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where the immediate act itself occasions a prejudice, or is an injury to the plaintiff's person, house, land, &c. trespass vi et armit will lie; but where the act itself is not an injury, but a consequence from that act is prejudicial to the plaintiff's person, house, land, See. trespass vie et armis will not lie, but the proper remedy is an action on the case (a). The difference, therefore, between trespass and case is, that in the trespass the plaintiff complains of an immediate wrong; and in case, of a wrong that is the consequence of another act (b).
Fixing a spout, therefore, so as to discharge water upon the land of another, is only consequentially injurious, and the party who sustains the damage must bring case in order to get a compensation (a).
So, if a man who ought io enclose against my land, do not enclose, whereby the cattle of his tenants enter into my land, and do damage to me, I may have this remedy (r).
So, case lies for breaking the fences of a third person, whereby my cattle escape into his land and are distrained (d).
If a house of office be separated from other premises by a wall, and that wall belong to the owners of the house of office, he is of common right bound to repair it, and an action on the case will lie.
In such action by a lessee for years against the owner of the acV joining house, for not repairing a party-wall, by which the plaintiff's house was damaged, it is not necessary to state that he was bound by prescription to repair the wall; it is sufficient to declare that he was possessed of a message for a certain number of years, and that the defendant ought to repair the wall (e).
Note. If the owner of the house be bound to repair it, he and not the occupier is liable to an action on the case for an injury sustained by a stranger from the want of repair (f).
But an action on the case for not repairing fences, whereby another party is damnified, can only be maintained against the occupier, and not against the owner of the fee, who is not in possession (g).
Case may be maintained by a lessee for years, for obstructing the lights of an antient messuage. A declaration, that the defendant was, and yet is possessed of a house and a void piece of land, and erected buildings thereon, and thereby stopped the light coming by the said windows into his house, whereby his house was totally darkened, and he much prejudiced by such stopping, is good (A).
So in an action for stopping the plaintiff's lights, it is sufficient to
declare that he was possessed of such a message for years, and had and ought to have such light, without stating that the messuage and lights were ancient (a).—Not lengthening windows, or making more lights in the old wall than formerly, was thought by L. Hardwicie not to vary the right of persons. Indeed a contrary doctrine might create innumerable difficulties in populous cities (£).
A prescription of ancient lights is to the house, and not to the person (c).
Special matter may be given in evidence on the general issue in an action on the case for stopping lights (d).
This action lies for damage done to the plaintiff's colliery, by what the defendant has done to his own colliery, within his own soil, though several other collieries lie between them: and trespass vi et armis does not lie, for the damage is not immediate, but consequential (e).
Case does not lie for a mere trespass: as, for pulling down a wall, and taking down the tiles from a house, unless it be alleged that the timber was thereby rotted (/).
A possessory right is sufficient to maintain an action of trespass or case, though not a replevin. But trespass and case cannot be joined, for the judgments differ; that in trespass being a capiatur; and that in case, though vi et armis, a misericordia (g).
As this action arises from the special damage, any thing may be given in evidence on the general issue that destroys the right of action (h).
A declaration for stopping up a watercourse, without shewing how, is bad upon demurrer: but unobjectionable after verdict (»).
Case lies against the proprietor of tithes for not taking them away : but trespass vi et armis will not ; because it is only a non-feasance and not a mal-feasance (i). The declaration may state that the plaintiff set out the tithes, and the defendant refused to take them away; or the plaintiff may declare with aper quod the grass did not grow where the tithes lay, and he could not put his cattle into the close to pasture the residue of the grass, lest they should hurt the tithes ; for though the proprietor of tithes do not remove them in convenient time, the owner of the land cannot put in his cattle and eat them, for to permit the owner, if the corn be not removed at the day, to put in his cattle and eat all the corn, would be a much greater loss to the parson than that which the plaintiff hath sustained by the continuance of the corn upon the
land, besides that it is much more reasonable to permit the plaintiff to bring an action against the parson,and so the Court to be the judge of the reasonableness of the time, and that the recompence be proportionable to the loss sustained (a).—In such a case, the owner's remedy is either by distress or action (b).
Case will not lie against a parson for not taking away his tithe, unless they have been properly set out: it is, therefore, not maintainable for not taking away the tithe of hay where it was not set out in swathe (c).
A parson is not entitled to carry his tithes home by every road which the farmer himself uses for the occupation of his farm. Semble that he may only use such road as the farmer does for the occupation of the close in which the tithes grow (d).
For other points respecting this action, we refer our readers to Chap. XVII.
Of Remedies against third Persons; wherein of Forcible Entry and Detainer.
"I7ORCIBLE entry and detainer are offences at the common law \ and the prosecutor, if he please, may proceed in that way: but then the indictment ought to express, not only the common technical words with force and arms, but also such circumstances, as that it may appear upon the face of the indictment to be more than a common trespass (a).
