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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 feparate offence. 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 trefpafs 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 *.

IN fome cafes trespass is juftifiable; 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. Alfo a man may justify entering into an inn or public house, without the leave of the owner first specially asked; because when a man profeffes 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 diftrein for rent; a commoner to attend his cattle, commoning on another's land; and a reverfioner, to fee if any wafte be committed on the eftate; for the apparent neceflity of the thing'. Also it hath been faid, 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 trefpafs": which humane provifion feems bor. [213] rowed from the mosaical law "(3). In like manner the common

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

whether

law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land; because the deftroying fuch creatures is faid to be profitable to the public (4). But in cafes where a man misdemeans himself, or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trefpaffer 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 fhall effect and have relation back even to his first entry, and make the whole a trefpafs. 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 against him'. So if a landlord diftreined for rent, and wilfully killed the distress, this by the common law made him a trefpaffer ab initio 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 landlord

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whether fuch a right exifted; in the first, the defendant pleaded that he being a poor, neceffitous, and indigent perfon, entered the plaintiff's clofe to glean; in the fecond, 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 cafe there was a general demurrer. Mr. J. Gould delivered a learned julgment 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 extrajudicial dictum of lord Hale; that it was a practice incompati ble with the exclufive enjoyment of property, and was productive of vagrancy, and many mifchievous confequences. 1 H. Bl.

Rep. 51.

(4) It has been determined in a late cafe, that it is lawful to follow a fox with horfes and hounds over another's ground, if no more damage be done than is neceffary for the deftruction of the animal by fuch a purfuit. 1 T. R. 338.

fhall

fhall make his first entry a trefpafs; but the party injured fhall have a special action of trespass or on the cafe, for the real specific injury fuftained, unless tender of amends hath been made. But still, if a reverfioner, who enters on pretence of seeing wafte, 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 fimilar cafes, the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates fuch his purpose is a trefpafs, he shall be esteemed a trefpaffer ab initio. So alfo in the case of hunting the fox or the badger, a man cannot justify breaking the foil, and digging him out of his earth: for though the law warrants the hunting of fuch noxious animals for the [214] public good, yet it is held" that fuch things must be done in an ordinary and ufual manner; therefore, as there is an ordinary courfe 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 trefpafs, on account of the freehold and right of entry being in himself; and this defence brings the title of the eftate in question. This is therefore one of the ways devised, fince the difufe of real actions, to try the property of eftates; though 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 actions, it is (inter alia) enacted by ftatutes 43 Eliz. c. 6. and 22 & 23 Car. II. c. 9. § 136. that where the jury, who try an action of trefpafs, give less damages than forty fhillings, the plaintiff shall

18 Rep. 146.

u Cro. Jac. 321.

be

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. whichenacts, that in all actions of trefpafs, wherein it fhall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff fhall recover full cofts (5). Every trefpafs is wilful, where the defendant has notice, and is efpecially forewarned not to come on the land; as every trefpass is malicious, though the damage may not amount to forty fhillings, where the intent of the defendant plainly appears to [215] be to harafs and diftrefs the plaintiff (6). The other exception is by ftatute 4 and 5 W. & M. c. 23. which gives full cofts against any inferior tradefman, apprentice, or other diffolute perfon, who is convicted of a trefpafs in hawking, hunting, fishing, or fowling upon another's land. Upon this statute 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 (7).

W

w Lord Raym. 149.

(5) The judge muft certify in open court after the trial, otherwife the certificate is void. 2 Wilf. 21.

(6) If a perfon 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 trefpafs, upon proof of this, the judges think themselves bound to certify that the trefpafs is wilful and malicious, and the plaintiff will in confequence be entitled to full cofts. 1 Ep. 425.

(7) The perfons defcribed in the 4 & 5 W. & M. c. 23. are fubject to pay full cofts, though the damages are under 40s., without any previous notice or certificate of the judge. The words inferior tradefman are fo vague that the court of

common

common pleas were divided in opinion, whether a perfon who was a furgeon and apothecary came under that description. 2 Wils. 70.

It has been decided, that a gentleman's huntsman is not a diffolute perfon under this act; and where the plaintiff states the defendant in his declaration to be a diffolute person, or other perfon 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 trefpaís. 2 Bl. Rep. 900.

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