persons as owners of a coach for carelessly and negligently driving their coach by their servant, &c., it appeared that at the time of the accident one of the defendants was himself driving, and it was insisted that the action ought therefore to have been trespass, and not case; but the court held the action to be rightly brought, for that the plaintiff had a right to sue all the defendants, and trespass could not have been maintained against them all. Moreton v. Hardern, 4 B. & C. 223. See also Branscomb v. Bridges, 1 B. & C. 145.; Smith v. Goodwin, 4 B. & Ad. 413.; Williams v. Holland, 10 Bing. 112. So where a person builds on a party wall and thereby darkens the plaintiff's windows, case lies; though trespass would also lie for building on the plaintiff's half. Wells v. Ody, 1 M. & W. 452. So where defendant diverts a water-course by a weir built partly on the plaintiff's land; per cur. ibid. And it seems that case lies for injuring the plaintiff's reversion in a house by mining under a contiguous house in the plaintiff's possession. Raine v. Alderson, 4 New Ca. 702. But it is not to be taken as a general principle that case lies for every consequential injury arising out of a substantive trespass. Per cur. Hensworth v. Fowkes, 4 B. & Ad. 458, 460.

(3.) Where the injury is not immediate but consequential, trespass will not lie, and case is the proper remedy. "In all the books the invariable principle to be collected is, that where the injury is immediate on the act done, there trespass lies; but where it is not immediate on the act done but consequential, then the remedy is in case." Per Le Blanc J., Leame v. Bray, 3 East, 593.; Covell v. Laming, 1 Camp. 498.; Day v. Edwards, 5 T. R. 649.

(4.) Where the act arises by the negligence of the defendant's servant, trespass cannot be maintained, and case is the only remedy. Morley v. Gaisford, 2 H. Bl. 442.; Huggett v. Montgomery, 2 New Rep. 446. But if the master and servant are sitting together, and the servant is driving the master, the act of the servant is the act of the master, and the trespass of the servant is the trespass of the master; Chandler v. Broughton, 1 C. & M. 29.; for the master can control the servant; and the case differs from that of a pilot and shipmaster; for the pilot is independent. Per cur. ibid.; accord. Wheatley v. Patrick, 2 M. & W.652.

5. Where the property injured is not in the immediate possession of the owner but has been let to hire, the owner must bring case, and cannot maintain trespass; for it is in the nature of an injury to his reversion. Hall v. Pickard, 3 Camp. 187. But the mere gratuitous bailing of the property to another does not take it out of the possession of the owner, so as to prevent him from maintaining trespass. Lotan v. Cross, 2 Camp. 464.

What possession of the plaintiff is sufficient.] Any possession is sufficient property as against a third person who has no title at all. Com. Dig. Tresp. (B.4.); Nelson v. Cherrill, 8 Bing. 316. And therefore a mere wrongdoer cannot set up the title of the real owner under a plea denying the plaintiff's property. Carter v. Johnson, 2 M. & Rob. 263. The master of a ship or boat may bring trespass for an injury to it, though not his property. Moore v. Robinson, 2 B. & Ad. 817. And property is sufficient without possession; for the right of property draws to it the possession. Therefore where goods are taken after the owner's death and before probate granted to his executor, the latter, after pro

bate granted, may maintain trespass. Com. Dig. Tresp. (B. 4.); Smith t. Miles, 1 T. R. 480.; Dunwich v. Sterry, 1 B. & Ad. 831. So the lord of a manor may maintain trespass for an estray or wreck before seizure. Ibid. So the vendee of goods may bring it. though he never had possession. Thomas v. Prinsips, 7 C. & P. 573. So a person who has leased his land for years without any reservation of the timber may have trespass de bonis arportatis during the continuance of the term against a third person who wrongfully cuts down the timber, and carries it away. Ward e. Andrews, 2 Chitty's Rep., 636. But the lessee cannot maintain such an action. Evans v. Evans, 2 Camp. 491. Nor can the landlord of a furnished house, let to a tenant, bring trespass against the sheriff for taking the furniture in execution. Ward v. Macauley, 4 T. R. 489. If the owner of a chattel gratuitously permits another to use it, he may maintain trespass for an injury done to it by a third person while so used. Lotan v. Cross, 2 Camp. 464. But Lord Abinger was of opinion that where the plaintiff left a certificate of his character with the defendant, he could not maintain trespass for an injury to it while in the defendant's custody. Taylor v. Rowan, | M. & Rob. 491. Trespass does not lie for taking animals feræ naturæ, unless reclaimed or privileged ratione loci. Bac. Ab. Tresp. (E.)

