tread down his neighbour's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages. And the law gives the party injured a double remedy in this case; by permitting him to distrein the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction; or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases, of trespass committed upon another's land either by a man himself or his cattle, is the action of trespass vi et armis; whereby a man is called upon to answer, quare vi et armis clausum ipsius A. apud B. fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, etc.: for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any unwarrantable act of the [212] defendant or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages; such however as the jury shall think proper to assess.

In trespasses of a permanent nature, where the injury is continually renewed (as by spoiling or consuming the herbage with the defendant's cattle), the declaration may allege the 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 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 trespass committed (as cutting h Registr. 94.

i 2 Roll. Abr. 545. Lord Raym. 240.

+ Quoted, 57 N. H. 608. Cited, 6 Ind. 145; 7 Ind. 319; 3 Mich. 167; 43 Miss. 240; 9 N. J. L. 386; 3 Wend. 145; 20 Am. Dec. 679; 7 Watts & S. 369; 2 Humph. 553; 9 W. Va. 282.

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 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 there to demand or to 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 possesses 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 necessity 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 [see note 45, page 295], without [213] being guilty of trespass: which humane provision seems borrowed from the mosaical law." In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land; because the destroying such creatures is said to be profitable to the public. But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trespasser ab initio :P as if one comes into a tavern and will not go out in a reasonable time, but tarries there all night conLord Raym. 823. 7 Mod. 152.

k Salk. 638, 639.
1 8 Rep. 146.

m

Gilb. Ev. 253.

n Levit. c. 19. v.

o Cro. Jac. 321.

Trials per pais. ch. 15. pag. 438.
9. & c. 23. v. 22. Deut. c. 24. v. 19, etc.

p Finch. L. 47. Cro. Jac. 148.

*-* Quoted, 4 Blackf. 180. Cited, 25 Ind. 360.

trary to inclinations of the owner; this wrongful act shall affect and have relation back even to his first entry, and makes the whole a trespass. But a bare nonfeasance, as not paying for the wine he calls for, will not make him a trespasser; 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 cominon law made him a trespasser ab initio : and so indeed would any other irregularity have done, till the statute 11 Geo. II. c. 19. which enacts, that no subsequent irregularity of the landlord 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 [214] the law warrants the hunting of such noxious animals for the 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 account of the freehold and right of entry being in himself; and this defence brings the title of the estate

q 2 Roll. Abr. 561.

r

8 Rep. 147.

s Finch. L. 47.

t 8 Rep. 146.

u Cro. Jac. 321.

*Cited, 3 Humph. 477.

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 so usual as 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 suit, the right can only be ascertained, but no possession delivered;* nothing being recovered but damages for the wrong committed.†

In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c. 6. and 22 and 23 Car. II. c. 9. 136. that where the jury, who try an action of trespass, give less damages than forty shillings, the plaintiff shall 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 omits of two exceptions more, which have been made by subsequent statutes. One is by statute 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 full costs. 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 defendent plainly appears to [215] be to harrass and distress the plaintiff. 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 hawking, hunting, fishing, or fowling upon another's land. Upon this statute it has been adjudged, that *-* Quoted, 3 Munf. 206. Cited, 2 Nott & McC. 140. + Cited, 3 Munf. 218.

Cited as to words "wilful and malicious," 1 Sum. 398.

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."

NOTE OF THE AMERICAN EDITOR TO CHAPTER XII.

(45) The poor are allowed to enter and glean after harvest, page 212. In like manner the common law warrants the hunting of ravenous beasts, page 213.

Both these common-law rights have disappeared entirely from American law; not by legislation, or even by a change of decisions, but by that entire change in the convictions and circumstances of the people out of which all rules of the common law grow. I suppose that no right to glean as a legal right has ever been claimed in this country, and that no effort to hunt such beasts has ever been withstood: yet the right in both cases has equally disappeared.

w Lord Raym. 149.