This case depends on the question whether the plaintiff, at the time of the trespass alleged in his declaration, was in the lawful possession of the locus in quo.
It is objected by the defendants’ counsel, that the plaintiff’s title, under the levy of his execution against Peabody and others, is not valid, the- same not having been levied according to law. The objection is, that a reasonable time was not allowed to the execution debtor to appoint one of the appraisers. But this objection is not supported by the officer’s return of the execution. He certifies that he duly notified the execution debtor to choose one of the appraisers for himself, and that he neglect ed and refused so to do. This certificate must be taken to be rue, and it is wholly inconsistent with the objection alleged. *604The execution debtor not only “ neglected ” but “ refused ” to avail himself of his legal privilege.
It is also objected that the plaintiff, at the time of the alleged trespass, was disseized by 5ohn Smith, the principal defendant. But, admitting that the previous acts of said Smith amounted to a disseizin, it was proved that the plaintiff had regained the actual seizin of the locus, before the commission of the trespass. The jury were instructed, on this point, that if they were satisfied, upon the evidence, that the plaintiff, before the said hay was taken from said land, peaceably entered thereon, no person being then on said land, and took possession thereof under his said title ; and the defendants afterwards, without his consent, and against his prohibition, entered on the land, and carried away the hay ; they were trespassers, and the plaintiff was entitled to a verdict. And we are of opinion that these instructions to the jury were perfectly correct. If the plaintiff, having the legal title, entered on the locus, and took possession, no one then being on the land, he unquestionably thereby acquired the actual possession.
It has been argued that this case- is within the Rev. Sts. c. 119, § 8. But if that section is in any case a bar to an action of trespass, committed by a disseizor, after an entry by a disseizee, it is no bar to this action. The plaintiff does not rely on a mere entry on the land, John Smith being in possession ; but that he took actual possession, peaceably, no one being in possession at the time. And we cannot doubt that he thereby acquired the legal possession of the close, and that this action is well maintained. The entry and possession intended by >§> 8, of c. 119, must be understood as a mere formal entry and momentary possession, and it is so explained by the commissioners, <n their note on this section. This section, therefore, has no application to the present action : and there can be no doubt that, by the principles of the common law, the owner of land may lawfully enter upon it, and take possession of it, no one being then thereon, and that such an entry and possession will avoid all disseizins and unlawful estates, and will restore the «■¡ght owner to the same situation as if he had not been dis-seized. Exceptions overruled