But the safest and most usual way is, to proceed upon the statutes. Concerning which, it may be premised, that "they who keep possession with force, in lands and tenements, whereof they or their ancestors, or they whose estate they have in the same, have continued their possession of the same, by three whole years next before without interruption, shall not be endamaged by force of any of the statutes concerning forcible entry." 8 H. 6. c. 9. s. 7.
Forcible Entry, what.—By the 5 R. 2. c. 8. "None shall make any entry into any lands or tenements (or benefice of the holy church, 15 R. 2. c. 2. or other possessions, H. 6. c. 9. s. 2.) but where entry is
(a) Rex v. Storr. 3 Burr. 1698. Rex v. Blake. Ibid. 1731.
given by the law; and in such case, not with strong hand, nor with multitude of people, but only in peaceable and easy manner, on pain of imprisonment and ransom at the King's will."
Or other possessions.) It seems clear, that no one can come within the danger of these statutes, by a violence offered to another in respect of a way, or such like easement, which is no possession. And there seems to be no good authority, that an indictment will lie on this case for a common or office (a).
Not with strong hand, nor with multitude of people."] It seems certain, that if one, who pretends a title to lands, barely go over them, either with or without a great number of attendants, armed or unarmed, in his way to the church or market, or for such like purpose, without doing any act, which either expressly or impliedly amounts to a claim upon such lands, he cannot be said to make an entry thereinto (b).
But it seemeth, that if a person enter into another man's house or ground, either with apparent violence offered to the person of any other, or furnished with weapons, or company, which may offer fear; though it be but to cut or take away another man's corn, grass, or other goods, or to fell or crop wood, or do any other like trespass, and though he did not put the party out of his possession, yet it seemeth to be a forcible entry. But if the entry were peaceable, and after such entry made, they cut or take away any other man's corn, grass, wood, or other goods, without apparent violence or force; though such acts are accounted a disseisin with force, yet they are not punishable as forcible entries (c ).
But if he enter peaceably, and then shall, by force or violence, cut o,r take any corn, grass, or wood, or shall forcibly or wrongfully carry away any other goods there being; this seemeth to be a forcible entry punishable by these statutes (c).
So also shall those be guilty of a forcible entry, who, having an estate in land, by a defeasible title, continue with force in the possession thereof, after a claim made by one who had a right of entry thereto (d).
But he who barely agrees to a forcible entry made to his use, without his knowledge or privity, shall not be adjudged to make an entry within these statutes, because he no way concurred in, or promoted, the force (*).
Indeed, in general, it seemeth clear, that, to denominate the entry forcible, it ought to be accompanied with some circumstances of actual violence or terror; and therefore that an entry which hath no other force than such as is implied by the law, in every trespass whatsoever, is not within the statutes.
As to the matter of violence; it seems to be agreed, that an entry may be forcible, not only in respect of a violence actually done to the person of a man, as by beating him if he refuse to relinquish his possession, but also in respect of any other kind of violence in the manner of the entry, as by breaking open the doors of a house, whether any person be in it or not, especially if it be a dwelling-house, and perhaps also by an act of outrage after the entry, as by carrying away the party's goods. But it seems, that an entry is not forcible by the bare drawing up a latch, or pulling back the bolt of a door, there being no appearance therein of being done by strong hand or multitude of people: and it hath been holden, that entry into a house through a window, or by opening a door with a key, is not forcible (a).
In respect of the circumstances of terror / it is to be observed, that wherever a man, either by his behaviour or speech, at the time of his entry, gives those who are in possession just cause to fear that he will do them some bodily hurt, if they will not give way to him, his entry is esteemed forcible, whether he cause such terror by carrying with him such an unusual number of attendants, or by arming himself in such a manner, as plainly intimates a design, or by actually threatening to kill, maim, or beat those who should continue in possession, or by giving out such speeches as plainly imply a purpose of using force, as if one say that he will keep his possession in spite of all men, or the like (3).
But it seems that no entry shall be judged forcible from any threatening to spoil another's goods, or to destroy his cattle, or to do him any other such like damage, which is not personal (c).
However, it is clear that it may be committed by a single person, as well as by twenty (d).
But, nevertheless, all those who accompany a man, when he makes a forcible entry, shall be judged to enter with him, whether they actually come upon the land or not (e).
Forcible Detainer, what.—The same circumstances of violence or terror which will make an entry forcible, will make a detainer forcible also: and a detainer may be forcible, whether the entry were forcible or not (/).
How punishable by Action.—By stat. 8 H. 6. s. 6. "If any person be put out or disseised of any lands or tenements in a forcible manner, or put out peaceably, and after holden out with strong hand: the party grieved shall have assize of novel disseisin, or writ of trespass against the disseisor; and if he recover he shall have treble damages, and the defendant moreover shall make fine and ransom to the king."
The Party aggrieved shall have Assize, c.] But this action being at
(«) I H. P. C. e. 64. >. lA. I (J) Ibid. 49.
(i) Ibid. 1.17. I (<) Ibid. s. a».
(«) Ibid. 18. I (/) Ibid. s. 30.