PRIVATE WRONGS.
BOOK III.
CH. 12.

CHAPTER THE TWELFTH.
OF TRESSPASS.

IN the two preceding chapters we have confidered fuch injuries to real property, as convifted in an oufter, or amotion of the poffeffion. Thofe which remain to be difcuffed are fuch as may be offered to a man's real property without any amotion from it.

THE fecund fpecies therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is by trefpafs. Trefpafs, in it's largeft and moft extenfive fenfe, fignifies any tranfgreffion or offence againft the law of nature, of fociety, or of the country in which we live ; whether it relates to a man's perfon, or his property. Therefore beating another is a trefpafs ; for which (as we have formerly feen) an action of trefpafs vi et armis in affault and battery will lie : taking or detaining a man's goods are refpectively trefpaffes ; for which an action of trefpafs vi et armis, or on the café in trover and converfion, is given by the law : fo alfo non-performance of promifes or undertakings is a treafpafs ; upon which an action of trefpafs on the café in affumpfit is grounded : and, in general, any misfeafance, or act of one man whereby another is injurioufly treated or damnified, is a tranfgreffion, or trefpafs in it's largeft fenfe ; for which we have already feen ^a, that whenever the act itfelf is directly and imme-

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^a See pag.123.
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diately
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diately injurious to the perfon or property of another, and therefore neceffarily accompanied with fome force, and action of trefpafs vi et armis will lie ; but, if the injury is only confequential, a fpecial action of trefpafs on the café may be brought.

BUT in the limited and fenfe, in which we are at prefent to confider it, it fignifies no more than an entry on another man's ground without a lawful authority, and doing fome damage, however inconfideralbe, to his real property. For the right of meum and tuum, or property, in lands being once eftablifhed, it follows as a neceffary confequence, that this right muft be exclufive ; that is, that the owner may retain to himfelf the fole ufe and occupation of his foil : every entry therefore thereon without the owner's leave, and efpecially if contrary to his exprefs order, is a trefpafs or tranfgreffion. The Roman law feem to have made a direct prohibition neceffary, in order to conftitute this injury : “qui alienum fundum ingreditur, poteft a domino, if is praeviderit, porhiberi ne ingrediatur ^b.” But the law of England, juftly confidering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another's lands, (unlefs by the owner's leave, or in fome very particular cafes) as an injury or wrong, for fatisfaction of which an action of trefpafs will lie ; but determines the quantum of that fatisfaction, by confidering how far the offence was willful or inadvertent, and by eftimating the value of the actual damage fuftained.

EVERY unwarrantable entry on another's foil the law entitles a trefpafs by breaking his clofe ; the words of the writ of trefpafs commanding the defendant to fhew caufe, quare claufum querentis fregit. For every man's land is in the eye of the law inclofed and fet apart from his neighnour's : and that either by a bifible amaterial fence, as one field is divided from another by a hedge ; or, by an ideal invifible boundary, exifting only in the

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^b Inft. 2.1.12.
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contemplation of law, as when one man's land adjoins to another's in the fame field. And every fuch entry or breach of a man's clofe carries neceffarily along with it fome damage or other : for, if no other fpecial lofs can be affigned, yet ftill the words of the writ itfelf fpecify one general damage, viz. the treading down and bruifing his herbage ^c.

ONE muft have a property (either abfolute or temporary) in the foil, and actual poffeffion by entry, to be able to maintain an action of trefpafs : or at leaft, it is requifite that the party have a leafe and poffeffion of the vefture and herbage of the land ^d. Thus if a meadow be divided annually among the parifhioners by lot, then, after each perfon's feveral portion is allotted, they may be refpectively capable of maintaining an action for the breach of their feveral clofes ^e ; for they have an exclufive intereft and freehold therein for time. But before entry and actual poffeffion, one cannot maintain an action of trefpafs, though he hath the freehold in law ^f. And therefore an heir before entry cannot haave this action againft an abator ; though a diffeiffee might have it againft a diffeifor, for the injury done by the diffeifin itfelf, at which time the plaintiff was feifed of the land : but he cannot have it for any act done after the diffeifin, until he hath gained poffeffion by re-entry, and then he may well maintain it for the intermediate damage done ; for after his re-entry the law, by a kind of jus poftliminii, fuppofes the freehold to have all café of an intrufion or deforcement, could the party kept out of poffeffion fue the wrongdoer by a mode of redrefs, which was calculated merely for injuries committed againft the land while in the poffeffion of the owner. But by the ftatute 6 Ann. c.18. if guardian or fruftee for any infant, a hufband feifed jure uxoris, or a perfon having any eftate or intereft determinable upon a life or lives, fhall, after the dtermination of their re-

