1232

Ibid. s. 23.

Ibid. s. 24.

Warrant of execu tion.

TREASON AND MISPRISION OF TREASON.

heir or heirs of any such offender or offenders, or to make the wife of any such offender to lose or forfeit her dower of or in any lands, tenements or hereditaments, or her title, action or interest in or to the same.

VII. Of the punishment.

By statute it is enacted, that every person who shall be attainted of treason, whether male or female, shall be punished by being hanged by the neck until they are dead, and not otherwise.

Furthermore, by the same statute, no person, upon whom sentence or judgment of death shall be passed or given, shall be executed and put to death, in pursuance of such sentence, before the whole record of such proceedings or case be certified by the clerk of the same court, under the seal thereof, to the supreme executive authority of this state, nor until a warrant shall be issued by the said supreme executive authority, under the great seal of this state, with a copy of the record thereunto annexed, directed to the sheriff of the county, wherein the trial of the person attainted was had, commanding the same sheriff to cause execution to be done upon the person so attainted, in all things, according to the judgment against him. And the sheriff to whom such warrant shall be directed, is authorized and required to execute the same in due form of law.

TITLE CXLV.

TRESPASS.

TRESPASS in the most extensive sense, signifies any injury arising to another, in his person or property, from the misfeazance or act of another; and, therefore, all such injuries, though they assume different names, are in fact actions of trespass; as an assault and battery is a trespass to the person, &c. But the action of trespass, properly so called, and which alone will be here considered, includes only injuries to the lands or personal property of another; and, in contradistinction to trespass on the case, is called trespass vi et armis.

1. The general nature of trespass.

2. Of trespass damage feasant.

3. Of trespass in general and common fields.

4. Of trespass to pine-trees.

5. Of malicious trespasses; and herein of such trespasses committed in the night time.

6. Of trespasses, by joint tenants, tenants in common, and coparceners.

7. By whom this action of trespass may be maintained.

8. Of the declaration; and herein of the continuando.

9. Of the pleadings.

10. Of the verdict and damages.

I. The general nature of trespass.

2 Esp. Dig. 56.

Every entry upon the land of another, is strictly an 3 Bl. Com, 309. injury, if done without the owner's consent, and at least

does the mischief complained of in the writ, that of tread.

Ibid.

2 Esp. Dig. 57.

case.

8 Co. 146.

ing and beating down plaintiff's grass; for such injuries therefore this action lies. (1)

But, however, in certain cases, the law has given a right to enter upon the lands of another. As if a man comes to execute legal process, to demand money, a reversioner to see that no waste has been done, a traveller to get refreshment at an inn; all these are cases in which the law allows an entry, and so the entry is not a trespass.

But where the law allows such entry, or any act to be Cites six carpenters' done, if the person misdemeans himself, or makes an unlawful use of the authority so given, he shall be held to be a trespasser ab initio. For from the subsequent act the law judges, quo animo, the first entry was made. To constitute a trespass, the act causing the injury must be voluntary, and with some degree of fault; for if done involuntarily and without fault, no action lies.

2 Esp. Dig. cites 4 Bur. 2092.

But though the injury has proceeded from mistake, this action lies; for there is some fault from the neglect and want of proper care.

As where the trespass laid, was for cutting plaintiff's grass, and carrying it away; defendant pleaded that his land adjoined that of the plaintiff, and that by mistake in cutting his own grass, he had cut part of the plaintiff's, which was the trespass, &c. and tendered amends. Plaintiff demurred, and had judgment; for it appeared, that the fact was voluntary, and through some degree of fault, and his intention and knowledge are not traversable.

(1) The land of every owner or occupier is inclosed and set apart from that of his neighbour, either by a visible and tangible fence, as one field is separated from another by a hedge, stone wall, &c. or by an ideal invisible boundary existing only in the contemplation of law, as when the land of one man adjoins to that of another in the same open and common field. Hence every unwarrantable entry upon the land of another is termed a trespass by breaking his close. Selw. 1101, 1102.

II. Of trespass damage feasant.

Any person injured in his tillage, mowing or other lands under improvement, that are inclosed with a legal and sufficient fence, whether such improved lands be in a common or general field, or in a close by itself, by swine, sheep, horses or neat cattle, may have and maintain an action of trespass, quare clausum fregit, against the owner of the cattle for his damages; or he may impound the creatures doing the damage, or some of them at his election, with or without the aid of a field-driver; and in case he impound the creatures, he may restrain them in one of the town pounds, or.in some other place under his immediate care and inspection, as may be most convenient for relieving them with suitable meat and water; which relief it shall be the duty of the person impounding to furnish, or cause to be sufficiently furnished, during their confinement.

When an action of trespass shall be brought against. the owner of any of the creatures aforesaid, for damages by them done upon his inclosed lands under improvement, or when such creatures taken damage feasant and impounded, shall be replevied, it shall be in the power of the justice or court, before whom the case shall be determined, to render judgment in favour of the person demanding damages for the injury sustained, upon satisfactory evidence being produced, that such creatures were either clandestinely turned in, or broke.into the close in a part where the fence was good and sufficient according to law, other parts of the fence round the same close being deficient notwithstanding.(2)

(2) In Melody v. Reab, 4 Mass. Rep. 474. Per Parsons, C. J. "The owner of a close is not obliged to fence, but against the of cattle lawfully in the adjoining ground."

escape

So in Dovaston v. Payne, 2 H. Bl. 531. Per Heath, J. "If cattle of one man escape into the land of another, it is no excuse that the fences were out of repair, if they were trespassers in the place from

Stat. 1788, c. 65, 9. 3.

'Ibid. s. 5.

Stat. 1785, c. 53, s. 5.

Ibid. 8. 6.

Ibid. s. 11.

III. Of trespass in general and common fields.

If any proprietor in any common or general field shall put, or cause to be put therein, any horse, cattle, sheep, or other creature, over and above the number allowed him, or before the day agreed upon; or keep them longer there than the time set and limited by a major vote of the proprietors, he shall be deemed a trespasser; and his creatures so put in shall be proceeded with by any of the proprietors as creatures taken damage feasant, to all intents and purposes, as much as if he owned no land within such general field.

When and so often as any trespass or trespasses, shall be done in any common or general field by reason of the insufficiency of the fence belonging to any person owning the adjoining land, the party or parties injured, shall forthwith procure two sufficient persons of good repute to view and adjudge of the damage done, giving notice of such trespass to the owner or claimer of the horse, cattle, sheep, or other creature that did the same, (if he be known and resident in the same town, or near thereto,) that he may be present and nominate one of the apprizers of such damage, if he see cause; and the damage shall be answered according to such apprizement. And where damage happens through the insufficiency of the fence, the owner or occupant of the land to which the defective fence belongs, shall be liable to answer and make good all such damage.

So whenever horses, cattle, or other creatures, shall be clandestinely turned into any general field, or, being unruly, break into the same, and shall be taken and impounded by a propietor thereof, and a writ of replevin

whence they came. If it be a close, the owner of the cattle must shew an interest or a right to put them there. If it be a way, he must shew that he was lawfully using the way; for the property is in the owner of the soil, subject to no easement for the benefit of the public."