Page images

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 offencei, But where the trespass is by one or several acts, each of which terminates in itself, and being once done cannot be done again, it cannot be laid with a continuando ; yet if there be repeated acts of trespass 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.

In some cases trespass is justifiable; or, rather, entry on another's land or house shall not in those cases be accounted trespass: as if a man comes thither to demand 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 licence 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 neceflity of the thing! 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 guilty of trespass m: which humane provision seems bor. ( 213 ) rowed from the mosaical law " (3). In like manner the common

law 1 2 Roll. Abr. 545. Lord Raym. m Gilb. Ev 253. Trials per pais, 2.40.

ch. 15. pa. 438. * Salk. 638,639. Lord Raym. 823. Levit. c. 19. v. 9. & c. 23. V. 22. 7 Mod. 152.

Deut. c. 24. v. 19,&c. 18 Rep. 146. '

(3) Two actions of trespass have been brought in the common pleas against gleaners, with an intent to try the general question, viz.


law warrants the hunting of ravenous beasts of prey, as
badgers and foxes, in another man's land; because the de-
Atroying such creatures is said to be profitable to the public (4).
But in cases where a man misdemeans liimself, or makes an
ill use of the authority with which the law entrusts him, he
shall be accounted a trespasser ab initio : as if one comes
into a tavern and will not go out in a reasonable time, but
tarries there all night contrary to the inclinations of the
owner ; this wrongful act shall effect and have relation back
even to his first entry, and make the whole a trespass4. But a
bare non-feasance, as not paying for the wine he calls for,
will not make him a trespaffer ; for this is only a breach of
contract, for which the taverner shall have an action of debt
or assumpsit against him'. So if a landlord distreined for rent,
and wilfully killed the distress, this by the common law made
him a trespasser ab initio': and so indeed would any other ir-
regularity have done, till the statute ni Geo. II. c. 19.
which enacts, that no subsequent irregularity of the landlord
• Cro. Jac. 321.

58 Rep. 147.
p Fiach. L. 47. Cro. Jac. 148... Finch. L. 47.
9 2 Roll. Abr. 5610

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 fettled within the parish : to the plea in each case there was a general demurrer, Mr. J. Gould delivered a learned ju lgment in favour of gleaning, but the other three judges were clearly of opinion that this claim had no foundation in law; that it had no better origin than an ex. trajudicial di&um of lord Hale; that it was a pradlice incompatible with the exclusive enjoyment of property, and was productive of vagrancy, and many mischievous consequences. i H. BI. Rep. 51.

(4) It has been determined in a late case, that 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 deltruction of the animal by such a pursuit. iT.R. 333.

shall make his first entry a trespass; but the party injured shall have a special action of trespass or on the case, for the real specific injury sustained, unless tender of amends hath been made. But still, if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night ; or if the commoner who comes to tend his cattle, cuts down a tree; in these and similar cases, the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio'. So also in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth: for though the law warrants the hunting of such noxious animals for the [ 214 ] public good, yet it is held that such things must be done in an ordinary and usual manner; therefore, as there is an ordinary course to kill them, viz. by hunting, the court held that the digging for them was unlawful.

A MAN may also justify in an action of trespass, on ac. count of the freehold and right of entry being in himself; and chis defence brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; though it is not lo usual a3 that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land: whereas in trespass, which is merely a personal fuit, the right can be only ascertained, but no possession delivered ; nothing being recovered but damages for the wrong committed.

In order to prevent triling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c. 6. and 22 & 23 Car. II. C. 9. § 136. that where the jury, who try an action of tres-, pats, give less damages than forty shillings, the plaintiff shall

18 Rep. 146.

u Cro. Jac. 3-1.


be allowed no more costs than damages; unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question. But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statate 8 & 9 W. III. c. 11. which enacts, that in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover fullcosts(5). Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land; as every trespass is malicious, though the damage may not amount to forty

shillings, where the intent of the defendant plainly appears to [ 215 ] be to harass and distress the plaintiff(6). The other exception

is by statute 4 and 5 W. & M. c. 23. which gives full costs against any inferior tradesman, apprentice, or other dissolute person, who is convicted of a trespass in hawkirig, hunting, fishing, or fowling upon another's land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate ; but, if he be guilty of such trespass, he shall be liable to pay full costs w(7).

w Lord Raym. 149.

(s) The judge must certify in open court after the trial, otherwise the certificate is void. 2 Wilf. 21.

(6) If a person has notice not to come or continue upon another's land, as if a sportsman has notice or warning not to come again, or to go off, and he repeats or continues the trespass, upon proof of this, the judges think themselves bound to certify that the trespass is wilful and malicious, and the plaintiff will in consequence be entitled to full costs. i Esp. 425.

(7) The persons described in the 4 & 5 W. & M. c. 23. are subject to pay full costs, though the damages are under 40 s., without any previous 'notice or certificate of the judge. The words inferior tradesman are so vague that the court of common pleas were divided in opinion, whether a person who was a surgeon and apothecary came under that description. 2 Wils. 70.


It has been decided, that a gentleman's huntsman is not a diffolute person under this act; and where the plaintiff state's the defendant in his declaration to be a diffolute person, or other person mentioned in the act, if he should not prove him so at the trial, ftill he may recover a verdict as in a common action of tref. pass. 2 BI. Rep. 900.

[merged small][ocr errors][ocr errors]
« PreviousContinue »