains to keep clear of legal precedents, and has framed the declaration after the pattern of the earth at the time when it was “ without form and void.” It will -not be necessary, however, to look at any question of mere form, for the declaration is bad in substance.
The pleader has called this an action of trespass, and it certainly comes nearer to that than it does to anything else ; and then the difficulty is, that as the premises are in the occupation of tenants, and the plaintiff has no possession in fact, he cannot maintain the common law- action of trespass.
If this can be regarded as an action on the case, the declaration will still be bad; because it alleges an injury to the property generally, and neither limits the complaint to an injury done to the plaintiff’s reversionary 'estate and interest in the property, nor avers that there was any injury to that estate or interest. All the precedents are against the pleader, (8 Went. Plead. 587; 2 Chit. Plead. 777, ed. of 1837; 2 Humph. Pre. 746.) In Jackson v. Pesked, (1 M. & S. 234,) judgment was arrested after verdict, for the want of an averment that the plaintiff was injured in his reversionary- estate and interest in the premises.
This is something more than a nice point in pleading. The tenants are entitled to damages for the disturbance in the present enjoyment of the property ; and the landlord is only entitled to -damages for such injury as may have been done to the *637reversion. The averment in question should be made not only for the purpose of stating truly the case on which the party claims to recover, but also for the purpose of limiting the recovery to the proper amount of damages. In Jackson v. Peeked, no doubt was entertained but that the declaration would have been bad on demurrer; and the question was whether, after verdict, the court could not infer that the plaintiff was confined at the trial to the proof of such an injury as would be prejudical to the reversion, and that all evidence short of that effect had been excluded. The court did not find itself able to make that inference. After examining the cases, lord Ellenborough said, there was no authority upon which they would be warranted in presuming that the jury were confined to such injuries as would necessarily prejudice the Reversion, as the charge in the declaration was conceived in such terms as to include injuries which were not necessarily prejudicial to it, but more aptly and naturally applied to injuries to the possession only. He added, that as the plaintiff had not charged that the reversion was prejudiced, or that the plaintiff was damnified in respect thereof, the court was not warranted in inferring that such a prejudice, out of the natural and ordinary scope of the allegation, must have been proved. All this is applicable to the case in hand.
It is possible, and perhaps probable, that some of the acts complained of would injure the plaintiff's reversionary interest in the property. But that is more than we can certainly know; and it is not a matter which should have.been left to inference. There should have been a direct averment. And, besides, if we could see that all of the acts must have been proved prejudicial, in some degree, to the reversioner, we can see still more clearly that they must also have been injurious to the tenants ; and then, as the plaintiff has not restricted himself to a claim as reversioner, he may recover, upon the declaration as it now stands, not only his own damages, but the damages which have been done, and which belong to the tenants.
If the.plaintiff had sued on the statute which gives an action of trespass to a reversioner for an injury done to the inherit*638anee, (1 R. S. 750, § 8,) the declaration would be insufficient, ■because it neither avers that an injury has been done to the inheritance, nor limits the claim to damages for such an injury. What has been said under the last head, is equally applicable here.
In going beyond the authorities, and showing that they are right in principle, it must not be understood that I think such a course at all necessary. If this were no more than a question of form, I should feel bound by the law as I find it, without regard to my own notions of what it ought to be. Reforming and amending the laws is a work which belongs to the legislature, and not to the courts. However it may be with others, I am bound by established precedents. When the new code of procedure comes into operation, I shall follow it as well as I know how. But, until then, I shall follow the law as it is, without regard to the fashion or temper of the times.
I am of opinion that the judgment of the supreme court is right, and should be affirmed.
Decision—Judgment affirmed. For affirmance—Bronson, Jones, Ruggles and Gray. For reversal—Jewett, Gardiner, Wright and Johnson.
Note.—Bkomsoíí, J., held that the declaration was bad in substance, as well as in form. If the action was called trespass, the plaintiff had not the possession in fact, and could not maintain the common law action of trespass.
If it was called an action on the case, it was bad because it alleges an injury to the property generally, not limiting to an injury done to plaintiffs reversionary estate and interest in the property, nor avers that there was any injury to that estate or interest.
Not reported.