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IV. TRESPASS.

In general.

The term trespass, in its most extensive signification, includes every description of wrong (d), on which account an action on the case has been usually called "trespass on the case;" but technically, it signifies an injury [191] committed vi et armis, the meaning of which words is explained in Co. Lit. (e). The action of trespass (392) only lies for injuries committed with force, and generally only for such as are immediate (ƒ). Force, we have seen, may be either actual or implied; and the distinctions between immediate and consequential injuries have already been considered (g). The words contra pacem should uniformly accompany the allegation of the injury, and in some cases are material to the foundation of the action. An action of trespass to land not within our king's dominions cannot be sustained (h); for the venue in trespass to realty is local, and there is not therefore any county into which the writ can in such case be issued (i). It has been doubted whether trespass for an assault committed out of the king's dominions can be supported (k); though as the fine, in strictness of law payable to the king for the violation of the public peace, is no longer regarded (1), and the words contra pacem are not traversable (m); and the venue is transitory; it should seem that an action for such injury, or for an injury to goods in a foreign country, might be supported. The intention of the wrong-doer is in general immaterial in this action (n); and where the defendant has been acquitted of a felonious taking he may be sued for the trespass (0).

This action cannot be sustained where the wrong complained of was a nonfeasance, as for not carrying away tithes, &c. (p); or where the matter affected was not tangible, and consequently could not be immediately injured by force, as reputation, health, &c. (q); or where the right affected is incorporeal, as a right of common or way, &c. (r); or where the plaintiff's interest is in reversion, and not in possession (s); or where the injury was not immediate but consequential (1). We will consider the particular applicability of this *192] remedy to the different injuries committed by force to the person, or *personal or real property; and as there are material distinctions between the remedy for these injuries when committed under color of suit or process, and when not, we will consider the action of trespass under the following heads :—

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(392) As to the history of this action, vide 1 Reeve's Hist. E. L. 263, 266, 340, 347. 3 Reeve's Hist. E. L. 84, 89.

I. When it lies for injuries not committed under color of legal proceed

ings.

1. For the parties' own act.

1. Injuries to the person.

2. To personal property.

3. To real property.

2. For the acts of others, and of cattle, &c.

II. When trespass lies for injuries under color of legal proceedings (u).

IV.

TRESPASS.

FIRST, FOR INJURIES NOT UNDER PROCESS.

ries to the

person.

Trespass is the only remedy for a menace to the plaintiff, attended with con- 1st. Injusequent damages (x); and for an illegal assault, battery, and wounding, or imprisonment, when not under color of process (y). It lies also when the battery, imprisonment, &c. were in the first instance lawful, but the party by an unnecessary degree of violence became a trespasser ab initio (z)(393); and for a wrongful imprisonment after the process is determined (a); or for an assault after an acquittal for a felonious assault and stabbing (b). So it lies for an injury to the relative rights occasioned by force, as for menacing tenants, servants, &c. and beating, wounding, and imprisoning a wife or servant (c), whereby the landlord, master, or servant, hath sustained a loss; though the injury, the loss of service, &c. were consequential, and not immediate. It lies for criminal conversation (d); seducing away a wife (e), or servant (f); or for debauching the latter (g); force being implied, and the wife and servant being considered as having no power to consent; and a count for beating the plaintiff's servant, *per quod servitium amisit, may be joined with [193] other counts in trespass (h); and though it has been usual to declare in case for debauching a daughter (i), it is now considered to be preferable to declare in trespass (k).

property.

The action of trespass, in its application to injuries to personal property, 2dly. To may be considered with reference, 1st, to the nature of the thing affected; personal 2dly, the plaintiff's right thereto; 3dly, the nature of the injury; and the situation in which the defendant stood, as whether tenant in common, bailee, &c.

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(e) Fitz. N. B. 89; 6 East, 387.

(ƒ) 5 T. R. 361; 7 Mod. 81; 2 Salk. 552; 20 Vin. Ab. 470.

(g) Bac. Ab. Trespass, C. 1; 3 Wils.
562, 18, 19; 2 New Rep. 476; 2 M. & Sel.
436.