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^c F.N.B.87,88.
^d Dyer.285. 2 Roll. Abr.549.
^e Cro. Eliz.421.
^f 2 Roll. Abr.553.
^g 11 Rep.5.
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refpective interefts, hold over an continue in poffeffion of the lands or tenements, they are now adjudged to be trefpaffors ; and the reverfioner or remainder-man once in every year, by motion to the court of chancery, procure the ceftuy que vie to be produced by the tenant of land, or may enter thereon in café of his refufal or willful neglect. And, by the ftatutes of 4 Geo. II. c.28. and 11 Geo. II. c.19. in café after the determination of any term of life, lives, or years, any perfon fhall willfully hold over the fame, the feffor is entitled to recover by action of debt, either a rent of double the annual value of the premifes, in café he himfelf hath demanded and given notice in writing to deliver the poffeffion ; or elfe double the ufual rent, in café the notice of quitting proceeds from any tenant having power to determine his leafe, and he afterwards neglects to carry it into due execution.

A MAN is anfwerable for not only his own ftefpafs, but that of his cattle alfo : for by his negligent keeping they ftray upon the land of another (and much more if he permits, or drives them on) and they there tread down his neighbour's herbage, and fpoil his corn or his trees, this is a trefpafs for which the owner muft anfwer in damages. And the law gives the party injured a double remedy in this café ; by permitting him to diftrein the cattle thus damage-feafant, or doing damage, till the owner fhall make him fatisfaction ; or elfe by leaving him to the common remedy in foro contentiiofo, by action. And the action that lies in either of thefe cafes, of trefpafs committed upon another's land either by a man himfelf or his cattle, is the action of trefpafs vi et armis ; whereby a man is called upon to anfwer, quare vi et armis claufum ipfius A. apud B. fregit, et blada ipfius A. ad valentiam centum folidorum ibidem nuper crefcentia cum quibufdam averiis depaftus fuit, conculavit, et confumpfit, &c ^h : for the law always couples the idea of force with that of intrufion upon the property of another. And herein, if any unwarrant-

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^h Regiftr.94.
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C c 2
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able act of the defendant or his beafts coming upon the land be proved, it is an act of trefpafs for which the plaintiff muft recover fome damage ; fuch however as the jury fhall think proper to affefs.

IN trefpaffes of a permanent nature, where the injury is continually renewed, (as by fpoiling or confuming the herbage with the defendant's cattle) the declaration may allege injury to have been committed by continuation from one given day to another, (which is called laying the action with a continuando) and the plaintiff fhall not be compelled to bring feparate actions for every day's feparate offence ⁱ. But where the trefpafs is by one or feveral acts, each of which terminates in itfelf, and being once done cannot be done again, it cannot be laid with a continuando ; yet if there be repeated act of trefpafs committed, (as cutting down a certain number or trees) they may be laid to be done, not continually, but at divers days and times within a given period ^k.

IN fome cafes trefpafs is juftifiable ; or, rather, entry on another's land or houfe fhall not in thofe cafes be accounted trefpafs : as if a man comes there to demand or pay money, there payable ; or to execute, in legal manner, the procefs of the law. Alfo a man may juftify entering into an inn or public houfe, without the leave of the owner firft fpecially afked ; becaufe, when a man profeffes the keeping of fuch inn or public houfe, he thereby gives a general licence to any perfon to enter his doors. So a landlord may juftify entering to diftrein for rent ; a commoner to attend his cattle, communing on the eftate ; for the apparent neceffity of the thing ^l. Alfo it hath been faid, that by the common law and cuftom of England the poor are allowed to enter and glean upon another's ground after the har-

