¶1This complaint cannot be maintained under St. 1846, c. 52, entitled “ an act concerning wilful and malicious injuries to personal property in certain cases,” because it does not show that the cabbages were personal property. They may .have been so growing upon the land as to be part of the realty, and the terms of the complaint imply that they were so.
¶2The complaint seems rather to have been- intended to be framed upon St. 1855, c. 457, which provides that “ every person who shall wilfully and maliciously enter any orchard, nursery, *350garden or cranberry meadow, and take away, mutilate or'destroy any tree, shrub or vine, or steal, taire and carry away any fruit or flower, without the consent of the owner thereof, shall be deemed guilty of a misdemeanor.” But under that statute it cannot be maintained, for want of the essential averment of an unlawful entry. In many cases, civil and criminal, the unlawful entry is the gist of the action, although the circumstances may aggravate the trespass. For aught that appears .in this complaint, the defendant may have been upon the premises lawfully.
¶3 Judgment arrested.