(h) 2 M. & Sel. 436; 2 New Rep. 476.
(i) 2 T. R. 167, 168; 20 Vin. Ab. 470;
6 East, 387.

(k) 2 New Rep. 476; 2 M. & Sel. 436.

(393) Pease v. Burt, 3 Day, 485. Elliott v. Brown, 2 Wend. R. 497. The State v. Wood, 1 Bay, 351. 15 Mass. R. 347, 365. In the case of an assault and battery both parties may be guilty of a breach of the peace and may be indicted; but a civil action cannot be brought by each against the other. Although the defendant may have been the aggressor, yet if the plaintiff had used not only more force than was necessary for self defence, but had unnecessarily abused the defendant, he cannot recover damages; but must pay damages. Elliott v. Brown, 2 Wend. R. 497.

VOL. I.

23

IV. TRESPASS.

And first, as to the nature of the thing affected: trespass lies for taking or injuring all inanimate personal property, and certain domiciled and tame ani1. The na- mals, of which the law takes notice, as dogs, &c. (1), and all animals usually personal marketable, as parrots, monkies, &c. (394) and in which case it is not necesproperty. sary to show in the pleadings that they have been reclaimed (m). In the case

ture of the

of a hawk, pheasant, hare, rabbit, fish, or other animals fera naturæ, and not generally merchandizable, it should be shown in the pleadings that the same were reclaimed or dead, or at least that the plaintiff was possessed of them (n). So it lies in some cases for taking animals feræ naturæ, and not reclaimed; as if a hare or rabbit be killed on the land of another, he having a local property ratione soli in such hare or rabbit, may support trespass for taking it, though the wrong-doer did not enter on the land (o)(395); and if game be started on the land of A. and pursued and killed on the land of B., A. may support trespass for taking the hare, if he also pursued the same, for by the pursuit he prevented an abandonment of his local property (p) (396). The same rules [*194] prevail in the case of fish (q). In *actions of trespass for taking or killing animals feræ naturæ not reclaimed, it is advisable in pleading to state also an entry, if any, on the plaintiff's land (r); and it is said that trespass for killing rabbits, without complaining of such entry, cannot be supported (s).

2dly. The

the interest

Secondly, With respect to the plaintiff's interest in the property affected, he nature of must, at the time when the injury was committed, have had an actual or a conin the per- structive possession (u) (397), and also a general or qualified property therein, (0) 2 Salk. 556; 1 Ld. Raym. 351; Godb. 123; 14 East, 249. (p) Id.

sonal property (t).

(1) 1 Saund. 84, n. 2, 3; Com. Dig. Ac-
tion, Trover, C.; Fitz. N. B. 86; Hob.
283; Cro. Eliz. 125; 3 T. R. 37, 38; see
Toller's Law of Executors, ist edit. 112,
where the particulars of personal property
are stated; Com. Dig. Trespass, A. 1.

(m) Cro. Jac. 262; 1 Saund. 84, n. 2.
(n) Bac. Ab. Trespass, 1, and Trover,
D.; Cro. Jac. 262; 1 Ventr. 122; Dyer,
306 b.; Cro. Car. 554. As to Fish, see
Bul. N. P. 79; 5 B. & C. 879. Case for
disturbing a decoy, &c. ante, 163.

(9) Cro. Car. 554.

(r) 43 Edw. 3, p. 24, 2; 1 Ld. Raym. 250; 11 Mod. 74; 2 Salk. 556; Cro. Čar. 554; Fitz. N. B. 86, 87, M. note a. A.

(s) 43 Edw. 3, p. 24, 2; Fitz. N. B. 87, A. c.; Cro. Car. 553, 554.

(t) See ante, 70, 149, as to who may sue in general in this action.

(u) 1 T. R. 480; 4 id. 490; 7 id. 9.

