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by Means of which fhe continued abfent till her Death, whereby he loft the Comfort and Society of his Wife, and the Advantage which he ought to have had from fuch real and perfonal Eftate. After Verdict for the Plaintiff for 3000l. Damages, it was moved in Arreft of Judgment, that this was an Action prime impreffionis. But the Court faid that every special Action on the Cafe was in itself a Novelty; no Action lies without Damages, and the per quod will not alone be fufficient, unless the Act done be illicit; but though a bare Inticement to depart may not be actionable, yet the Jury under the Direction of the Judge are Judges of the Legality: And as receiving a 2 Lev. 63. Servant fcienter is a Ground for an Action for the Mafter, 2 Saund. 169. a fortiori for the Hufband; and Injuries, that are in their Vidian's Nature of spiritual Conufance, if attended with a tem- Entr. 85. poral Damage, are a Ground of Action.

So fhooting off a Gun, per quod the Plaintiff's Decoy was damaged, was holden to be actionable in Hickeringal's Cafe. Hil. 5 An.

2 Sid. 170.

It is impoffible to fet down all the Cafes in which an Action upon the Cafe will lie for confequential Damages : I fhall therefore conclude this Head with referring to the fifth Chapter of the firft Book, and repeating the Rule already taken Notice of in that Chapter, viz. Where I Str. 635. S.P. the immediate Act itself occafions a Prejudice, or is an Injury to the Plaintiff's Perfon, Houfe, Land, &c. Trefpass vi et armis will lie; but where the Act itself is not an Injury, but a Confequence of that Act is prejudicial to the Plaintiff's Perfon, Houfe, Lands, &c. Trefpafs vi et armis will not lie: But the proper Remedy is an Action upon the Cafe. The Cafe of Pitts v. Gaince and Forefight may ferve to illuftrate this Rule.

There the Plaintiff

declared in an Action upon the Cafe, for that he was Mafter of a Ship, and that it was laden with Corn ready to fail, and that the Defendant feized the Ship and detained her, per quod impeditus fuit in Viagio. It was objected that it fhould have been Trefpafs, and fome Cafes cited; but Holt Ch. Juft. faid, That in the Cafes çited the Plaintiff had a Property in the Thing taken, but here the Ship was not the Master's but the Owners; the Master only declares as a particular Officer, and can only recover for his particular Lofs; though he said he might have brought Trefpafs, declaring upon his Poffeffion, which in Trefpafs is fufficient.

Salk. 10.

BOOK

80

BOOK III.

For what Injuries affecting a Man's real
Property, an Action may be main-

tained.

INTRODUCTION..

HE Actions, which may be brought for Injuries affecting a Man's real Property are of three Sorts,

1. Such in which Damages alone are to be recovered. 2. Such by which a Term for Years may be recovered. 3. Such by which a Freehold may be recovered.

The Actions in which Damages alone are to be recovered

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The only Action by which a Term for Years may recovered, is Ejectment.

be

The Actions by which a Freehold may be recovered, are,

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TH

CHAPTER I.

Of Trefpaís.

HE Action of Trefpafs lies for an Injury done by one private Man to another, where the immediate Act itself occafions the Injury either to his Perfon, Goods or Lands; and though in this Place I ought regularly to treat only of the laft, yet (as I before promised) I fhall likewife take into my Confideration the second, having already spoken of the first as far as is neceffary.

Where Entry, Authority or Licence is given to any The fix Carpenone by the Law, and he does abuse it, he will be a Tref- ters Cafe. paffer ab initio; but where it is given by the Party, he 8 Co. may be punished for the Abufe, but he will not be a Trefpaffer ab initio. But the not doing cannot make the Party, who has Authority or Licence by the Law, a Trefpaffer ab initio, because not doing is no Trefpafs.

In Trefpafs for taking a Gelding, the Defendant jufti- Cr. J. 147. fied the taking of him as an Estray, the Plaintiff replied that he laboured the faid Gelding, riding upon him and drawing with him, whereby he was much damnified; the Defendant demurred, and it was objected that the first Seizure was lawful by the Plaintiff's own fhewing, and therefore the Action should not have been brought for the Taking, but for the fubfequent Tort; but the Court held that he was punishable for the Abuse in an Action of Trefpafs, as a Trefpaffer ab initio, and that the ufing of the Estray was an Abufer; for it is not lawful except in Cafe of Neceffity, and for the Benefit of the Owner; as to milk Milch Kine, &c.

In Trespass for taking away his Goods, the Defendant Salk. 221. juftified the taking nomine diftrictionis Damage-Feafant; Gargrave and the Plaintiff replied quod poft diftrictionem, viz. eodem Smith. die, &c. he converted them to his own Ufe. On Demurrer it was holden to be no Departure, but to make good the Declaration, for he that abufes a Distress is a Trefpaffer ab initio ; and it would be of no Avail to the

Plaintiff to ftate the Converfion in his Declaration, for Sir Ralph Boit is no way neceffary to his Action; and if alledged, vey's Cafe, need not be answered: It would be out of Time to ftate Ventr. 217. it in the Declaration, but it must come in in the Repli

cation.

