the trespass is committed without any colour or pretence of right; but not against a person in the situation of life of the plaintiff, a man in possession of a waggon and horses, and whose residence was known, and who was in a condition to make a compensation in damages for any injury he might commit in the (perhaps erroneous) assertion of a right. The plaintiff in this case clearly was not a wilful and malicious trespasser within the spirit and meaning of the act. He should not have been dealt with as such. A trespass can only be wilful and malicious where it is committed by a party who knows he has no claim or pretence of right to enter the land; but, if a man goes upon another's land under an idea that he has a right to do so, he clearly does not go wilfully within the meaning of the act. If this had been an action of trespass against this plaintiff for entering the land, would any judge have certified to give the party his full costs, when it appeared that the trespass was committed under an idea of right? A thing is wilful only where the party knows at the time that he is doing a wrongful act. If from the circumstances it appear that he had reasonable ground for supposing that he had a right, his conduct can neither be called wilful nor malicious. such a case were held to be within the operation of the act, a party cutting a turf in the assertion of a claim of common of turbary, might be dragged before a justice at the arbitrary will of any one who might chuse to molest him. To constitute the trespass wilful, we must be satisfied that it was committed by the party without any right or colour of right. Looking only at the issue taken upon the replication, I am of opinion that the evidence in question was properly received. The plaintiff thought he had a right of way; and it appears that, till within the last four or five years, the locus in quo was a public highway, and there was no evidence to shew that it had

If

1827.

LOOKER

v.

HALCOMB.

1827.

LOOKER

v.

HALCOMB.

ever been legally put an end to. If such a right ever existed it exists until taken away by an inclosure, or by an order of justices. There was nothing to shew that it did not continue to exist as a public way; the plaintiff reasonably thought it was still a public way, and could not, therefore, be called, in the language of the statute, a wilful and malicious trespasser. I, therefore, think the verdict right, and that the rule for a new trial should be discharged.

PARK, J.-The single question in this case is, whether the evidence tendered on the part of the plaintiff was properly received. If it had been offered for the purpose of establishing the right of way, it clearly would not, on these pleadings, have been admissible. It was not, however, offered with that view, but merely to satisfy the minds of the Court and jury whether the act of the plaintiff was wilful and malicious, or bonâ fide under a notion that he had a right of way. Suppose the case were reversed; if Halcomb had sued the present plaintiff for trespassing upon his land, and the trespass appeared to have been committed in the assertion of a supposed right of way, no judge would have certified to give the plaintiff costs. Under the circumstances, I think there was no ground for treating this plaintiff as a wilful and malicious trespasser, and that the defendant's proceeding was altogether unwarranted.

BURROUGH, J. declined giving any opinion, he having presided at the trial.

GASELEE, J.-I agree with the rest of the Court that the act of the plaintiff was not a wilful and malicious. trespass within the meaning of the statute, and that, upon the pleadings, the evidence in question was properly

received. The plaintiff in his replication admits the trespass, but traverses that it was wilfully committed by him, or for any other purpose than in the exercise of his claim of right of way. The defendants by their rejoinder do not tender an issue upon the whole replication, but exclude part. The rejoinder must, however, be taken with reference to the entire replication. Upon the whole record, I am of opinion that the defendants had no right to treat the plaintiff as a wilful and malicious trespasser within the meaning of the statute, and that the evidence was admissible to shew the character of the plaintiff's proceeding.

Rule discharged.

1827.

LOOKER

v.

HALCOMB.

INDEX

TO THE

PRINCIPAL MATTERS.