Evidence to connect defendant with the trespass.] Though a party is not liable for the act of a stranger, as the postilion of a hired carriage, yet where the defendant sat on the box, and was heard to give directions, this was held evidence of a joint trespass in a case of collision. M.Laughlin v. Pryor, 4 M. & G. 48. Trespass against A. and B. for taking plaintiff's gun. Plaintiff proved that A. took, and afterwards delivered it to B., who refused to give it up to plaintiff; held that this did not make B. a joint trespasser by relation, unless it was taken for B.'s use or benefit. Wilson v. Barker, 4 B. & Ad. 614. For cases of relation, see post, Actions against Sheriffs. A pound-keeper is not liable for receiving goods distrained, unless he exceeds his duty or assents to the trespass. Badkin v. Powell, Cowp. 478. See further, Tresp. quare clausum fregit, post, p. 487.

Defence.

Evidence under the general issue.] Under the general issue the defendant might formerly shew that the goods in question were not the property of the plaintiff. Martin v. Podger, 2 W. Bl. 701. But this is altered by the rules of H. T. 4 W. 4., which provide that the plea of Not guilty shall operate as a denial of the defendant having committed the trespass alleged by taking or damaging the goods mentioned, but not of the plaintiff's property therein. Since these rules, the plea admits the property of the plaintiff, which must therefore be traversed, if disputed.

In trespass for taking goods, chattels, and effects, it is no variance to shew that they were fixtures. Pitt v. Shew, 4 B. & A. 206. And in trespass for injuring the plaintiff's cart, a variance in the person who was sitting in it is immaterial. Howard v. Peete, 2 Chitty's Rep. 315. Locking up the plaintiff's goods in a room which he had occupied, and refusing to let him have them till rent is paid, is not an act for which trespass de bonis &c. lies. Hartley v. Moxham, 3 Q. B. 701.

Although, in trespass for taking goods as a distress for rent, the defendant may give his justification in evidence under the general issue by stat. 11 Geo. 2. c. 19. s. 21., yet where the goods have been clandestinely removed from the premises, and afterwards seized by the defendant, the defence must be specially pleaded. Vaughan v. Davis, 1 Esp. 257.; Furneaux v. Fotherby, 4 Camp. 136.

Evidence on a plea denying property.] This traverse only denies what the plea of Not guilty formerly put in issue; mere possession is therefore still sufficient for the plaintiff as against a wrong-doer. Ashmore v. Hardy, 7 C. & P. 501., per Patteson J.; semb, accord. Nicolls v. Bastard, 2 C. M. & R. 659., in a case of trover. And the plea puts in issue the property, and not merely the possession. Harrison v. Dixon, 1 Dowl. & L. 454. Where the plaintiff proved on this issue that he had the goods by sale under an execution against B., the defendant was permitted to shew that the sale was fraudulent, and that he had himself taken them on an execution against B. Ashby v. Minnitt, 8 A. & E. 121. In trespass for several articles described in the declaration, if the jury find that some belong to the plaintiff and some to the defendant, the verdict must be entered distributively. Routledge v. Abbott, 8 A. & E. 592.

Some of the cases decided upon the new rules, in trover, seem applicable to trespass. See post, "Trover."

