No revoca

in 3 Wilson 497. There was a special verdict. tion was found, nor the existence of revocable words, nor what were the provisions of the second will or any of them. And the jury stated expressly that they did not find that the testator cancelled the second will, and that they were altogether ignorant as to what had become of it. The point in question was not in the case, and Lord Mansfield's observations, as reported in Cowper, were purely dicta.

A little earlier, and in Easter term of the same year, the King's Bench had the case of Burtenshaw v. Gilbert before it. Cowper 49. One Newenden made his will in 1759, in duplicate, giving one part to the scrivener to keep, and retaining the other himself. He observed that it did not suit him, and that he made it to keep his wife easy. His wife died. Thereafter, and in 1761, he produced the part of the old will in his possession, and made another will with different devises. He tore off his name and seal from the part which was present of the old will, and caused the names of the witnesses thereto to be cut off. He made some explanations to the scrivener, and placed the new will in his custody. Some changes occurred thereafter, and one of the objects of his bounty died. He sent for the second will, and afterwards for an attorney to draw another, who however did not reach him until he was too far gone to do anything. After his death one part of the first will and the second will were found together in a paper, both cancelled. The other part of the first will was found uncancelled in the testator's room, with other deeds and papers. The question for the court was whether the first will was revoked. Lord Mansfield observed, among other things, that "if the testator had died immediately after he made the new will, whether he had cancelled the former or not, it would have been revoked; because at the end of the second will, there is a declaration by which he revokes all former wills. Besides this he deliberately cancels that part of the will of 1759 which he had in his own possession. The facts are too many and too strong to admit of a question, but that, at the time of making the second will, the first was upon every principle of law

clearly revoked, and can never be set up again but by a new will." The court takes notice, it is true, of the act of mutilation of the one part of the old will, but the circumstance on which stress is laid is the existence of revocable words in the new will, and there is strong ground for inferring that the result would have been just the same if the act of spoliation of the one part of the old will had not been committed.

In Goodright on the demise of Glazier v. Glazier, reported in Burrow 2512, it does not appear that the second will contained a clause of revocation.

There seems to have been a material distinction, and on good ground, between the state of a former will after a second one merely inconsistent with it, and its state after a second one with a declaration expressly revoking it.

In the first case the only chance for the second to operate in revocation of the first, according to the prevalent theories of the courts, was by its coming to a head as an active will, which it could do only by surviving its author. Being the last expression of the decedent and at the same time practically inconsistent with the prior one, the intent to repeal the first by it was to be implied. In case, however, of its being recalled by the testator in his life-time, it could not, on the theory referred to, be taken to have had the effect to do away with its predecessor. Being cut off before having its dispositions of property awakened into life, it could have not affirmative operation through its dispositions upon the estate.

In the second case the written declaration is express and in plain terms immediate and absolute. It is a verbal act done solemnly and deliberately for present effect, and not an act contemplating that future circumstances are to determine whether after all it shall have any force. It is not a needful ingredient of the will. That is perfect without it. The addition of it is a mode of immediate cancellation of prior wills, and quite as unequivocal and unambiguous as many others within the statute whose meaning is open to no controversy. It operates at once, and does not apply as a mere contingent caveat against the objects at which it is aimed.

It revokes them without reserve or qualification. And in case the document with which it is connected is itself revoked, that fact can have no effect as a restoration and republication of former revoked wills.

It is only necessary to glance at the authorities to see that judicial opinion, as already suggested, is not harmonious in regard to this question. Much, no doubt, of the diversity may be traced to variety of legislation, but not all. Upon consideration, the doctrine of James v. Marvin, 3 Conn., 576; Boudinot v. Bradford 2 Dall. 266, and others holding the same views and ruling in accordance with what has just been expressed, appears to be most consonant with our system and with popular understanding, and at the same time the most reasonable and safe. Having reached this result, it is only necessary to add that the proponent has no occasion to complain of the rulings. She was not prejudiced.

The order of the circuit court should be affirmed with costs.

The other Justices concurred.

ABRAM VANDOOZER V. GEORGE M. DAYTON.

Trespass quare clausum-Proof of defendant's lawful possession.

