IN fome cafes trefpafs is juftifiable; or, rather, entry on another's land or house shall not in those cafes be accounted trefpafs: 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 juftify entering into an inn or public houfe, without the leave of the owner first specially afked; because when a man profeffes the keeping of such inn or public house, he thereby gives a general licence to any perfon to enter his doors. So a landlord may justify entering to diftrain 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 neceffity of the thing'. 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 harvest, without. [213] being guilty of trefpafs": which humane provifion feems borrowed from the Mofaical law" (3). In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land; becaufe the de

18 Rep. 146.

Gilb. Ev. 253. Trials per pais, ch. 15. pa. 438.

n Levit. c. 19. v. 9. & c. 23. v. 23. Deut. e. 24. v. 19, &c.

(3) Two actions of trefpafs have been brought in the common pleas against gleaners, with an intent to try the general question, viz. whether fuch a right exifted; in the firft, the defendant pleaded that' he being a poor, neceffitous, and indigent perfon, entered the plaintiff's close to glean; in the fecond, 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 cafe there was a general deMr. J. Gould delivered a learned judgment in favour of gleaning, but the other three judges were clearly of opinion that this claim had no foundation in law; that the only authority to support it was an extrajudicial dictum of lord Hale; that it was a practice incompatible with the exclufive enjoyment of property, and was productive of vagrancy, and many mifchievous confe1 H. Bl. Rep. 51.

murrer.

quences.

ftroying

ftroying fuch creatures is faid to be profitable to the public°(4). But in cafes where a man mifdemeans himself, 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 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 9. 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 diftrefs, 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. fhall make his firft entry a trefpafs; but the party injured fhall have a fpecial action of trefpafs or on the cafe, for the real specific injury fuftained, unless 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 efteemed a trefpaffer ab initio. So alfo in the cafe 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

(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.

an

an ordinary and ufual 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 trefpafs, on ac count of the freehold and right of entry being in himself ; and this defence brings the title of the estate in question. This is therefore one of the ways devised, since the difufe of real actions, to try the property of eftates; though it is not fo usual as that by ejectment, because 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 personal suit, the right can be only ascertained, but no poffeffion delivered; nothing being recovered but damages for the wrong committed.

In order to prevent trifling and vexatious actions of tref país, 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 trefpass, give less damages than forty fhillings, the plaintiff shall be allowed no more cofts than damages; unless 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 trespass, wherein it shall appear that the trefpafs 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 tref pass is malicious, though the damage may not amount to forty fhillings, where the intent of the defendant plainly appears to 215] be to harass and distress the plaintiff (6). The other exception

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

(6) If a perfon has notice not to come or continue upon an other's land, as if a fportsman has notice or warning not to come

is by ftatute 4 & 5 W. & M. c. 23. which gives full cofts against any inferior trade finan, apprentice, or other diffolute perfon, who is convicted of a trefpafs in hawking, hunting, fishing, 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 (7).

w Lord Raym. 149.

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 trespass is wilful and malicious, and the plaintiff will in confequenee be entitled to full cofts. 1 Efp. 425.

It has been determined that the judge was bound to certify, although the notice had been general to all perfons not to trefpass upon the plaintiff's lands, and given four years before, and although the defendant was unacquainted with the boundaries of the plaintiff's eftate. 67. R. 11.

(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 certificate of the judge or previous notice from the party. The words inferior tradefman are fo vague that the court of common pleas were divided in opinion, whether a person who was a furgeon and apothecary came under that defcription. 2 Wils. 70.

It has been decided, that a gentleman's huntfman is not a diffolute perfon under this act; and where the plaintiff ftates the defendant in his declaration to be a diffolute perfon, 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.

CHAPTER THE THIRTEENTH,

OF NUSANCE.

A

THIRD fpecies of real injuries to a man's lands and tenements, is by nufance. Nufance, nocumentum, or annoyance, fignifies any thing that worketh hurt, inconvenience, or damage. And nufances are of two kinds; public or common nufances, which affect the public, and are an annoyance to all the king's fubjects; for which reafon we must refer them to the class of public wrongs, or crimes and misdemesnors and private nufances, which are the objects of our prefent confideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another. We will therefore, firft, mark out the feveral kinds of nufances, and then their respective remedies.

I. IN difcuffing the feveral kinds of nufances, we will confider, first, fuch nufances as may effect a man's corporeal hereditaments, and then those that may damage fuch as are incorporeal.

I. FIRST, as to corporeal inheritances. If a man builds a house so close to mine that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nufance, for which an action will lie. other building fo near to mine,

a Finch. L. 188.

Likewife to erect a houfe or that it obftructs my antient

F. N. B. 184.