Trespass quare clausum fregit lies against him who did the Against whom. trespass, and all aiding him (a), and a person may become a trespasser by previous command, or, where the trespass has been committed for his use or benefit, by subsequent assent (b); but a feme covert and an infant cannot make themselves trespassers either by prior command or subsequent assent. (c) Unless there be an actual assent to the trespass, either before or after it was committed, a master is not liable in trespass for the act of his servant; thus if a servant puts his master's beast into another man's land, he only, and not his master, is liable as a trespasser (d); but it is said that trespass may be maintained against a man, if his wife puts his cattle into the land of another. (e) By statute 6 Anne, c. 18, guardians, trustees, husbands seised in right of their wives, and tenants pur autre vie holding over without consent, are declared trespassers, but the act does not extend to tenants for years. (f) cattle, &c. The owner of animals mansuetæ naturæ is bound to confine For trespass by them on his own land, and if they escape and commit a trespass to the land of another, unless through the defect of fences, which the latter is bound to repair, the owner is answerable in an action of trespass (g), and if the cattle of A. be in the custody of B. and escape and commit a trespass, either A. or B. may, it is said, be sued at the election of the plaintiff. (h) But for damage done by animals feræ naturæ escaping from the land of one person to that of another, as by rabbits, pigeons, &c. an action cannot be supported. (i) Although where the entry into land is lawful, no action of Trespasses ab 510. As to a private stream changing its course. See Hale ubi sup. Br. Ab. Encroachm. 3. As to the right of soil in the sea shore, see Hale de jure maris, p. 31. Blundell v. Catterall, 5 B. and A. 295. Callis on Sewers, 54. As to land gained from the sea by accretion, Hale, p. 14. Dyer, 326, b. R. v. Ld. Yarborough, 3 B. and C. 91. As to islands arising in the sea, Hale, p. 56. Callis on Sewers, 44. (a) Com. Dig. Trespass, (C. 1). (b) Barker v. Braham, 3 Wils. 377. Badkin v. Powell, Cowp. 476. 4 Inst. 317. Vin. Ab. Trespass, (Q) (R. 2). (c) Co. Litt. 180, b. note (4) 357, b. (d) 2 Rol. Ab. 553, l. 25. Vin. Ab. Tresp. (Q). M'Manus v. Crickett, 65. (e) 2 Rol. Ab. 553, 1. 30. Com. Dig. Tresp. (C. 1). Sed quære; and see Keilw. 3, b. (f) Bull. N. P. 85. (g) Keilw. S, b. 2 Rol. Ab. 568, 1. 20. Viu. Ab. Tresp. (B). pl. 1. Com. Dig. Tresp. (C. 1). (h) Ibid. Gilb. Evid. 236, 4th edit. but see 1 Saund. 27, arg. Bateman's case, Clayt. 33. Bac. Ab. Tresp. (E. 2,) and ante. (i) Boulston's case, 5 Rep. 104, b. Hinsley v. Wilkinson, Cro. Car. 387. See Cooper v. Marshall, Burr. initio. Against whom, trespass can be supported, yet by a subsequent abuse of an authority in law, the party may become a trespasser ab initio, though a mere non feasance will not render him such. (a) Thus a lessor, who enters to view waste, and damages the house, or stays there all night; a commoner who enters to view his cattle, and cuts down trees (b), and a man who enters a tavern and continues there all night against the will of the landlord (c), an officer who neglects to remove goods attached, within a reasonable time, and continues in possession, are all trespassers ab initio. (d) A person distraining who remains in possession above five days, and disturbs the plaintiff (e), is a trespasser only for the period during which he remains in possession after the five days are expired. The abuse of an authority in fact to enter will not in general subject the party to an action of trespass as a trespasser ab initio. (f) Who must be joined. Of the Although, in general, one of several tort-feasors may be sued alone, yet in actions ex delicto for injuries to real property, one tenant in common may plead the non-joinder of his co-tenant in abatement. (g) The venue, in an action of trespass quare clausum fregit, is declaration. local (h), and therefore it has been decided that trespass will not lie in the English courts for entering a house in Canada. (i) Venue. Quod cum. The declaration must allege the trespass directly and positively, and not by way of recital, for that, on such a day, the defendant broke and entered, &c., and not for that whereas, but this objection must be taken advantage of on special demurrer; and in the Common Pleas, where the supposed writ is recited in 259. Bac. Ab. Game. If a dog break (a) Vin. Ab. Tresp. (G. a). Com. (b) 2 Rol. Ab. 561, 1. 