of Edward IV. The same statement is made by Fitzherbert, and has been followed by other writers ever since his time. How are the two facts to be reconciled? I see no way of doing this but to suppose that after Bracton's time this remedy, which put the termor almost on the same footing with the freeholder (as he himself says), in some way disappeared from use, and a long interval followed in which the termor's estate was really as weak and defenseless as the modern writers assert it to have been, until the revival of the remedy for recovery of the term itself, as stated in the text: and that after this had occurred, the original existence of such a remedy in Bracton's time was forgotten altogether. This disappearance of the termor's remedy must have taken place (if at all), about the time when the doctrine of seisin was taking the form in which Littleton, Coke, and subsequent writers have made it familiar to us ; i. e., when seisin had become a strictly technical term, confined to the possession of the freeholder, instead of being loosely used for possession generally, as it cer tainly was down to Bracton's time. (See note 36 to book 2, at page 257.) This would of course lead to a stricter line of division between the freehold and the term, and have an unfavorable influence on the use of writs for the term which seemed appropriate to freehold. CHAPTER THE TWELFTH. OF TRESPASS. In the two preceding chapters we have considered such injuries to real property, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man's real property without any amotion from it. The second species therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass, in it's largest, and most extensive sense, *signifies any transgression or offence against the law of nature, of society, or of the country in which we live; whether it relates to a man's person, or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an action of trespass vi et armis in assault and battery will lie; taking or detaining a man's goods are respectively trespasses; for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law; so also non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance, or act of one man whereby another is injuriously treated or damnified, is a transgression, or trespass in it's largest sense; † for which we have already seen, that, whenever the act itself is directly and immediately injurious to the person or property of another, [209] and therefore necessarily accompanied a See pag. 123. 4 Previously, "by." *-* Quoted, 36 Miss. 611. Cited, 89 Ind. 536; 52 Tex. 128. +In this sense as equivalent to "private wrong," or at least to "tort," the term "trespass" is now seldom, if ever, used except in the Lord's Prayer; but only in that of " wrong with force." As to which see note , ante, page with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.* But in the limited and confined sense, in which we are at present to consider it, it signifies no more than tan entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property, in lands being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil: every entry therefore thereon without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury: "qui alienum fundum ingreditur, potest a domino, si is præviderit, prohiberi ne ingrediatur." But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another's lands (unless by the owner's leave, or in some very particular cases), as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained. Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare clausum querentis fregit. For every man's land is in the eye of the law inclosed and set b Inst. 2. 1. 12. -* Quoted, 4 Gratt. 154. Cited, 28 Conn. 214. apart from his neighbours: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, [210] existing only in the contemplation of law, as when one man's land adjoins to another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage.c One must have a property (either absolute or temporary) 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. 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 :* 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. 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 c F. N. B. 87, 88. d Dyer. 285. 2 Roll. Abr. 549. e Cro. Eliz. 421. f 2 Roll. Abr. 553. - Quoted with omission, 25 Vt. 122. Cited, 6 Ind. 145; 3 Mich. 167; 43 Miss. 240; 45 N. H. 476; 9 N. J. L. 386; 1 Swan, 103; 9 W. Va. 264, 282, +-+ Quoted, 11 Mass. 526. Cited, 70 Ill. 434; 5 Marsh. J. J. 336; 2 N. H. 13; 6 Rand. 17; as to pew in church, 27 Vt. 272. 3 BLACKST.-25. postliminii, supposes the freehold to have all along continued in him. Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrong-doer by a mode of redress, which was calculated merely for injuries committed against the land while in the possession of the owner. But by the statute 6 Ann. c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determninable upon a life or lives, shall after the determination [211] of their respective interests, hold over and continue in possession of the lands or tenements, they are now adjudged to be trespassors; and the reversioner or remainderman 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. And, by the statutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19. in case after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor is entitled to recover by action of debt, either at the rate of double the annual value of the premises, in case he himself hath demanded and given notice in writing, to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from any tenant having power to determine his lease, and he afterwards neglects to carry it into due execution. A man is answerable for not only his own trespass, but that of his cattle also: for, if by his negligent keeping they stray upon the land of another (and much more if he permits, or drives them on) and they there g 11 Rep. 5. 8 Previously, "rent." Quoted, 18 Vt. 298. Cited, 8 Ark. 473; 70 Ill. 434, 436; 69 Me. 400; 11 Mass. 527; 130 Mass. 101; 55 Miss. 401; 34 Mo. 419; 41 N. H. 120; 55 N. H. 545; 4 Denio, 425; 12 Wend. 679; 19 Wend. 509; 2 Ired. 43; 37 Am. Dec. 406; 85 Pa. St. 23; Rice, 71; 1 Yerg. 381; 6 Rand. 18. |