another who claims under him. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession, (by what means soever he acquired it) and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse.

CHAPTER XII.

OF TRESPASS.

THE second species therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass, in its 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. But in the limited and confined sense, in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.

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 apart from his neighbour's: 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, existing only in the contemplation of law, as when one man's lands 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.

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. But before entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in law. But now by the statute 6 Ann. c. 18. if a guardian or trustee for any infant, a husband seized jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall after the determination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers.

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 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.

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 thither to demand or pay money, there payable; or to execute, in a legal manner, the process of the law. Also a man may justify entering into an ino or public-house, without the leave of the owner first specially asked; because, when a man professes the keeping of such inn or public-house, he thereby gives a general license to any person to enter his doors. So a landlord may justify en tering 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.

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; 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 shall affect and have relation back even to his first entry, and make the whole a trespass. But a bare non-feasance, 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. 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.

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 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 be only 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 enacted, 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. 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. Statute 4 & 5 W. & M. c. 23. 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.

CHAPTER XIII.

OF NUISANCE.

A THIRD species of real injuries to a man's lands and tenements, is by nuisance. Nuisance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And naisances are of two kinds; public or common nuisances, which affect the public, and are an annoyance to all the king's subjects; for which reason we must refer them to the class of public wrongs, or crimes and misdemeanors: and private