tions, the courts will not permit a verdict to be disturbed on this ground.

Costs.

As to the costs, see the remarks on the second section, ante, p. 1198. and post. under tit. Judgment.

Judgment.

This being an action for the recovery of a treble value of the tithes, in a case where the single value was not recoverable at common law, did not fall within the stat. of Gloucester (15); the plaintiff, therefore, was not intitled to recover costs under that statute, consequently the judgment formerly was only for the debt found by the jury; and if the jury on the trial had given costs and damages, it was incumbent o.. the plaintiff to enter a remittitur, and take judgment for th lebt only ; but an alteration has been made in this resper by stat. 8 & 9 W. 3. c. 11. which see ante, p. 1198.

If judgment be for the plaintiff by nil dicit, non sum informatus, or upon demurrer, the judgment may be entered for the whole debt demanded by the declaration.

So if the issue be on a collateral matters, as on the custom of tithing or discharge by statute, which is found against the defendant, and the defendant hath not taken the value by protestation, he shall pay the value expressed by the plaintiff in his declaration; for by the collateral matter pleaded in bar, the declaration is confessed in the whole.

If the action be brought against two or more defendants, and a verdict is given against one or two only of the defendants, plaintiff is intitled to judgment against those, although there be a verdict for the other defendants.

It is expressly provided, that the statute of jeofails, 16 and 17 Car. 2. c. 8., shall extend to this action.

c Brook q. t. v. Middleton, 10 East, 268.

d Co. Ent. 162. a. gd ed.

f Degge, 404.

g Costerdam's case, cited in Yelv. 127. h Bowles v. Broadhead, Aleyn, 88.

e See Dagg v. Penkevon, Cro. Jac. 70. i Styles, 317, 318. See also ante, unwhere this mode was adopted.

der Verdict.

(15) Where a statute gives damages by creation, there the plaintiff shall recover no costs; the reason is, because damages being given out of course, and where the common law does not give them, and the statute being therefore introductive of a new law, the plaintiff shall recover what the statute appoints him to recover, and no more." Arg. Hardr. 152.

CHAP. XXXIX.

TRESPASS.

1. In what Cuses an Action of Trespass may be

maintained.

II. Where Trespass cannot be maintained. 111. Of the Declaration.

IV. Of the Pleadings:

1. Of the General Issue, and what may be given in Evidence under it.

2. Accord and Satisfaction.

3. The Common Bar, or Liberum Tenemen! .
4. Estoppel

5. Licence

6. Process.

7. Right of Way.

8. Tender of Amends.

V. Costs.

I. In what Cases an Action of Trespass may be maintained.

THE land of every owner or occupier is enclosed and set apart from that of his neighbour, either by a visible and tangible fence, as one field is separated from another by a hedge, wali, &c. or by an ideal invisible boundary, existing only in the contemplation of law, as when the land of one man adjoins to that of another in the same open or common field. Hence every unwarrantable entry upon the land of another is termed a trespass by breaking his close.

The form of action which the law has prescribed for this injury is an action of trespass vi et armis quare clausum fre

git, in which the plaintiff may recover a compensation in damages for the injury sustained.

Although the words of the writ are quare clausum fregit, yet it has been adjudged, in many instances where the plaintiff had not an interest in the soil, but an interest in the profits only, that trespass may be maintained, and this form pursued. Hence it was holden, that the grantee or patentee of the king de herbagio forestæ, might maintain trespass against any person who consumed or destroyed the grass, and that the writ should be quare clausum fregit. So where plaintiff is intitled to the vesture of land, that is, corn, grass, underwood, and the like. So where plaintiff had an exclusive (1) right of cutting turves in a moss; although the manor in which the moss was situate belonged to another.

So if it is agreed between J. S. and the owner of the soil, that J. S. shall plough and sow the ground, and that in consideration thereof, J. S. shall give the owner of the soil half the crop, J. S. may maintain trespass for treading down the corn (2). So if a meadow be divided annually among cer tain persons by lot, then after the several portion of each person is allotted, each is capable of maintaining an action of trespass quare clasum fregit; for each has an exclusive interest for the timef.

Where trees are excepted in a lease, the land on which they grow is necessarily excepted also; consequently if the

a Dyer, 285. b. pl. 40.

b 1 Inst. 4. b.

c Moor, 355. pl. 483.

d Wilson v. Mackreth, 3 Burr. 1924.

e Welsh v. Hall, per Powell, J. at Wells, 1700. Salk. MSS. Bull. N. P.

