the plaintiff appeared to have been entitled, (if entitled 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 acts complained of, according to the authority of 1 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 discharged by parol while it remained executory, and that on this ground the plaintiff was not entitled to recover. Where trees are excepted in a lease, the land on which they grow is necessarily excepted also; consequently, if the tenant cut down the trees, the landlord may maintain trespass for breaking his close and cutting down the trees (h). The property in bushes (i) is in the tenant, even where they are cut down by a stranger. If a tree grows near the confines of the land of two parties, so that the roots extend into the soil of each, the property (k) in the tree belongs to the owner of that land in which the tree was first sown or planted. Where two adjacent fields are separated by a hedge and ditch, the hedge primâ 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 (1). The rule about ditching is this (m): 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; therefore, if he afterwards cut beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser: no rule about four feet and eight feet has anything to do with it. He may cut the thing as much wider as he will, if he enlarges it into his own land.

The rule, that waste land near a highway is to be presumed primâ facie to belong to the owner of the land next adjoining, is not confined to a case where the owner of that land is a freeholder, but extends equally to cases where the owner is a copyholder (n): but in either case evidence may be given to rebut the presumption. The common user of a wall separating adjoining lands, belonging to different owners, is primâ facie evidence that the wall and the land on which it stands belong (o) to the owners of adjoining lands in

(h) Rolls v. Rock, Somerset Summ. Ass., 2 Geo. II., per Probyn, J., MSS. (i) Berriman v. Peacock, 9 Bingh. 384. (k) Holder v. Coates, 1 M. & Malk. 112, per Littledale, J.

(1) Per Bayley, J., in Guy v. West, Somerset Summ. Ass. 1808.

(m) Per Lawrence, J., in Vowles v.

Miller, 3 Taunt. 138.

(n) Doe d. Pring v. Pearsey, 7 B. & C. 304. See Doe d. Barrett v. Kemp, 2 Bingh. N. C. 102, ante, p. 757.

(0) Cubitt v. Porter, 8 B. & C. 257; recognized in Bradbee v. Christ's Hospital, 4 M. & Gr. 714; Wiltshire v. Sidford, ib. 259, n.

equal moieties as tenants in common. Secus, where the quantity of land, which each party contributes (p) is known, and the wall built at the joint expense of the two.

The action of trespass (q) quare clausum fregit is a local action (r). 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 show a title. Being founded on an injury to the possession, it is essential that the plaintiff should be in the actual 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 (s). Even a tortious possession will support trespass against a wrong-doer. The plaintiff declared in trespass upon his possession (t); 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. I., 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 (u), and the plaintiff need not reply a title. In like manner it was holden (x), 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. By induction the parson is put into possession of a part for the whole, and may maintain an action for a trespass on the glebe land (y), although he has not taken actual possession of it. The contractors for making a navigable canal having, with the permission of the owner of the soil, erected a dam of earth and wood upon his close, across a stream there, for the purpose of completing their work, have a possession sufficient to entitle them (z) to maintain trespass against a wrong-doer. Where wood-lands, and the timber thereon, belonged to the crown, and the plaintiff (a) paid a nominal rent to the crown for the privilege of shooting the game, and it appeared that a person, by leave from

(p) Matts v. Hawkins, 5 Taunt. 20. (q) Doulson v. Matthews and another, 4 T. R. 503.

(r) But see stat. 3 & 4 Will. IV. c. 42, s. 22, ante, p. 517.

(8) See Dent v. Oliver, Cro. Jac. 123. (t) Cary v. Holt, Str. 1238; 11 East,

70, n.

