BOOK III.

FOR WHAT INJURIES AFFECTING A MAN'S REAL PROPERTY
AN ACTION MAY BE MAINTAINED.

INTRODUCTION.

THE actions, which may be brought for injuries affecting a man's

real property are of three sorts,

First. Such in which damages alone are to be recovered.
Second. Such by which a term for years may be recovered.
Third. Such by which a freehold may be recovered.

The actions in which damages alone are to be recovered are two,
I. Trespass.

II. Case; of which enough has been already said in the last
chapter of the last book.

The only action by which a term for years may be recovered is

Ejectment.

The actions by which a Freehold may be recovered are,

1. Writ of Right.

2. Formedon.

3. Dower.

4. Waste.

5. Assize.

6. Quare Impedit.

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CHAPTER I.

OF TRESPASS.

THE action of Trespass lies for an injury done by one private man to

another, where the immediate act itself occasions the injury either to his person, goods, or lands; and though in this place I ought regularly to treat only of the last, yet (as I before promised) I shall likewise take

into my consideration the second, having already spoken of the first as

far as is necessary. (a)

Where entry, authority, or licence is given to any one by the law, and he does abuse it, he will be a trespasser ab initio; but where it is given by the party, he may be punished for the abuse, but he will not be a trespasser ab initio. But the not doing cannot make the party, who has authority or licence by the law, a trespasser ab initio, because not doing is no trespass.-The Six Carpenter's Ca. 8 Jac. I. & Co. 146. (b) Estray.

(a) 1. To entitle a man to bring trover, the plaintiff must, at the time when the act, which constitutes the trespass, was done, either have the actual possession in him of the thing which is the object of the trespass, or else he must have a constructive possession, in respect of the right being actually vested in him. Per Ashhurst, J. in Smith v. Milles, 1 T. Rep. 480.

2. But he in whom the general property of a personal chattel is, may, although he has never been in the actual possession of it, maintain trespass for the taking or injuring thereof by a stranger; for a general property always draws to it a possession in law, which possession, in the case of a personal chattel, is, by reason of the transitoriness of its nature, sufficient whercon to found an action for the trespass. Bro. Trespass, 303. pl. 346. Hudson v. Hudson, Latch. 214. Fisher v. Young, 2 Bulst. 268. S. P.

3. In real property, the person only who has possession in fact, can maintain trespass for an injury done to it; for the having a general property in realty, does not, as in personalty, draw to it a possession in law. Bro. Trespass, pl. 38. 303. 346. Biding field v. Onslow, 3 Lev. 209. Hodson v. Hodson, Latch. 263. Fisher v. Young, sup.

If a tenant at will commit voluntary waste, as in pulling down houses, or felling of trees, it is said, the lessor shall have an action of trespass against him; Lit. s. 71: and Lord Coke adds, true it is that

trespass vi et armis lies, for the taking upon him power to cut timber, or prostrate houses, concerneth so much the freehold and inheritance, as it doth amount in law to a determination of his will. Co. Litt. 57. (a)

4. In actions which are in their nature transitory, though arising out of a transaction abroad, trespass will lie in this country, but not such as are in their nature local, as for entering a house in Canada, and expelling the plaintiff. Doulson v. Mathews, 4 T. R. 503.

(b) And the reason of this difference is, that, in the case of a general authority or licence of law, the law adjudges by the subsequent act quo animo, or to what intent he entered, for acta exteriora indicant interiora secreta. But when the party himself gives a licence or authority to do any thing, he cannot, for any subsequent cause, punish that which is done by his own authority or licence.

Not doing cannot make the party, who has authority and licence by law, a trespasser ab initio, because not doing is no trespass; and if lessor distrain for his rent, and thereupon the lessee tender him his rent and arrears, and requires the beasts again, and he will not deliver them, this will not make him a trespasser ab initio. So in replevin after tender, he shall recover damages only for the detaining.

Tender upon the land, before the distress, makes the distress tortious, so tender after distress, and before L 2 impounding,

Estray. In trespass for taking a gelding, the defendant justified the taking of him as an estray, the plaintiff replied that he laboured the said 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 shewing, and therefore the action should not have been brought for the taking, but for the subsequent tort: but the court held that he was punishable for the abuse in an action of trespass, as a trespasser ab initio, and that the using of the estray was an abuser; for it is not lawful, except in case of necessity, and for the benefit of the owner; as to milk milch kine, &c.-Bagshaw v. Goward, H. 1607. Cro. Jac. 147. Oxley v. Watts, M. 26 Geo. III. S. P. (a)

Damage-feasant.-In trespass for taking away his goods, the defendant justified the taking nomine districtionis damage-feasant; the plaintiff replied quod post districtionem, viz. eodem die, &c. he converted them to

impounding, makes the detaining, and not the taking, wrongful; but tender after impounding makes neither wrongful.

A merely accidental involuntary trespass may be justified, but a voluntary trespass cannot. Defendant and other persons came into one of plaintiff's closes, and one of defendant's dogs killed a deer of plaintiff's in an adjoining close, defendant calling him off; held that trespass will lie. Rex v. Shordike, 4 Burr. 2090. But where plaintiff's sheep were originally on defendant's ground, and defendant chased them off with his dog, and the dog pursued them (though called off by defendant) after they got on plaintiff's grounds, trespass will not lie. Mitten v. Faudrye, Poph. 161. cited in Rex v. Shordike, sup.