(394) Trespass vi et armis is a proper remedy by a parent for the taking away child. Vaughan v. Rhodes, 2 M'Cord's Rep. 227.}

his

(395) It seems that the owner of land may, in like manner, have a property ratione soli in bees, although they have not been hived or reclaimed by him. Gillet v. Mason, 7 Johns. Rep. 16. {But see Wallis v. Mease, 3 Binn. 546. }

(396) If A. starts a hare in the ground of B. and hunts it into the ground of C., and kills or catches it there, the property is in A., the hunter, who may maintain trespass against C. for taking away the hare. Sutton v. Moody, 1 Ld. Raym. 250, S. C. 2 Šalk. 556. Churchward v. Studdy, 14 East's Rep. 249. Mere pursuit of a wild animal does not, independent of title ratione soli, vest any property in the pursuer: manucaption is not, however, necessary; it is sufficient if the pursuer have rendered it impossible for the animal to escape. Pierson v. Post, 3 Caines' Rep. 175.

377.

(397) Vide Putnam v. Wiley, 8 Johns. Rep. 432. Carter v. Simpson, 7 Johns. Rep. 535. Hence, if a vessel has been seized by an officer of the customs as forfeited to the United States, and is afterwards acquitted, the owner cannot maintain trespass for an injury intermediate between the seizure and acquittal, since he has neither the actual possession, or the right to reduce her into possession. Van Brant v. Schenck, 11 Johns. Rep. {But where a deputy sheriff attached goods, carried them into Rhode Island, and delivered them to a bailee, taking his receipt, and the bailee put them into the hands of another person for safe keeping, it was held that the officer might maintain trespass, and recover damages, against mere strangers who took them away from the keeper in Rhode Island. Browne v. Manchester, 1 Pick. Rep. 232. And in such a case, the bailee might also, it has been held in New Hampshire, maintain the action. Poole v. Simonds, 1 New Hamp. Rep. 289. But a different decision has taken place in Massachusetts.. Ludden v. Leavit, Warren v. Leland, 9 Mass. Rep. 104, 265. }

IV.

TRESPASS.

which may be either, first, in the case of the absolute or general owner entitled to immediate possession; 2dly, the qualified owner coupled with an interest, and also entitled to immediate possession (x); 3dly, a bailee with a mere naked 2. Injuries to personauthority, unaccompanied with any interest, except as to remuneration for alty, not trouble, &c. but who is in actual possession; or 4thly, actual possession, though under prowithout the consent of the real owner, and even adverse.

These rules have been considered in detail in explaining the nature of the action of trover (y). It may, however, be useful to notice them here, particularly in those cases in which they have more immediate reference to the action of trespass.

cess.

In the first instance the person who has the absolute or general property may support this action; although he has never had the actual possession, or although he has parted with his possession to a carrier, servant, &c. giving him only a bare authority to carry or keep, &c. not coupled (398) with an interest in the thing (z); it being a rule of law that the general property of personal chattels prima facie, as to all civil purposes, draws to it the possession (a) (399). Therefore the owner of tithe may support trespass against the occupier of the land where it has been set out, for turning in cattle and injuring it (b). So the grantee of waifs, estrays, and wreck, within a *manor, [*195] or of felon's goods within a hundred, may, before seizure by him, maintain trespass against a wrong-doer (c); and the owner of a ship has, notwithstanding a charter-party, a sufficient possession thereof to support trespass (d). This rule holds by relation; as in case of executors and administrators, &c., who may support trespass for an injury to personal property committed after the death of the testator, or intestate, and before the probate or administration was granted (e); so may a legatee, after the executor has assented to the legacy, for a trespass committed before such assent (f). But if the general owner part with his possession, and the bailee, at the time when the injury was committed, have a right exclusively to use the thing, the inference of possession is rebutted, and the right of possession being in reversion, the general owner cannot support trespass (400), but only an action on the case, for an injury done by a stranger while the bailee's right continued (g). Nor can the general owner in such case support this action even against such bailee for mere abuse; though if a bailee destroy the thing, trespass may be supported if the injury were forcible. If, however, the general owner merely permit another gratuitously to use the chattel, such owner may sue a stranger in trespass for an injury done to it while it was so used (h),

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(d) 3 B. & Ald. 503; 5 Moore, 211; 2
B. & B. 410, S. C. ; 2 Y. & J. 310, 318.
(e) 1 T. R. 480; Bac. Ab. Executors,
H. 1; 2 Saund. 47 a.

(f) Bro. Ab. Trespass, pl. 25.