Comp. L. §§ 5326-9 provides that in any action involving title to land, a defendant, if the suit is before a justice, shall be deemed to admit any claim of title made in the declaration unless, in pleading the general issue, he gives notice that the title will come in question. Held, that in an action of trespass quare clausum in which such notice was not given, this rule would not preclude defendant's showing that he was lawfully in possession where the declaration did not aver title but merely that defendant broke and entered, etc., "the close of the said plaintiff" and "broke open the house of the plaintiff on said premises," since, for the purpose of the action, the close was that of the plaintiff if he had peaceable possession whether he had title or not, but it was not his close if defendant had peaceable possession.

Tenancy of any sort is a species of title; and where a defendant in an action brought before a justice and involving title, has not given notice that title will come in question, he cannot rely upon his tenancy as a defense. Comp. L. §§ 5326-9.

Submitted Nov. 10. Decided Jan. 12.

Error to Ingham.

TRESPASS qu. cl.

Defendant brings error.

Reversed.

E. D. Lewis for plaintiff in error. A defendant in trespass qu. cl. is always entitled, under the plea of the general issue, to show actual possession: Rawson v. Finlay 27 Mich. 268; Ehle v. Quackenboss 6 Hill 537; Fredonia etc. P. R. Co. v. Wait 27 Barb. 214; Dolittle v. Eddy 7 Barb. 74; Hastings v. Glenn 1 E. D. Smith 402; Hardrop v. Gallagher 2 id. 523; trespass will not lie against one in actual possession: 6 Waits' Actions 64, 74; Cooley on Torts 332-5; Van Rensselaer v. Radcliff 10 Wend. 639; Livingston v. Haywood 11 Johns. 429; Livingston v. Mott 2 Wend. 605; Schermerhorn v. Buell 4 Den. 422; Campbell v. Arnold 1 Johns. 512; Wickham v. Freeman 12 Johns. 183; Stuyvesant v. Tompkins 9 Johns. 61.

M. V. & R. A. Montgomery for defendant in error.

COOLEY, J. This case originated in justice's court. The declaration was in trespass quare clausum, and omitting formal parts, was as follows: "For that the said defendant on the tenth day of December, A. D. 1873, and on divers. other days and times between that day and the day of September, 1874, the close of the said plaintiff, situate in the township of Locke, in said county, and known and described as being the north-east quarter of section eight, in township four north, of range two east, State of Michigan, broke and entered and with his feet in walking trod down, trampled upon the grass of the plaintiff, growing there, and with his hands, and with axes and other implements, broke open the house of the plaintiff on said premises, and cut, broke and otherwise injured the floor, ceiling, doors, windows, walls,

door-casings and under-casings of said house of the plaintiff, and other injuries to him, the said plaintiff, then and there did, against the peace of the people," etc. The defendant pleaded the general issue merely, went to trial and recovered. judgment, and the plaintiff appealed to the circuit court.

The statute provides that in every action where the title to any lands shall in anywise come in question, any claim to title to lands made by the plaintiff in his declaration, and therein described, shall be deemed to be admitted by the defendant, unless he shall give notice under the general issue showing that the title to lands will come in question, and give the bond for which the statute provides, for the transfer of the cause to the circuit court. Comp. L. §§ 5326-5329. The notice and bond were not given in the justice's court in this case.

On the trial in the circuit court the plaintiff gave evidence that he resided in Lansing; that between Christmas and New Year's, 1873-4, he visited the place and found a family in the house named Hilliker. He directed them to get out, and understood that they did so shortly afterwards. In the spring following he went there again and found defendant there, who admitted that he had been making hoops in the house, and also that he put Hilliker in. Plaintiff then described the injury that had been done to the house in making hoops there.

On the cross-examination of the plaintiff and also by his own evidence afterwards the defendant sought to show that plaintiff derived his title to the land from one Case, and that at the time Case conveyed to plaintiff, and also at the time of the alleged trespass defendant was lawfully in possession under Case. All offers of evidence to this effect were objected to and ruled out, though defendant explained its purpose to be to disprove any trespass by showing that he, and not the plaintiff, was in peaceful possession at the time the acts complained of were committed. His counsel also put to him the following question, which was objected to and ruled out: "By what right and under whose authority did