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ⁱ 2 Roll. Abr. 545. Lord Raym.240. 7 Mod.152.
^k Salk.638,639. Lord Raym.823.
^l 8Rep.146.
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veft, without being guilty of trefpafs ^m : which humane provifion feems borrowed from the mofaical law ⁿ. In like manner the common law warrants the hunting of ravenous beafts of prey, as badgers and foxes, in another man's land ; becaufe the deftroying fuch creatures is profitable to the public ^o. But in cafes where a man difdemeans himfelf, or makes an ill ufe of the authority with which the law entrufts him, he fhall be accounted a trefpaffer ab initio ^p : as if one comes into a tavern and will not go out in reafonable time, but tarries there all night contrary to the inclinations of the owner ; this wrongful act fhall affect and have relation back even to his firft entry, and make the whole a trefpafs ^q. But a bare non-feafance, as not paying for the wine he calls for, will not make him a trefpaffer ; for this is only a breach of contract, for which the taverner fhall have an action of debt or affumpfit agianft him ^r. So if a landlord diftreined for rent, and willfully killed the diftrefs, this by the common law made him a trefpaffer ab initio ^s : and fo indeed would any other irregularity have done, till the ftatute 11 Geo. II. c.19. which enacts that no fubfequent irregularity of the land-lord fhall make his firft entry a trefpafs ; but the party injured fhall have a fpecial action on the café for the real fpecific injury fuftained, unlefs tender of amends hath been made. But ftill, if a reverfioner, who enters on pretence of feeing wafte, breaks the houfe, or ftays there all night ; or if the commoner who comes to tend his cattle, cuts down a tree ; in thefe and fimilar cafes the law judges that he entered for this unlawful purpofe, and therefore, as the act which demonftrates fuch his purpofe is a trefpafs, he fhall be eftreemed a trefpaffer ab initio ^t. So alfo in the café of hunting the fox or the badger, a man cannot juftify breaking the foil, and digging him out of his earth : for though

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^m Gilb. Ev. 253. Trials per pais. ch.15. pag.438.
ⁿ Levit. c.19. v.9.& c.23. v.22. Deut. c.24. v.19.&c.
^o Cro. Jac.321.
^p Finch. L.47. Cro. Jac 148.
^q 2 Roll. Abr.561.
^r 8 Rep.147.
^s Finch. L.47.
^t 8 Rep.146.
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the
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the law warrants the hunting of fuch noxious animals for the public good, yet it is held ^u that fuch things muft be done in an ordinary and ufual manner ; therefore that being an ordinary coufe to kill them viz. by hunting the court held that the digging for them was unlawful.

A MAN may alfo juftify in an action of trefpafs, on account of the freehold and right of entry being in himfelf ; and this defence brings the title of the eftate in queftion. Thus is therefore one of the ways divifed, fince the difufe of real actions, to try the property of eftates ; thought it is not fo ufual as that by ejectment, becaufe that, being now a mixed action, not only gives damages for the ejection, but alfo poffeffion of the land : whereas in trefpafs, which is merely a perfonal fuit, the right can be only afcertained, but no poffeffion delivered ; nothing being recovered but damages for the wrong committed.

IN order to prevent trifling and vexatious actions of trefpafs, as well as other perfonal actional actions, it is (inter alia) enacted by ftatutes 43 Eliz. c.6. and 22 and 23 Car. II. c.9. §.136. that where the fury who try an action of trefpafs, give lefs damages than forty fhillings, the plaintiff fhall be allowed no more cofts than damages ; unlefs the judge fhall certify under his hand that the freehold or title of the land came chiefly in queftion. But this rule now admits of two exceptions more, which have been made by fubfequent ftatutes. One is by ftatute 8&9 W. III. c.11. which enacts, that in all actions of trefpafs, wherein it fhall appear that the trefpafs was willful and malicious, and it be fo cerfified by the judge, the plaintiff fhall recover full cofts. Every trefpafs is willful, where the defendant has notice, and is efpecially forewarned not to come on the land amount to froty fhillings, where the intent of the defendant plainly appears to be to

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^u Cro.Jac.321.
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harrafs
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harrafs and diftrefs the plaintiff. The other exception is by ftatute 4&5 W.&M. c.23.which gives full againft any inferior tradefman, apprentice, or other diffolute perfon, who is convicted of a trefpafs in hawking, hunting, fifhing, or fowling upon another's land. Upon this ftatute it has been adjudged, that if a perfon be an inferior tradefman, as a clothier for inftance, it matters not what qualification he may have in point of eftate ; but, if he be guilty of fuch trefpafs, he fhall be liable to pay full cofts ^w.

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^w Lord Raym.149.
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