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and actual possession by entry, necessary to maintain trespass. Instances.

porary) 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 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 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 wrongdoer by a mode of redress which was calculated merely for injuries committed against the land while in

(d) Dyer, 285. 2 Roll. Abr. 549.
(e) Cro. Eliz. 421.

holden, that where the tenant, after
expiry of notice to quit, abandoned the
house, leaving only a few articles with-
in it, and the landlord broke the door
and took possession, he was justified
in doing so. Turner v. Meymott, 7
J. B. Moore, 574. 1 Bing. 158. S. C.
Trespass lies against a person who
wrongfully removes a tombstone from
the churchyard. Spooner v. Brewster,
3 Bing. 136. Actual possession does
not appear requisite to found this ac-

(f) 2 Roll. Abr. 553.
(g) 11 Rep. 5.

tion, since it has been ruled that the person by induction only obtains a right to bring this action for trespass upon the glebe. Bulwer v. Bulwer, 2 B. & A. 470. Where trees are excepted in a lease, so is the land on which they grow; and if the tenant cut down the trees, trespass quare clausum fregit lies against him at the suit of the landlord. Rolls v. Rock, 2 Selw. N. P. 1316, 7th edit.

the possession of the owner.

But now, by the statute By stat. 6 Ann. c. 18, what persons holding

trespassers.

6 Ann. c. 18, if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate over become or interest determinable upon a life or lives, shall, after the *determination of their respective interests, hold over [*211 ] 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 (6). And by the statutes of 4 Geo. II. c. 28, and Also by statutes 11 Geo. II. c. 19, in case, after the determination of any c. 28, and 11 term of life, lives, or years, any person shall wilfully hold Geo. II. c. 19, which give over the same, the lessor or reversioner is entitled to re- double annual cover by action of debt, either at the rate of double the value or double 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 (7) (8).

per

4 Geo. II.

usual rent.

owner answer

of his cattle.

A man is answerable for not only his own trespass, but Where the that of his cattle also; for if by his negligent keeping they able for trespass stray upon the land of another, (and much more if he mits, 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.

(6) By sect. 3, if it afterwards appear in any action that the cestuy que vie was really alive, the party entitled may re-enter, and maintain an action for the mesne profits.

(7) See vol. ii. p. 151, n. (5).
(8) As to where a landlord may,

under similar circumstances, forcibly
take possession of premises and yet not
be open to trespass at the suit of the
tenant, see Turner v. Meymott, 7 J. B.
Moore, 574. 1 Bing. 158. S. C. Also
mentioned, ante.

Remedy by distress damage feasant, or by action of tres

pass.

And the law gives the party injured a double remedy in this case; by permitting him to distrein the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases of trespass committed upon another's land either by a man himself or his cattle, is the action of trespass vi et armis; whereby a man is called upon to answer, quare vi et armis clausum ipsius A. apud B. fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, &c. (h) [Wherefore with force and arms the close of him, the said A. at B., he broke, and the grass of the said A., of the value of one hundred shillings, there lately growing, with divers cattle, did eat, tread down, and destroy]: for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any [*212] unwarrantable act of the defendant or his beasts in coming upon the lands be proved, it is an act of trespass for which the plaintiff must recover some damages; such, however, as the jury shall think proper to assess.

In trespasses of a permanent na

ture, continuation to be alleged in declaration.

In trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbage with the defendant's cattle,) the declaration may allege the 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 shall not be compelled to bring separate actions for every day's separate offence (i). But where the trespass is by one or several acts, each of which terminates in itself, and being days and times. Once done cannot be done again, it cannot be laid with a continuando (9); yet if there be repeated acts of trespass

When alleged to have been

done at divers

(h) Registr. 94.

(i) 2 Roll. Abr. 545. Lord Raym. 240.

(9) See English v. Purser, 6 East, 395, recognising Mitchell v. Neal,

Cowp. 828.

committed, (as cutting down a certain number of trees,) they may be laid to be done, not continually, but at divers days and times within a given period (k) (10).