(u) Holmes v. Newlands, 11 A. & Ε. 52.
(x) Graham v. Peat, 1 East, 244.
(y) Bulwer v. Bulwer, 2 B. & Α. 470.
(z) Dyson v. Collick, 5 B. & A. 600.
(a) Harper v. Charlesworth, 4 B. & C.

him, cut and took away the grass from the sides: it was holden, that although he took no legal estate from the crown for non-compliance with the stat. 1 Ann. c. 7, s. 5, and could not therefore have maintained ejectment, nor even have retained possession as against the crown, yet that he might maintain trespass against a party having no title, and a wrong-doer; held also, that payment of the rent, the exercise of the privilege of shooting over the land, and the cutting of the grass by the plaintiff's permission, was sufficient evidence to go to a jury, and for them to find that he was in the actual possession of all but the trees. It seems that the plaintiff could not have been treated by the crown as an intruder. If a man be disseised, after his re-entry he may have an action of trespass against the disseisor for any trespass done by him after the disseisin (b); for by his re-entry his possession is restored ab initio. If he who has the right to land enters, he thereby acquires the lawful possession, and may maintain (c) trespass against any person who being in possession at the time of his entry, wrongfully continues upon the land; and a lessor, having entered at the expiration of the term, may sue in trespass persons claiming under the late tenant as well as the late tenant himself (d); but where a tenant remains in possession after the expiration of his term, the landlord is not justified in expelling him by force, in order to regain possession (e). It is not necessary that the party who makes the entry should declare that he enters to take possession: it is sufficient, if he does any act to show his intention.

By the common law, he that agrees to a trespass after it is done, is no trespasser, unless the trespass is done to his use (f) or for his benefit, and then his agreement subsequent amounts to a command; for, in this case, omnis ratihabitio retrotrahitur et mandato æquiparatur. But it is otherwise, if the trespass be not done to his use. A. having knowingly received from B. a chattel, (which B. has wrongfully seized,) upon demand refused to give it back to the owner; there was not any proof that the seizure was to A.'s use; it was holden (g), that A. was not a joint trespasser with B. That an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the known or well established law. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent and with all the consequences which follow from the

(b) 2 Rol. Abr. 554, pl. 5.

(c) Butcher v. Butcher, 7 B. & C. 399, recognizing Taunton v. Costar, 7 T. R. 432; ante, p. 677.

(d) Hey v. Moorhouse, 6 Bingh. N. C. 52, recognizing Butcher v. Butcher.

(e) Newton v. Harland, 1 M. & Gr. 644; 1 Scott's N. R. 474.

(f) 4 Inst. 317, cited by Parke, J., 4 B. & Ad. 616.

(g) Wilson v. Barker and Mitchell, 4 B. & Ad. 614.

same act, if done by his previous authority (h). Although every person has of common right a liberty of coming into a public market for the purpose of buying and selling (i), yet he has not of common right a liberty of placing a stall there, but he must acquire such liberty by a compensation, which is called stallage. Hence trespass may be maintained by the owner of the soil against a person who unlawfully places a stall in the market. The authority of the preceding case was recognized in the Mayor, &c. of Norwich, v. Swann, 2 Bl. R. 1117; where it was holden, that trespass would lie for setting tables in a market-place for the sale of goods without leave of the owner of the soil. The lord or owner of the soil may maintain trespass against a commoner (k), who is guilty of an entry on the common, for the purpose of chasing the conies there: for the commoner can justify an entry merely for the purpose of using his common.

Tenants in common ought to join in trespass quare clausum fregit; for if one tenant in common bring trespass qu. cl. fr. without his companion, it may be pleaded in abatement (l). In trespass vi et armis for taking and carrying away goods, it is not essentially necessary that the plaintiff should, at the time when the act was done which constitutes the trespass, have the actual possession of the thing which is the subject-matter of the trespass: it is sufficient, if he has a constructive possession in respect of the right being actually vested in him. Hence (m), if a lord be entitled to a waif and estray, within his manor, he may, before seizure, maintain trespass against a stranger who shall take away the waif or estray; for the right is in the lord, and a constructive possession, in respect of the thing being within the manor of which he is lord. So an executor (n) has a right immediately on the death of the testator, and this right draws after it a constructive possession from the time of the death of the testator. If a man gives me goods (o), which are at York, and before I have possession a stranger take them, yet I shall have trespass; because by the gift the property is in me, to which the law annexes possession. But semble that the gift must be by deed or instrument of gift (p). The owner of a piece of land granted liberty to A. (q) and his heirs to build a bridge on his land, and A. covenanted to build a bridge for public use, to keep it in repair, and not to demand toll. The bridge was built by A. of materials purchased at his expense: part of the materials of the bridge having been taken away by a wrong-doer; it was holden, that