Evidence on the replication de injuriâ to a plea of justification.] Where, in trespass for taking goods, the defendant justifies under a fi. fa, and the plaintiff replies (admitting the writ), de injuriâ absque residuo, &c., he may shew that the acts of the defendant were not done really under or in execution of the writ, but for another purpose and under another claim, and that the writ and the proceedings under it were a mere contrivance to get possession of the goods. Lucas v. Nockells, 10 Bing. 157. See antè, Price v. Peek, p. 474. In trespass for taking goods, chattels, and effects, defendant pleaded Not guilty; and as to goods and chattels a distress for rent; and plaintiff denied the tenancy; held, that the plea covered the declaration, and that plaintiff could not shew at the trial that the defendant had taken some fixtures; but should have replied that fact. Twigg v. Potts, 1 C. M. & R. 89. Trespass for taking goods; plea, removal by defendant because they were incumbering the defendant's room; replication, de injuriâ, &c.; held that defendant did not prove his plea by shewing that he locked up the goods in the room and took away the key. Jones v. Lewis, 7 C. & P. 343. If this is correctly reported, it would appear that the replication de injuriâ did not merely put in issue the possession of the room, and the fact of incumbrance. But in a case where the defendant justified the removal of something which was wrongfully incumbering his close, the Court of Exchequer held that the wrongfulness of the incumbrance was not put in issue, but only the fact. Breton v. Knight, Exch. H. T. 1838. In Newton v. Harland, Ĭ M. & G. 644., the Court of C. P. held that a plea, stating a lawful possession of a house and a removal of the plaintiff therefrom, was not supported by proof of a forcible entry by the defendant into his own house which the plaintiff was wrongfully holding over. The principle of this decision seems open to question. See Browne v. Dawson, 12 A. & E. 624. cited infra.

Where the plaintiff declared for taking his cattle, and the defendant pleaded possession of a close called H. in which they were damage feasant, and plaintiff denied the possession of the said close in which, &c.; held, that it was not enough for the defendant to shew possession of a close called H., without also shewing it to be the close in which the cattle were trespassing. Bond v. Downton, 2 A. & E. 26.

Damages.] In trespass for taking goods under process in a place out of the jurisdiction of the court, the plaintiff is entitled to the value of the goods, and not merely to the damage sustained by reason of the taking in a wrong place. Sowell v. Champion, 6 A. & E. 407. In trespass for destroying a pieture, the defendant may shew under Not guilty that it was a scandalous libel; and the plaintiff shall only recover the value of the canvass and paint; Du Bost v. Beresford, 2 Camp. 511.; and quære, if he be entitled to recover at all? Fores v. Johnes, 4 Esp. 97. Where a landlord distrains privileged goods, and the tenant thereupon pays the rent, he cannot recover, in trespass against the landlord, more than the value of the goods so taken. Harvey v. Pocock, 11 M. & W. 740. A vendor, who retakes goods sold to the plaintiff, is liable to the full value, and cannot reduce damages by setting off the unpaid price. Gillard v. Brittan, 8 M. & W. 575.

TRESPASS QUARE CI.AUSUM FREGIT.

The evidence in this action varies according to the terms of the issue joined between the parties.

Evidence of possession.] In order to maintain this action the plaintiff ought to prove possession, actual or constructive. Topham v. Dent, 6 Bing. 516. Any possession is a legal possession as against a wrong-doer. Graham v. Peat, 1 East, 246.; Catteris v. Cowper, 4 Taunt. 547.; Oughton v. Seppings, 1 B. & Ad. 241. But a party who obtains possession by a trespass cannot maintain this action against the person whom he has dispossessed, and who forcibly reinstates himself; and this state of facts may be shewn under a denial of the property in the plaintiff. Browne v. Dawson, 12 A. & E. 624. A person occupying crown lands under a parol licence has such a possession as entitles him to maintain trespass against a wrong-doer. Harper v. Charlesworth, 4 B. & C. 574. So where overseers enclose waste land without consent of the lord of the manor, they may bring trespass against a mere stranger. Matson v. Cook, 4 New Ca. 392. So if a tenant holds over after the expiration of his lease, or incurs a forfeiture by committing waste or otherwise, yet if the landlord permits him to continue in actual possession he may maintain trespass against any person entering upon him, and not having a better title than himself. Per Littledale, J., Harper v. Charlesworth, B. & C. 594.; Com. Dig. Trespass (B. 1). But persons, who have merely a right to enter upon the locus in quo for the purpose of doing certain acts, cannot maintain trespass. Dyson v. Collick, 5 B. & A. 603. Therefore commissioners of sewers under the statute 23 H. 8. c. 5. have not such a possession of their works as will enable them to