Plaintiff was landlord of a house, which he let to M. ready-furnished, and the lease contained a schedule of the furniture. An execution was issued against M. and the sheriff seized and sold the goods, after notice of property in plaintiff. Per Kenyon, C. J. the distinction between trespass and trover is well settled, the former is founded on possession, the latter on property; here the plaintiff had no possession,

his remedy was by action of trover, founded on his property in the goods taken; but in the case (put) of a carrier, there is a mixed possession, actual possession in the carrier, and an implied possession in the owner. Per Buller, J. a carrier is considered in law as the servant of the owner, and the possession of a servant is the possession of the master. Ward v. Macaulay, 4 T. R. 489. But in Gordon v. Harper, 7 T. R. 11, Lord Kenyon observes, that what he had said in Ward v. Macaulay, sup. of trover being the proper remedy was an extrajudicial opinion to which on further consideration he could not subscribe; his Lordship declined giving any opinion on the point, but said, it was clear trover would not lie in such a case.

(a) If I lend my sheep to dung A.'s land, or my oxen to plough his land, and he kills my cattle, I may well have trespass against him. Litt. s. 71. The reasou is, that when the bailec having but a bare use of them, taketh upon him as an owner to kill them, he loseth the benefit of the use of them, or in these cases he may have an action of trespass sur le case for the conversion at his election. Co. Lit. 57. (a)

his own use. On demurrer it was holden to be no departure, but to make good the declaration, for he that abuses a distress is a trespasser ab initio; and it would be of no avail to the plaintiff to state the conversion in his declaration, for it is no way necessary to his action; and if alledged, need not be answered: it would be out of time to state it in the declaration, but it must come in in the replication.-Gargrave v. Smith, H. 2 W. III. Salk. 221. Sir Ralph Bovey's Case, T. 14 Car. II. 1 Vent. 217.

Rent Arrear. But in trespass for breaking and entering his house, and taking an excessive distress, after judgment by default, it was holden on error brought that trespass would not lie; for the entry was lawful, and there is nothing subsequent to make it a trespass, as there is where the distress is abused. (Hutchings v. Chamber, M. 31 Geo. II. Burr. 580.) (a) At common law the party might take a distress of more value than the rent, (b) therefore that did not make him a trespasser ab initio, but the remedy ought to be by special action founded upon the statute of Marleberge.-Lynne v. Moody, M. $4 Geo. II. Stra.

851.

And note, That in distress for rent, if the outward door be open, the distrainant may justify the breaking open an inner door or lock, in order to find any goods which are distrainable.-Browning v. Dann, 9 Geo. 2.

By 2 W. & M. sess. 1. c. 5. Where goods are distrained for rent reserved, and the tenant or owner of the goods so distrained shall not within five days next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion-house, or other most notorious place on the premises, replevy the same with sufficient surety to the sheriff, then after such distress and notice, and expiration of the said five days, the person distraining shall and may, with the sheriff, undersheriff, or with the constable of the hundred, parish, or place where such distress shall be taken, cause the goods to be appraised by two sworn appraisers (whom such sheriff, under-sheriff, or constable are impowered to swear) to appraise the same truly according to the best of their under

(a) Unless the distress be excessive on the face of it, as in Moir v. Munday, (cited in Hutchings v. Chamber,) where 6 ounces of gold, and 100 ounces of silver, were taken for 6s. 8d. but that appeared on the face of it and on the pleadings to be excessive; it was a distress of gold and silver, which are of a certain known value, and even the

measure of the value of other things, but it was there holden, that in all other cases of goods. and things of arbitrary and uncertain value, it must be an action on the statute of Marleberge.

(b) So as to make it more eligible to the party to redeem the goods by payment of the rent.

standings,

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standings, and after such appraisement may sell the same for the best price that can be gotten, towards satisfaction of the rent and the charges, leaving the overplus (if any) in the hands of the sheriff, under-sheriff, or constable, for the owner's use. (a)

Notice to the tenant or to the owner of the goods is sufficient.—Walter v. Rumball, H. 6 W. & M. 4 Mod. 395.

A distress taken in two hundreds (they being contiguous) at the same time and for the same rent, is but one distress, and ought to be put in one pound, and the constable of the place where the distress was driven is the proper officer within the statute.-S. C.

If the person distraining is sworn as one of the appraisers, it is illegal, for he is interested in the business, and the statute says that he, with the sheriff, &c. shall cause the goods to be appraised by two sworn appraisers.—Andrews v. Russel et al. Sittings at Westminster after Easter 1786.

By the same statute, s. 5. if distress and sale are made where no rent is due, the owner of the goods by action of trespass, or on the case, may recover double the value of the goods distrained and sold, with full costs.

Sect. 3. Corn, grain, and hay may be distrained, and shall be kept in the place where they are found till they are replevied or sold.

By 11 Geo. 2. c. 19. s. 8. The landlord may distrain any cattle or stock of the tenants feeding on any common appendant or appurtenant, &c. and all sorts of corn, grass, or other product growing on any part of the estate, and may cut and make the same, and lay it up in barus or other proper place on the premises when ripe; and if none such, then in any other barn or proper place which the landlord, &c. shall hire for the purpose, and as near as may be to the premises, and in convenient time to appraise, sell, or otherwise dispose of the same towards satisfaction of the rent, and of the charges, appraisement, and sale: and the appraisement to be made when cut, gathered, and made, and not before. (b)

(a) In Gorton v. Falkner, 4 T. R. 567, Lord Kenyon said, he could not refrain from observing, as it then struck him, that this act of parliament has not taken away all privileges from distress, but has merely given the power of selling those things which might have been distrained before.

Sect.

(b) Lord Coke (in Co. Litt. 47 a. b.) says, there are five things not distrainable. 1st. Things annexed to the freehold. 2d. Things delivered to persons exercising their trade, as cloth to a tailor. 3d. Hops and corn. 4th. Implements of ploughing. 5th. Implements of trade. The three first were absolutely privileged, the

two