In some cases trespass is justifiable; or, rather, entry Where trespass on another's land or house shall not in those cases be justifiable. accounted trespass; as if a man comes thither to demand Instances. or pay money, there payable; or to execute, in a legal manner, the process of the law. Also a man may justify entering into an inn or public house, without the leave of the owner first specially asked; because when a man professes the keeping of such inn or public house, he thereby gives a general license to any person to enter his doors. So a landlord may justify entering to distrein for rent; a commoner to attend his cattle, commoning on another's land; and a reversioner, to see if any waste be committed on the estate; for the apparent necessity of the thing (7). Also it hath been said, that by the common law and custom of England the poor are allowed to enter and glean upon another's ground after the harvest, without *being

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(10) It is observed by a very sensible author, that the modern form of declaring "that defendant, on such a day in such a year, and on divers other days and times between that day and the day of the commencement of the suit, committed several trespasses," is more concise, and that it does not afford any scope for those nice and subtle objections which used to be raised on the difference between acts which lay in continuance and acts which did not. Selw. N. P. 1326. And it is further observed, in effect, n. (9), ibid., that it is scarcely possible to conceive many acts of which continuance, without intermission, can be predicated. That consuming and

spoiling grass, &c. with cattle, levant
and couchant, from day to day, is one
instance, but that it would be difficult
to enumerate many more.

These observations are chiefly found
in a standard book; but it is not the
less to be regretted, that the interests of
parties should be thus sacrificed to mere
wordy technicalities, entirely aloof from
the real matter of dispute between them.
Let it be matter of evidence that the
defendant suffered, as to the application
of his means of defence, by the want
of form in the plaint.

The law of pleading, in relation to laying the day in a declaration in trespass, with a continuando, is elaborately discussed, 1 Wms. Saund. 24, n. (1).

Where so deemed or not, trespasser ab initio.

Instances.

guilty of trespass (m); which humane provision seems borrowed from the Mosaical law (n) (11). In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land; because the destroying such creatures is said to be profitable to the public (o) (12). But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trespasser ab initio (p): as if one comes into a tavern and will not go out in a reasonable time, but tarries there all

(m) Gilb. Ev. 253. Trials per pais, ch. 15, page 438.

(n) Levit. c. xix. v. 9, and c. xxiii. v. 22. Deut. c. xxiv. v. 19, &c.

(11) Two actions of trespass have been brought in the Common Pleas against gleaners, with an intent to try the general question, viz. whether such a right existed; in the first, the defendant pleaded that he, being a poor, necessitous, and indigent person, entered the plaintiff's close to glean; in the second, the defendant's plea was as before, with the addition that he was an inhabitant legally settled within the parish: to the plea in each case there was a general demurrer. Mr. J. Gould delivered a learned judgment in favour of gleaning, but the other three judges were clearly of opinion that this claim

*This decision has, with reference to its imputed want of feeling for the poor, been sometimes questioned, but with what propriety may not easily appear. The learned judge whose single opinion upon the case stands opposed to that of his brethren upon the bench, gave it with much learning and moral argument; but feeling evidently predominated: the law was viewed by him through a very deceptious medium, sympathy for human wants; but the

(0) Cro. Jac. 321.

(p) Finch, L. 47. Cro. Jac. 148.

had no foundation in law; that it had no better origin than an extrajudicial dictum of Lord Hale; that it was a practice incompatible with the exclusive enjoyment of property, and was productive of vagrancy, and many mischievous consequences. 1 H. Bl. Rep. 51.*-CH.

(12) It is lawful to follow a fox with horses and hounds over another's ground, if no more damage be done than is necessary for the destruction of the animal by such a pursuit. Gaudry v. Feltham, 1 T. R. 334. And see the case cited in the text page 214.-Cн.

arguments of the other judges are not more luminous than their decision is correct. For what was originally allowed from feeling or sympathy, might be well and better permitted to continue from feeling or sympathy. It is best for the poor and indigent that something which they acquire should be deemed a boon. They too often are unmindful of their own rights, and it can scarcely be anticipated that they should respect those of others.

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