he cannot give in evidence non-tenure of the plaintiff who distrained. for rent, but he ought to plead it (a). But this action is rarely brought at this day, but a special action on the case in which non-tenure may be given in evidence on the general issue (a). Vide ante touching stat. 2 W. & M. c. 5. s. 4. &c. In an action on the case for the rescue of a distress intended for sale, the plaintiff need not state that he gave notice of the distress; nor, if the rent became due upon a lease for years, need he aver occupation: for upon a lease for years the rent is payable though the lessee never occupy; contrà of a lease at will. Nor, though the rent was payable only during occupation, need he shew any thing more than the lessee's entry (b). The venue may come from the vill where the rescue was, without joining either the vill where the demise was made, or the distress taken (b). SECTION II. Of Trespass for immediate Injuries to the Tenant's Possession. Where the immediate act itself occasions a prejudice, or is an injury to the house, land, &c. of another, trespass vi et armis will lie (c). This is a possessory action; therefore, whoever is in possession may maintain an action of trespass against a wrong-doer to his possession (d). Therefore, where a party being entitled under a lease from the Crown to the sole right of digging lead in a certain district, to the soil of which she had no right, let to the plaintiff all her right so to dig during her term: upon his bringing trespass on the case against the defendant for taking the lead, it was held that, being in possession, he should have brought trespass vi et armis; wherefore he was nonsuited (e). So, trespass vi et armis lies for one who has the profits of the soil, though not the soil itself; as herbagium, pastura, &c. (ƒ). It lies against a wrong-doer, even though the tenant's possession be void. Therefore, one in possession of glebe land under a lease void by (a) Bull. N. P. 62. (6) Bellasis v. Burbriche. 1 Ld. Raym. 170. (c) Bull. N. P. 79. ker v. Birkbeck. 3 Burṛ. 1557-1563. (e) Ibid. Shapcott v. Mugford. 1 Ld. Raym. 187-188. (f) Rex v. The Inhabitants of Under(d) Dent v. Oliver. Cro. Jac. 122. Har Barrow. 3 Burr, 1825-1827, stat. 13 Eliz. c. 20. by reason of the rector's non-residence, may yet maintain trespass upon his possession against a wrong-doer (a). As trespass is a possessory action, and possession is sufficient to maintain it against a stranger, no special title need be made (b). In trespass, the plaintiff need not falsify the defendant's title; for the defendant's title being out of the case, it then stands under the plaintiff's possession, which is enough against a wrong-doer; and the plaintiff need not reply a title (c). Trespass was brought for breaking and entering the plaintiff's house, and beating, and abusing, and ill-treating him: plea not guilty. The defence was, that the plaintiff being a pauper had many years before been placed by the parish officers of that time in the house, where the defendants, seven in number, committed the trespass, and that the defendants as parish officers came to the house to remove the plaintiff and his family to another house; that the plaintiff refused to quit, and fastened his house against them; and that they in consequence broke open the house, and by violence dispossessed the plaintiff and his family. Plumer for the plaintiff objected, that under the plea of "not guilty," the defendants were not at liberty to enter into evidence of this kind by way of justification. But Le Blanc, J. was clearly of opinion that the defendants might, under not guilty, give evidence of liberum tenementum, and that if the plaintiff had been put into the house by the parish, he could by no length of possession whatever acquire any title, but might at any time be turned out of possession by the parish officers; and if he resisted, force might lawfully be used to dispossess him; that the evidence offered, therefore, amounted to liberum tenementum, and that it would be a question for the jury to decide, whether any unnecessary violence had been used in accomplishing a legal object, and to what damages, if any, the plaintiff was entitled. It being proved that great and unnecessary violence had been used, the jury, on that ground only, found a verdict for the plaintiff for 40s. (d). At the assizes at Hereford on this circuit, the same question came before Lawrence, J. in Worthington v. Baister, and received a similar determination. This was an action of trespass for breaking and entering the plaintiff's house, and disquieting him in the possession thereof, &c. On the evidence it appeared, that the house, more than twenty years ago, had been built on a piece of waste ground at the expense of the parish for the plaintiff; that the plaintiff had ever since occupied it with his family, paying no rent to the parish, or making any other acknowledgment; that lately the parish officers had made claim to the premises, and put another family into the house to (a) Graham v. Peat. 1 East's R. 244. (d) Fox v. Oakley and others. Oxf. Sum. Ass. 1802, at Shrews. T.'s MSS. occupy it jointly with the plaintiff, in doing which they had committed what the plaintiff declared on as a trespass. Lawrence, J. very early in the cause, delivered it as his clear opinion, that if the house were originally built by the parish, and the plaintiff put into it by them, no length of time would turn his possession into a title against the parish; that he could only be considered as a mere tenant at will, and that of course his right of possession ceased with the determination of that will-Upon this opinion of the Judge's being given, the point contended between the counsel on both sides was, at whose expense the house was originally built; and on its being proved that the house was erected at the costs of the parish, the plaintiff was immediately nonsuited. A lease was made of a farm, and also of certain allotments of common, enclosed under an Act that contained the usual clause empowering the commissioners to distrain or enter, and take the rents and profits in failure of the owner of the land to whom the allotments were parcelled out, paying his proportion of the expenses of the Act; and the question was, who should defray such expense, and the expense of fencing such allotments? It was ruled that such expenses were to be borne by the landlord, Lord Ellenborough, C. J. observing, that "The Act gives the commissioners power to oust the tenant from his occupation; and when a power is to oust the tenant of the rents and profits, there the tenant may pay in his own discharge, and for the redemption of the land (a). Trespass lies against a person