delivered the opinion of the court:
This case comes up on a writ of error sued out to the Pulaski Circuit Court. The plaintiff in the court below brought an action of trespass cjuare clausum fregit against the defendant for entering his close, cutting down his trees, splitting them into cord wood, selling and carrying away the same, and keeping a woodyard on the premises described in the declaration.
The declaration contains two counts, and though somewhat inaccurately and informally drawn, is deemed nevertheless to be substantially correct. The defendant filed two pleas in bar of the action.— The first was a plea of the general issue, and the second, a special plea of not guilty to all the trespasses alleged to have been committed in the declaration, except that of carrying away the cord wood, and as to that, justifying that he cut and split the cord wood on the land while it was apart of the public domain of the United States; and that after it was sold to the plaintiff, he had specially entered and taken it away as of right he might lawfully do. The plaintiff took issue on the general plea of not guilty; and to the second plea he put in a demurrer, and the demurrer after argument was overruled and the plea adjudged sufficient. Whereupon the plaintiff replied generally, and the defendant joined issue. The parties then proceeded to, trial uPon issues thus found* and after hearing the evidence, the jury found for the plaintiff, and assessed his damages at eighty dollars. — • Thereupon-judgment was entered up for the plaintiff, and the defendant then moved the court to arrest the judgment, which motion was overruled, and to the opinion thus given he excepted, and placed his bill of exceptions upon the record. During the progress of the trial; the defendant moved the court to instruct the jury, that in order to entitle the plaintiff to a verdict, he must have been in actual possession-of the premises at the time the trespasses were alleged to have been-committed, which instructions the court refused.to give, but instructed the jury that such proof was not necessary to enable the plaintiff to-maintain his action. To this decision of the court the defendant also excepted, and filed’ his bill of exceptions, which was regularly signed by the judge and made a part of the record. The assignment of errors questions the correctness of the decision of the court below upon the grounds — 1st, in giving to the jury improper instructions; 2nd, in-pronouncing judgment on an invalid verdict; 3rd, in not arresting the ’ judgment on the defendant’s motion. These questions we will now severally examine in the order they are presented. The instruction given to the jury is, that it is not necessary for the plaintiff to prove actual possession of the premises at the time the trespasses are alleged to have been committed in ordervto enable him to maintain his action.. The doctrine in relation to this subject has.been fully examined during the present term, in the case of Ledbetter vs. Fitzgerald, and the rule as there laid down is considered perfectly correct, and entirely applicable to the case now under consideration. It is true that, by the common law actual possession or constructive possession by operation of law as by conveyances under the Statute of uses, was necessary to be proved to maintain trespass; for before entry and actual possession,, one could not maintain .an action of trespass, though he had the freehold inlaw. 3 Black. Com. 211, 12; 2 Saunders on Pleading, 868; 1 Saund. Rep. 322; 2 T. R. 13; 8 East. 109; Bacall’s Abrid, title C. 3. But the doctrine is now wholly exploded by the courts of our own country, for as an actual entry into wild and uncultivated land would give no notoriety to the possession or the change of property, it is declared to be an impracticable andan utterly useless thing; and of course a plaintiff may maintain tréspass. in such cases without actual possession of the premises — without ever having made an entry upon the land. For not to giye him such a right would be to expose his ■possession to serious and destructive injury without any adequate rem■edy or redress. For if he is seized by a lawful estate of inheritance or in fee, the law presumes that he is rightfully in possession to the extent ■of his boundary, and his seizin is not confined to his mere occupancy, or actual cultivation; but if he enters without title, he is then confined by metes and bounds strictly to his actual possession.
It necessarily results from the position, that a party may maintain trespass upon a mere constructive or legal possession, without ever having been actually in the possession of the premises, and as the title of-the plaintiff is shown and admitted by the plea, that therefore it was unnecessary to adduce any evidence of it. The opinion of the, court was therefore correct in the instructions given to the jury on this point. <
Upon the second assignment of error, it is contended that the verdict is not responsive to the issues joined,, and of course no valid judgment can be rendered in the case. The record shows that the .jury weresworn to try the issues joined, and that they find forthe plaintiff, and assess the damages by him sustained at the sum of eighty dollars. This finding evidently covers both issues, for they were sworn to try the issues made up by the pleadings; and the response is, they find for the plaintiff. A general verdict is held to be good on two issue, where the finding necessarily shows that the subject matter of both issues was determined by the verdict; and so it was ruled in the case of Login vs. Elder, 1st Burrow, 383; 1st J. J. Marshall, 314, 18, Bates vs. Lewis. And in the case of Dyer vs. Hatch, decided during the present term, the doctrine, as laid down in the cases above cited, is enforced and illustrated; and the case now under consideration clearly falls within the principle, and reason of the rule there stated. The verdict in this case is unquestionably good, for it finds the facts put in issue by the parties in such a manner that a valid judgment can bo pronounced in 'the case.' It is, therefore, believed there is no error in the assignment which questions the sufficiency of the verdict. The decision of the two first assignments necessarily disposes of the defend, ant’s motion to arrest the judgment; for if the instructions given to the jury were correct, and the verdict sufficient, it is clear that there is no ground for arresting the judgment; for there are no other errors apparent upon the record as put in issue by the pleadings. The judgment of the court below must, therefore, be affirmed with costs.