But

Str. 851.

Hutchins and
Chamber,
M. 31 G. 2.
S. P. Burr,
590.

Browning and
Dann. 9 G. 2.

Charlwood and

Best. Westminster 1748.

Hutchings v.
Chamber & al'.
Mic. 31 G. 2.
K. B.

Hardr. 480.

10 Co. 76.

But in Trafpafs for breaking and entering his House, and taking an exceffive Diftrefs, after Judgment by Default, it was holden on Error brought that Trespass would not lie; for the Entry was lawful, and there is nothing fubfequent to make it a Trefpafs, as there is where the Diftrefs is abufed. At common Law the Party might take a Diftrefs of more Value than the Rent, therefore that did not make him a Trefpaffer ab initio, but the Remedy ought to be by special Action founded upon the Statute of Marleberge.

And note, That in Diftrefs for Rent, if the outward Door be open the Diftrainant may juftify the breaking open an inner Door or Lock, in order to find any Goods which are diftrainable.

By 11 G. 2. c. 19. A Diftrefs for Rent fhall not be deemed unlawful for any Irregularity in the Diípofition of it afterward, nor the Party making it a Trefpaffer ab initio; But the Party aggrieved may recover full Satisfaction for the fpecial Damage he fhall have fustained thereby, and no more in an Action of Trespass or on the Cafe, unless Tender of Amends have been before made.

By 17 G. 2. c. 38. Where any Diftrefs is made for Money justly due for the Relief of the Poor, it shall not be deemed unlawful, nor the Party making it a Trefpaffer, on Account of any Defect or Want of Form in the Warrant of Appointment of such Overfeers or in the Rate or Affeffments, or in the Warrant of Diftrefs thereupon; nor fhall the Party be deemed a Trefpaffer ab initio on Account of any Irregularity which fhall afterward be done by him; but the Party grieved may recover for the fpecial Damage, unlefs Tender of Amends have been before made.

Note; A Warrant may be made to diftrain before the Time for which the Rate is made is expired.

It hath been determined that Averia Carruce may be diftrained for the Poor's Rate, though there be fufficient Goods on the Premises independent of them; and the Law feems to be the fame in all Cafes where an Act of Parliament gives Remedy by Diftrefs and Sale. And though where a Man has an entire Duty, he shall not fplit and diftrain for diftinct Parts at feveral Times, yet if he be mistaken in the Sufficiency of what he has taken, there is no Reason or Law that he should not distrain again for the Refidue.

Where the Subject-Matter of the Suit is within the Jurifdiction of the Court, but the Want of Jurifdiction is as to the Person or Place, unless the Want of Jurifdic

tion

tion appear on the Process to the Officer who executes it, he is not a Trefpaffer: But where the Subject-Matter is not within the Jurifdiction, there every Thing done is abfolutely void, and the Officer a Trefpaffer.

Though an Officer may juftify under the mefne Pro- Higginíon v. cefs of an inferior Court, without faying that the Caufe Martin and of Action arofe within the Jurifdiction, yet when he Hadley, M. juftifies under Procefs of Execution he ought to make it 28 Car. 2. Rot. 416. appear that the Caufe arofe within the Jurifdiction of the Court, or at leaft that it was fo laid: But that would not be fufficient for the Plaintiff himself; he ought to know the Extent of the Jurifdiction for which he applies for Juftice; and therefore if in an Action of falfe Imprifonment he juftified under the Procefs of an inferior Court, the Plaintiff above might reply that the Caufe of Action arofe out of the Jurifdiction of the Court; and a Rejoinder praying Judgment if the Plaintiff, having by his pleading in the inferior Court admitted the Jurifdiction there, shall now be admitted to deny it here, would not be good.

But by 24 G. 2. (quod vide ante) no Conftable will be anfwerable for obeying a Juftice's Warrant, notwithftanding any Defect of Jurifdiction in the Juftice.

Note; That Warrant ex vi termini means only an Au- Padfield and thority; therefore a Warrant under the Hand of the Cabbel & al'. Tr. 16 & 17 Juftice is fufficient without being under Seal, unless particularly required by Act of Parliament.

And note, That by 27 G. 2. c. 20. in all Cafes where any Juftice is impowered, by any Act made or to be made, to iffue a Warrant of Diftrefs, it fhall be lawful for him in fuch Warrant to order the Goods diftrained to be fold within a certain Time limited by fuch Warrant, fo that fuch Time be not lefs than four, nor more than eight Days, unless the Money for which fuch Distress fhall be made, together with the Charges of taking and keeping fuch Diftrefs, be fooner paid.

G. 2. C. B.

Proof that the Plaintiff had delivered a Box with the Moor 248. Goods in it to the Defendant to keep, and that the Defendant had broken open the Box and converted the Goods to his own Ufe, would be fufficient to maintain the Declaration; for where-ever a Man has neither a general nor a fpecial Property, and he converts the Goods, Trespass will lie.

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