27. Six Carpenters' case, 8 Rep. 146, b. (c) Rol. Ab. 561, l. 35. Com: Dig. Tresp. (C, 2). Perk. sec. 191. (d) Reed v. Harrison, 2 W. Bl. 1218. Aitkenhead v. Blades, 5 Taunt. 198. (e) Winterbourne v. Morgan, 11 East, 395. Messing v. Kemble, 2 Campb. N. P. C. 115; and see Etherton v. Popplewell, 1 East, 139. (ƒ) Six Carpenters' case, 8 Rep. 146, b. Bagshaw v. Gaward, Yelv. 96. Perk. sec. 191. Bac. Ab. Tresp. (B). (g) Com. Dig. Abatement, (F. 6). Mitchell v. Tarbutt, 5 T. R. 651. 1 Saund. 291, f. notes, 5th edit. (h) Com. Dig. Pleader, (3 M. 3). (i) Doulson v. Mathews, 4 T. R. 503. Shelling v. Farmer, 1 Str. 646, the declaration, the mistake is aided, and will not be a ground even of special demurrer. (a) Of the declaration. Some day must be mentioned, in the declaration, on which the Continuando. trespass must be alleged to have been committed, but the precise day is not material; and, in case of a single trespass, it will be sufficient to insert any day before the commencement of the astion. (b) It was formerly usual in actions of trespass quare clausum fregit, where there had been repeated acts of trespass, to declare with a continuando, that is, to allege that the defendant on such a day committed certain trespasses, (specifying them) continuing the said trespasses, from such a day to such a day, at divers days and times. But a continuando could not be alleged in a trespass, which was not capable of being continued, as where the trespass was one single act, such as cutting down a tree. (c) However, where in a declaration, several trespasses were stated, some capable of being continued and others not, and the continuando was not confined to the former, the court after verdict said, that they would re-. strain the continuando by intendment to those trespasses, which were capable of continuance. (d) And where the trespass was for taking ten loads of wheat, ten loads of barley, and ten loads of oats, continuing the said trespass from, &c. to &c., and there was a verdict for the plaintiff, the judgment was affirmed on error, the court observing, that where there are several things alleged, which may be done at several times, as in the case before them, although the trespass be laid on the first day, yet the continuando shall make distribution thereof, that part was done at one day, and part at another, within the time laid. (e) And where there were several trespasses laid in the declaration, and the continuando was confined to two of them, one of which was not capable of continuance, the court said, that though this was bad upon demurrer, yet that, after verdict, they would intend that no damages had been given for the erroneous continuando. (f) (a) White v. Shaw, 2 Wils. 203. Wilder v. Handy, 2 Str. 1151. Marshall v. Riggs, 2 Str. 1162. Com. Dig. Pleader, (3 M. 4). (d) Gillam v. Clayton, 3 Lev. 93. (e) Butler v. Hedges, 1 Lev. 210. (b) Co. Litt. 283, a. Gilb. Evid. Raym. 239. As to what trespasses lie 238, 4th edit. (c) 2 Rol. Ab. 549, l. 41. Com. Dig. Pleader, (3 M. 10). 1 Saund. 24, notes, 5th edit. Vin. Ab. Tresp. (I). in continuance, see Vin. Ab. Trespass, 86. Of the The modern form of declaring for a continued trespass is, that declaration. the defendant, on such a day, and on divers other days and times, between that day and the commencement of the suit, committed the trespasses. (a) But an act which terminates on the commission, and which cannot therefore in its nature be continued, should not be laid to have been committed on divers days and times, as it would be bad on special demurrer (b); and if so laid, and not demurred to, objection should be made at the trial, and the plaintiff will not be permitted to give evidence of more than one act of trespass. (c) If the plaintiff intends to give evidence of