85.

f See Cro. Eliz. 421,

(1) “ To maintain trespass, it is essential that the plaintiff should have exclusive possession at the time of the injury committed. Hence trespass will not lie for entering into a pew or seat in a church, because the plaintiff has not the exclusive possession, the possession of the church being in the parson," Per Buller, J. T. R. 430. The proper form of action for this injury is an action of trespass on the case; to support which, the plaintiff must prove a right, either by a faculty or by prescription, which supposes a faculty having been formerly granted.

(2) In such case the owner is not jointly concerned in the grow ing corn, but is to have half after it is reaped, by way of rent, which may be of other things than money; although, in 1 Inst, 142, it is said, it cannot be of the profits themselves. But that, as it seems, must be understood of the natural profits. Bull. N. P. 85.

tenant, cut down the trees, the landlord may maintain trespass for breaking his close and cutting down the trees.

Where two adjacent fields are separated by a hedge and ditch, the hedge prima facie belongs to the owner of the field, in which the ditch is not. If there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership". The rule about ditching is this': a person, making a ditch, cannot cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land; he is of course bound to throw the soil which he digs out, upon his own land, and often, if he likes it, he plants a hedge on the top of it; there fore, if he afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neigh bour's land, and is a trespasser: no rule about four feet and eight feet has any thing to do with it(3). He may cut the thing as much wider as he will, if he enlarges it into his own

land.

The plaintiff, on the 6th of June, 1804, agreed with the defendant for the purchase of a standing crop of mowing grass, then growing in a close of defendant's. The grass was to be mowed, and made into hay, by the plaintiff but the time at which the mowing was to begin was not fixed, Possession of the close was retained by the defendant. Before the plaintiff had done any act towards carrying the agreement into effect, the defendant refused to complete the agreement, and sold the grass to another person, whom he directed to cut and carry away the same. Trespass quare clausum fregit was brought, stating in the declaration that the close was in the possession of the plaintiff. Lord Ellenborough, C. J. said, that as the plaintiff appeared to have been intitled (if intitled at all under the agreement stated) to the exclusive enjoyment of the crop growing on the land, during the proper period of its full growth, and until it was cut and carried away, he might, in respect of such exclusive right, maintain trespass against any person doing the

Rolls v. Rock, Somerset Summ, Ass. i Per Lawrence, J, in Vowles v. Miller, 2 Geo. 2. per Frobyn, J. MSS. 3 Taunt, 138. h Per Bayley, J. in Gny 9. West, Sok Crosby v. Wadsworth, 6 East, 602. merset Summ. Ass. 1809.

(3) It had been contended, that the party to whom the hedge and ditch belonged, was entitled at common law to have a width of eight feet, as the reasonable width for the base of his bank and the area of his ditch together.

1

acts complained of, according to the authority of Inst. 4. b. Fitz. Abr. Tres. 149., and Bro. Abr. Tres. 273, and Wilson v. Mackreth, 3 Burr. 1826. But the court were of opinion, that, as the agreement was by parol, it was competently dis charged by parol while it remained executory, and that on this ground the plaintiff was not intitled to recover,

The action of trespass' quare clausum fregit is a local ac tion. Hence, where trespass was brought for entering the plaintiff's house in Canada, it was holden that the action could not be maintained; Buller, J. observing, it is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local actions; it is sufficient for the courts, that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here, which are in their nature transitory, though arising out of a transaction abroad, but not such as

are in their nature local."

The action of trespass vi et armis is termed a possessory action, to distinguish it from those actions in which the plaintiff must shew a title. Being founded on an injury to the possession, it is essential that the plaintiff should be in the possession of the close at the time when the injury is committed; but as against a stranger or wrong doer, it is immaterial whether such possession be founded on a good title or not. Even a tortious possession will support trespass against a wrong doer.

The plaintiff declared in trespass upon his possession"; defendant made title, and gave colour to the plaintiff; plaintiff replied de injuria suâ propriâ, and traversed the title set out by the defendant; and upon demurrer, on the authority of Goslin v. Williams, P. 5 Geo. 1, the court held this a good replication; for it lays the defendant's title out of the case, and then it stands upon the plaintiff's possession, which is enough against a wrong doer, and the plaintiff need not reply a title.

In like manner it was holden, that plaintiff, in possession of glebe land under a lease, void by stat. 13 Eliz. c. 20. by reason of the rector's non-residence, might maintain trespass against a wrong doer (4).

Doulson v. Matthews and another, 4 T. R. 503.

m See Deut v. Oliver, Cro. Jac. 123.

a Cary v. Holt, Str. 1238. 11 East, 70. 11.

o Graham x, Peat, 1 East, 244.

(4) But in such case, a rector may recover in ejectment against his lessee. Frogmorton v. Scott, 2 East, 467.