(g) 4 T. R. 489; 7 T. R. 9; 3 Lev. 209; 3 Campb. 187; 15 East, 607; ante, 174.

33.

(h) 2 Campb. 464; 3 id. 187; 16 East,

(398) Vide Putnam v. Wiley, 8 Johns. Rep. 435. Williams v. Lewis, 3 Day, 498. Thorp v. Burling, 11 Johns. Rep. 285. East's P. C. 564, 565.

(399) Vide Bird and others v. Clark, 3 Day, 272. 7 Conn. Rep. 235.

(400) Vide Putnam v. Wiley, 8 Johns. Rep. 482. Van Brunt v. Schenck, 11 Johns. Rep. 385. 7 Conn. Rep. 235.

IV.

TRESPASS.

cess.

In the second case also, that of the bailee who has an authority coupled with an interest, it should seem that trespass may be supported, though he never 2. Injuries had actual possession, for any injury done during his interest (i); as in the to personcase of a factor (401), or consignee of goods in which he has an interest in alty, not under pro respect of his commission, &c. (k). The quantity or certainty of the interest is not material, and therefore a shop-keeper may maintain trespass for taking goods sent to him on sale or return (1). So a tenant for years has a qualified property in trees whilst growing, and may support trespass for cutting them down unless they were excepted in the lease; though he cannot support this [*196] action merely for carrying the *trees away (m); and if a person have a right to cut all the thorns in such a place, he may sustain trespass against any one who cuts them down, even against the grantor; but if he have only a right of estovers, and the grantor cuts the whole, the remedy is case, and not trespass (n); and a mere gratuitous bailee (o), or an executor de son tort (p), may support this action. Other instances have been before given (q).

In the third instance, that of a bailee, &c. with a mere naked authority coupled only with an interest as to remuneration, he may also support this action for an injury done while he was in the actual possession of the thing; as a carrier, factor, pawnee, a sheriff, &c. (r) (402); but it is otherwise in the case of a mere servant (s); and if a sheriff omit to continue in possession of the goods under an execution, he cannot maintain the action (†).

An instance of the fourth description is the finder of any article, who may maintain trespass or trover against any person but the real owner (u) (403) ; and even a person not having a strict legal right, but being in possession, may, it seems, support this action against any person but the legal owner (x). So a person in possession under an assignment fraudulent as against creditors, may support trespass against a person who cannot show that he was justified in what he did as a creditor (y).

Assignees of a bankrupt, though they have a constructive possession from the time of the act of bankruptcy, cannot support trespass against a sheriff or any other officer acting in obedience to the process of a Court of competent jurisdiction, for seizing goods after a secret act of bankruptcy; because such

(i) Ante, 174; 1 B. & P. 45; 2 Saund.
47 d.

(k) 7 T. R. 359; 1T. R. 113; 1 Hen.
Bla. 81; Bul. N. P. 33; ante, 174, 175.
(1) 2 Campb. 575.

(m) 2 Campb. 491; 2 M. & Sel. 499.
See further as to trees, ante, 174.

(n) 2 Salk. 638; 2 M. & Sel. 499; 8

East, 394.

(0) 1 B. & Ald. 59.

(p) Ante, 173.

(401) Vide Colwill v. Reeves, 2 Campb. 575.

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(402) {Brown v. Manchester, 1 Pick. Rep. 232. } Vide Barker and Knapp . Miller, 6 Johns. Rep. 195. Gibbs v. Chase, 10 Mass. Rep. 125. Whether a depository may maintain trespass. Harrison v. M'Intosh, 1 Johns. Rep. 358. {See the cases cited, ante, p. 194, n. 3. Bare possession is in general sufficient to support this action against a wrong-doer. Hoyt v. Gelston and Schenck, 13 Johns. Rep. 141, 561.

(403) A bare possession is sufficient to enable the plaintiff to recover in trespass against a wrong-doer, who takes the property out of his possession without authority. Cook v. Howard, 13 Johns. Rep. 276. Demick v. Chapman, 11 ib. 132. Schermerhorn v. Van Valkenburgh, ib. 520. Aiken v. Buck, 2 Wend. R. 466. Butts v. Collins, 13 ib. 143.

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