Now, disused.

provided (b). And the action is brought against the feoffee for deforcing, or keeping out, the original lessee during the continuance of his term; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains; and also shall have actual damages for that portion of it whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession, (by what means soever he acquired it,) and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse.

(b) F. N. B. 198.

CHAPTER XII.

OF TRESPASS.

real property

without ouster:

In the two preceding chapters we have considered such in- of injuries to juries to real property, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man's real property without any amotion from it.

The second species therefore of real injuries, or wrongs Trespass; that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass, in its argest and most exten- definition of. sive sense, signifies any transgression or offence against the law of nature (1), of society, or of the country in which we live; whether it relates to a man's person, or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an action of trespass vi et armis in assault and battery will lie; taking or detaining a man's goods are respectively trespasses; for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law so also non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man, whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense; for which we have already seen (a) that, (a) See page 123.

(1) Before municipal laws existed, man had natural rights; the infringe ment of which was a trespass, or transgression against the law of nature, i. e. the will of God. Locke has strongly observed that, "the obligations of nature cease not in society, but only in many cases are drawn closer. The law

of nature stands as an eternal rule to
all men, legislators as well as others."
See the notes to vol. ii. ch. i. passim.
A late critic on the passage in the text
seems to have confounded the law of
nature with the abuse of that law,
when he says "it is the law of the
strongest."

whenever the act itself is directly and immediately injurious [*209 ] to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought (2).

Trespass, in its limited sense, is entering on another's ground

But in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on without authority. another man's ground without a lawful authority, and doing

Roman law.

English law.

some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established (3), it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil; every entry therefore thereon without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury; "qui alienum fundum ingreditur, potest a domino, si is præviderit, prohiberi ne ingrediatur (b)." But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid

(b) Inst. 2, 1, 12.

(2) The distinctions between actions of trespass vi et armis for an immediate injury, and actions of trespass upon the case for a consequential damage, are frequently very delicate; see the subject much considered in 2 Bl. Rep. 892, in a case where an action of trespass vi et armis was brought against the defendant for throwing a lighted squib in a public market, which fell upon a stall; the owner of which, to defend himself and his goods, took it up, and threw it to another part of the market, where it struck the plaintiff and put out

his eye.

The question was much discussed, whether the person injured ought to have brought an action of trespass vi et armis, or an action upon the case; and one of the four judges strenuously contended that it ought to have been an action upon the case. But I should

humbly conceive, that the question was
more properly this, viz. whether an ac-
tion of trespass vi et armis lay against
the original or intermediate thrower, or
whether the act of the second thrower
was involuntary, (which seems to have
been the opinion of the jury,) or wilful
and mischievous, and therefore he alone
ought to have been answerable for the
consequences. For if A. throws a stone
at B., which after it lies quietly at his
foot, B. takes up and throws again at
C., it is presumed that C. has his action
against B. only; but if it is thrown at
B., and B., by warding it off from him-
self, gives it a different direction, in
consequence of which it strikes C., in
that case, it is wholly the act of A., and
B. must be considered merely as an
involuntary or inanimate object.-C.
[See ante, the note to p. 123.]-EDIT.
(3) See ante, vol. ii. P. 8.

the entry, has carried the point much farther, and has treated every entry upon another's lands, (unless by the owner's leave, or in some very particular cases,) as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained. Every unwarrantable entry on another's soil the law en- Breaking close. titles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to show cause, quare clausum querentis fregit. For every man's land is in the eye of the law inclosed and set apart from his neighbours; and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an invisible boundary, *existing only in the contemplation of law, as when one man's land adjoins to another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage, or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage (c).

[*210 ]

maintain trespass.

One must have a property (either absolute or temporary) What necessary to in the soil, and actual possession by entry, to be able to maintain an action of trespass: or, at least, it is requisite that the party have a lease and possession of the vesture and herbage of the land (d). Thus, if a meadow be divided annually among the parishioners by lot, then, after each person's several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes (e); for they have an exclusive interest and freehold therein for the time. But before entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in law (ƒ). And therefore an heir before entry cannot have this action against an abator; though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land: but he cannot have it for any act done after the disseisin, until he hath gained possession by reentry, and then he may well maintain it for the intermediate

(c) F. N. B. 87, 88.

(d) Dyer, 285; 2 Roll. Abr. 549.

VOL. III.

R

(e) Cro. Eliz. 421.
(f) 2 Roll. Abr. 553.

Persons holding over trespassers.

[*211 ]

Trespass by cattle,

damage done; for after his re-entry the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him (g). Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrong-doer by a mode of redress which was calculated merely for injuries committed against the land while in the possession of the owner. But now, by the statute 6 Ann. c. 18, if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the *determination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers; and any reversioner or remainder-man, expectant on any life-estate, may once in every year, by motion to the Court of Chancery, procure the cestuy que vie to be produced by the tenant of the land, or may enter thereon in case of his refusal or wilful neglect. And by the statutes of 4 Geo. II. c. 28 (4), and 11 Geo. II. c. 19, in case, after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annual value of the premises, in case he himself hath demanded and given notice in writing to the tenant to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and he afterwards neglects to carry that notice into due execution.

A man is answerable for not only his own trespass, but owner answerable. that of his cattle also; for if by his negligent keeping they stray 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 spoil his corn or his trees, this is a trespass for which the owner must answer in damages. And the law gives the party injured a double remedy in this case; by permitting him to distrein the cattle thus damage action of trespass. feasant, or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy

Remedy, by distress damage feasant, or by

((g) 11 Rep. 5.

(4) See ante, p. 206, with the note thereto : and also the note to vol. ii.