(h) Per Tindal, C. J., delivering judgment of the court in Wilson v. Tumming, 6 Scott's N. R. 902.

(i) Mayor, &c. of Northampton v. Ward, 2 Str. 1238; 1 Wils. 107.

(k) Hadesden v. Gryssell, Cro. Jac. 195.
(1) Comyns Dig. Abatement (E. 10).
(m) F. N. B. 91, b.

(n) Fisher v. Youny, 2 Bulstr. 268. (0) Bro. Abr. Trespass, pl. 303.

(p) Irons v. Smallpiece, 2 B. & A. 551 post, p. 1358, and see Reeves v. Capper, 5 Bing. N. C. 136; 6 Scott, 877; 2 M. & Gr. 691, n.

(q) Harrison v. Parker, 6 East, 154.

the public had only a license to make use of the materials while they formed part of the bridge for the purpose of passage; and when they ceased to be part of the bridge, A.'s original property in them reverted to him, discharged of the right of user by the public, and consequently that A. might maintain trespass for the asportavit against the wrong-doer. In like manner, if the owner of land builds houses (r), and marks out a street, and assigns part of the land as a public highway; this will not be considered as a transfer of the absolute property in the soil, so as to prevent the owner from maintaining trespass for an injury to the soil, e. g., for placing the end of a bridge thereon.

An action of trespass lies against any person who gleans on another's ground after harvest (s); for a right to glean cannot be claimed by any person at common law. Neither have the poor of a parish legally settled such right. Trespass will lie (t) against a peace-officer who seizes goods under a search-warrant not specified therein. Though the freehold of the churchyard is the parson's, trespass lies at the suit of a person at whose expense a tomb-stone has been erected, against a person who wrongfully removes it from the churchyard and erases the inscription (u). It is a direct trespass to injure the person of another, by driving a carriage against the carriage wherein such person is sitting, although the last-mentioned carriage be not the property nor in the possession of the person injured (x). And although if a person does an injury by an unavoidable accident, an action does not lie, yet if any blame attaches to him, although he be innocent of any intention to injure, as if he drive a horse too spirited, or pull the wrong rein (y), or use imperfect harness, and the horse taking fright kills another horse, then trespass may be maintained.

Trespass will lie against a corporation aggregate, for an act done by their agent within the scope of his authority (z).

By stat. 21 Jac. I. c. 16, s. 3, all actions of trespass quare clausum fregit shall be commenced and sued within six years next after the cause of such actions.

II. Where Trespass cannot be maintained.

Ir the entry be warranted by law, it is not a trespass. Such is an entry to demand rent due for the enjoyment of the land, to take

(r) Lade v. Shepherd, Str. 1004.
(s) Steel v. Houghton and Wife, per
Lord Loughborough, C. J., Heath, J., and
Wilson, J.; dissentiente Gould, J., 1 H.
Bl. 51.

(t) Crozier v. Cundey, 6 B. & C. 232.
(u) Spooner v. Brewster, 3 Bingh. 136.
(x) Hopper and Wife v. Reeve, 7

Taunt. 698.

(y) Wakeman v. Robinson, 1 Bingh. 213. See Aldridge v. Great Western Co., 3 M. & Gr. 515; 4 Scott's N. R. 156; and Hall v. Fearnley, 3 Q. B. 919; 3 G. & D. 10; ante, p. 35.

(z) Maund v. Monmouthshire Canal Co., 5 Scott's N. R. 457; 4 M. & Gr. 452.