maintain trespass for breaking down a wall, or dam, erected by them across a navigable river. Duke of Newcastle v. Clark, 8 Taunt. 602. So persons who are authorised by Parliament to make navigable certain rivers, have no interest in the soil of a bank formed of the earth excavated from the channel of a river, so as to entitle them to support trespass for an injury to such bank. Hollis v. Goldfinch, 1 B. & C. 205. But where certain private individuals contracted with the proprietors of a navigation to form a canal, and erected a dam of earth and wood upon a close with the permission of the owner for the purpose of completing their work, it was held that they had a sufficient possession to support trespass against a wrong-doer. Dyson v. Collick, supra. The occasional possession of the key of a chapel in order to preach there is not sufficient to maintain trespass. Revett v. Brown, 5 Bing. 7.

Where a party has an interest in the soil, it is not necessary for this action that he should have an exclusive possession. Thus the owner of the soil of a street, dedicated to the public, may maintain trespass for an injury to the freehold; Lade v. Shepherd, 2 Stra. 1004.; so also the owner of a market. Mayor of Northampton v. Ward, 1 Wils. 107.

Evidence of possession — property or interest in the soil not necessary.] We have seen that an interest in the soil, without an exclusive use of it, is enough to support trespass. On the other hand exclusive possession, without property or interest in the soil, is sufficient for this action: Thus one who has the herbage (Co. Litt. 4. b. Welden v. Bridgewater, Cro. Eliz. 421. ; Vin. Ab. (Trespass)); or the vesture or pasture of a close (Co. Litt. 4. b. B. N. P. 85., Parker v. Staniland, 11 East, 366.; Evans v. Roberts, 5 B. & C. 837.), may maintain trespass. So a person entitled to the exclusive enjoyment of a crop growing on land during the proper period of its full growth, and until it be cut and carried away, may, in respect of such exclusive possession, maintain trespass. Per Lord Ellenborough C. J., Crosby v. Wadsworth, 6 East, 609.; Tompkinson v. Russell, 9 Price, 287. So where a person has an exclusive right of digging turves; Wilson v. Mackreth, 3 Burr. 1824; or a grant of underwood; Hoe v. Taylor, Cro. Eliz. 413. So the owner

of a free warren for breaking his free warren. F. N. B. 86., M.; Com. Dig. Trespass, (A. 2.) Lord Dacre v. Tebb, 2 W. Bl. 1151.; Smith v. Kemp; 2 Salk. 637.; but not for breaking his close; Y. B. 5 H. 7 & 10., cited Welden v. Bridgewater, Cro. Eliz. 421. And where a meadow is divided annually amongst certain persons by lot, after their several portions are allotted, each has an exclusive possession and may maintain trespass. Welden v. Bridgewater, Cro. Eliz. 421.; Co. Litt. 4. a. 48. A copyholder has such a possession of the mines under his land as to maintain trespass for taking coals, though there is no injury to the surface. Lewis v. Branthwaite, 2 B. & Ad. 437.

Evidence of possession — actual and immediate.] It must appear that the plaintiff was in the actual and immediate possession of the locus in quo when the trespass was committed. Therefore an heir before entry, who has only a seisin in law, cannot maintain trespass. Com. Dig. Trespass (B. 3.) Nor a bargainee before entry. Ibid. Barker v. Keat, 2 Mod. 251. Geary v. Bearcro t, Cart. 66.; but see Anon. Cro. Eliz. 46. Neither the conusee of a fine (Berry v. Goodman, 2 Leon. 147. Arg.), nor a devisee (Anon. 2 Mod. 7., Geary v. Bearcroft, Bridgm. Judgm.495.),