repeated acts of trespass, he must confine himself to the time in the declaration, whether it be laid with a continuando, or in the modern way of divers days and times, but in either case he may, if he please, waive the time in the declaration, and prove a single trespass at any time before the action brought (d) Plaintiff's pos session. Certainty and locality of the premises. It must appear on the declaration, that the possession of the land, &c. to which the trespass has been committed was in the plaintiff, as that the defendant broke and entered a certain close " of the plaintiff” (e), and this defect is not cured by verdict, but it may be aided by the defendant's plea, admitting a possession in the plaintiff. (ƒ) It is not necessary to describe the close, &c. to which the injury has been committed, by its name, or to set out the abuttals (g), but if it be described by its name or by its abuttals, the proof must agree with the description, and a material variance will be fatal. Thus if the description be "on the south side, abutting on the mill of A.," the plaintiff must prove a mill there, and that it was in the tenure of A.; but it will be sufficient, though there be a highway between them. (h) Extreme strictness is not necessary in the proof of abuttals, thus if a close be described as abutting towards the east, but it proves to be north, inclining to east, it will be sufficiently described. (i) If the plaintiff declares See Co. (a) 1 Saund. 24, (n), 5th edit. (c) 1 Saund. 24 note, 5th edit. (ƒ) Brooke v. Brooke, 1 Sid. 184. (g) Martin v. Kesterton, 2 W. Bl. 1089. (h) 2 Rol. Ab. 678, l. 10. Bull. N. P. 89. Gilb. Evid. 237, 4th edit. Dyer, 161, b. (i) 2 Rol. Ab. 678, l. 13. Roberts v. Karr, 1 Taunt. 501. upon a trespass in a close, setting forth its abuttals, or its name, and proves a trespass in any part of that close, so abutted or named, the jury may find the defendant guilty as to that part, or a verdict may be entered generally for the plaintiff. (a) Where the locus in quo is stated to be situated in a certain parish, the proof must correspond with such statement. (b) If it is stated to be in the parish of A., it is enough if A. has a church and overseers of its own, although, perhaps, strictly speaking, it may be only a hamlet. In such an action, the court will not try a question of parochiality. (c) Of the declaration. The plaintiff may allege a matter in aggravation of damages, Special damage. though no action would be maintainable for it by itself, as an entry into his house, and battery of his wife and children. (d) But it was formerly held, that where the special damage may be made the subject of a distinct action, as in the above case, if the plaintiff had lost the services of his children, it cannot be recovered as matter of aggravation. (e) This distinction, however, is not supported by the modern practice. The rule now generally adopted is said to be, that if the special damage, laid in the declaration, arise out of the trespass committed on entering the house, and the acts done by the defendant to cause such special damage, constitute a part of one entire transaction, of which the trespass in the house was the commencement, the plaintiff will be allowed to prove them, notwithstanding they might have been the ground of a separate action. (ƒ) In a late case, where the declaration was for breaking and entering the plaintiff's house, and without probable cause, and under a false and unfounded charge that the plaintiff had stolen property in her house, searching and ransacking the same, and making disturbance, &c., it was held that the trespass was the substantive allegation, and the rest was laid as matter of aggravation only, and that the jury might give damages for the trespass, as aggravated by those accompanying circumstances. (g) (a) Winkworth v. Man, Yelv. 114. Buil. N. P. 89. Stevens v. Whistler, 11 East, 51. (b) Taylor v. Hooman, 1 B. Moore, 161. Holt's N. P. C. 523, S. C. (c) Per Ld. Ellenborough, Anon. 2 Campb. N. P. C. 4, (n). As to primâ facie evidence of the house being within the parish, see ante, p. 582. (d) Newman v. Smith, 2 Salk. 642. (ƒ) 2 Phill. Evid. 184, 6th edit. |