for disturbing the plaintiff in the profits of a fair by erecting a toll-booth, without saying quare clausum fregit (a). The stat. 16 & 17 Car. 2. says, that if in an action of trespass the plaintiff happen to omit the words vi et armis, or contra pacem, the want of those words shall not vitiate the declaration. If there be lessee for life or years of lands, the lessee has no property in the trees growing on the land; and even if the clause in the lease be "without impeachment of waste," it gives no property, but is merely an exemption from an action. Yet if a stranger cut down any trees, the lessee may maintain trespass, but he shall not recover damages for the value of the trees, because the property of them is in him in reversion; but the damages shall be for cropping and breaking his close, and perhaps for the loss of shade, &c. (b). This action also lies for not repairing fences, whereby cattle come into ground of the tenant and do damage (c). Every man's ground is, in the eye of the law, fenced; and where a hedge and ditch join together, in whose ground or side the hedge is, to the owner of that land belongs the keeping of the same hedge (a) Smith v. Pearce. Sitt. at Guildhall after M. T. 43 G. 3. (b) Esp. N. P. 384. 4 Co. 62, a. or fence, and the ditch adjoining to it on the other side, in repair and scoured (a). Where entry, authority, or licence, is given to any one by the law and he abuses 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 (b). Where the plaintiff is in the actual occupation of the land, though he had no legal title whatever, the defendant cannot give evidence of property in a stranger under the general issue; but where land is not in the actual possession of any person, as commons and the like, the defendant on such issue, may prove the legal possession to be in a third person (c). It will be a trespass, if a man wrongfully enter the house, lands, or tenements of another without his consent; and therefore trespass lies de domo suo fractâ. So, for entering his messuage or tenement. Or breaking his close. Or treading down, spoiling, eating, &c. his hay or corn. Or cutting down trees. Or hunting in his close. Or breaking hedges and ditches. Or throwing down or disturbing the setting of his fold. Or breaking up his pond. So if a man enter and do damage to another, though he do not keep the possession; as trespass lies quare domum vel clausum fregit (d). The lessee for years, after the lease is expired, may have action for a trespass on the land before his lease was ended (e). Where one declared in case for obstructing a watercourse upon his "possession" of a mill" with the appurtenances" and that "by reason of such his possession he had a right to the use of water running in a certain tunnel to the mill," such allegation was not supported by proof that the tunnel was made on the defendant's land, which he had agreed to let the defendant have for this purpose for a certain consideration, but of which no conveyance was made by him to the plaintiff, and he had since refused assent: because the plaintiff had not the water by reason of his "possession" to the mill, &c. but by parol licence or contract, which could not pass the title to the land, and as a licence was revokable, and revoked (ƒ). Where there is a tenant in possession, and an execution (as by fi. fa.) is against the landlord, whose term is to be sold, the tenant cannot, it should seem, be turned out of possession (g). But it is very different where the debtor himself is in possession; in such case, Buller, J. inclined to think that the sheriff might turn him out of possession (g). (a) Skinner v. Newton. 9 Mod. 140. pass. (A. 2.) Par. Oss. 188. (6) Bull. N. P. 81. (c) Philpot v. Holmes. Peake's R. 67. (d) F. N. B. 87. B. &c. Com. Dig, tit. Tres (e) Bro. Tresp. 456. (ƒ) Fentiman v. Smith. 4 East's R. 107. (g) Taylor v. Cole. 3 T. R. 292-298. The action of trespass is local (a). The plaintiff may prove trespass at any time before the action brought, though it be before or after the day laid in the declaration. But in trespass with a continuando, the plaintiff ought to confine himself to the time in the declaration : yet he may waive the continuando, and prove the trespass on any day before the action brought, or he may give in evidence only part of the time in the continuando.-Note. That of acts which terminate in themselves, and once done cannot be done again, there can be no continuando; as hunting or killing a hare or five hares, but that ought to be alleged, that diversis diebus ac vicibus between such a day and such a day, he killed five hares, and cut and carried away twenty trees. Where trespass is laid in continuance that cannot be continued, exception ought to be taken at the trial, for he ought to recover but for one trespass; but hunting may be continued, as well as spoiling and consuming grass (b). Whether the trespass may be laid with a continuando or not, depends much upon the consideration of good sense; as where trespass is brought for breaking a house or hedge, it may well be laid with a continuando, for pulling away every brick or stick is a breach: but if the declaration be that the defendant threw down twenty perches of hedge continuando transgressionem pradictam from such a day to such a day, this must be intended of a prosternation done at the first day, and therefore will be ill upon demurrer or judgment by default; but it will be aided by verdict, because the Court will intend that the jury gave no damage for the continuando (b). So, trespass cannot be laid of loose chattels with a continuando, and if it be so laid no evidence can be given but of the taking at one day; and therefore in trespass for mesne process it ought to be laid diversis diebus ac vicibus. Where several trespasses are laid in one declaration, continuando transgressiones prædictas, and some of them may be laid with a continuando and some not, after verdict the continuando shall be extended to the trespasser, which may be laid with a continuando. So, where the continuando is impossible, the Court will intend that no damages were given for it (b). Though persons having only a right are not to assert that right by force, and if any violence be used it becomes the subject of a criminal prosecution, yet a person having a right of possession may peaceably assert it, if he do not transgress the laws of his country; for a person who has a right of entry may enter peaceably and being in possession may retain it and plead that it is his soil and freehold (c). The common plea of liberum tenementum proves this (d). (a) Anon. 11 Mod. 181. Doulson v. Matthews. 4 T. R. 503. (b) B. N. P. 86. (c) Taylor v. Cole. 3 T. R. 292-295. |