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But if he is entitled to a portion of the herbage for a particular part of the year, he cannot maintain this action, but may maintain an action of trespass for spoiling his grass.
So one having an inheritance in the trees, and an exclusive right in the soil of the close, as far as was necessary for their support and nourishment, may maintain trespass for breaking the close as well as for cutting (3)
Possession is a sufficient title to the plaintiff in trespass vi et armis, and where a person is in possession, that is the proper action for any injury done to the land.(4)
For where plaintiff was assignee of a mine, and brought trespass on the case against defendant for taking the lead, it was held that plaintiff being in possession, should have brought trespass vi et armis, and he was non-suited.
A special property is a sufficient title for the plaintiff in this action.
As where a sheriff had taken goods under a fieri facias, and they were forcibly taken away by the defendant; it was adjudged that the sheriff might maintain trespass, though he had only a special property in the goods.
Husband and wife may join in an action for a trespass done on the wife's land, as for breaking the close, &c. but if it is for taking and carrying away hay, &c. the declaration should state that it grew on her land, or it will be bad.
For the rule is, that for taking things merely personal, husband and wife cannot join in trespass; but for the
(3) A grant to one, his heirs and assigns, of all the trees and timber standing and growing in a close forever, with free liberty to cut and carry them away at pleasure, conveys an estate of inheritance in the trees and timber. '
Clap v. Draper, 4 Mass. Rep. 266. (4) In trespass qu. clau. freg. if the defendant sets up in defence adverse possession to prevent the plaintiff from recovering damages, he must prove a continued, open, visible, actual possession, or his defence will not avail.
Prop. Ken. P. v. Call. 1 Mas. Rep. 483.
Litt. s. 315.
taking of things in action, or injuries done to the land of the wife, they should join; for the latte r things survive to the wife, but not the former.
Tenants in common, for trespasses committed by a stranger, should join in an action of trespass for offences which concern their tenements in common, as for breaking their houses or closes, feeding, wasting, or destroying their grass, cutting their woods or such like. In which case they should have their action jointly, and recover their damages jointly, because the action is in the personalty, and not in the realty. Before an entry and actual possession, one cannot main
2 Roll. Abr. 553. tain an action of trespass, though he hath the freehold in law; therefore an heir before entry cannot have trespass against an abator ; but a disseisee may have it against a disseisor for the disseisin itself, because he was in possession, but not for an injury after the disseisin.
VIII. Of the declaration ; and herein of the continuando.
The action of trespass quare clausum fregit, is a local action, and consequently the action must be laid in the county where the land lies; for otherwise the plaintiff on the general issue may be nonsuited at the trial; but trespass for taking goods, is transitory, and the venue may be laid in any county, subject, however, to its being changed upon an application to the court, supported by the usual affidavit, if not laid in the county where the action arose.
The declaration ought to allege the commission of the fact directly and positively, and not by way of recital, e. g. for that on such a day the defendant broke and entered the plaintiff's close, and not for that whereas, &c. an exception, however, to the declaration for this fault must be made by special demurrer. (5)
(5) In Holbrook v. Pratt, 1 Mass. Rep. 96, which was an action of trespass, the defendant made a general demurrer to the declas
It is not necessary to state the precise day on which the trespass was committed ; it will be sufficient to insert any day before the commencement of the action.
Formerly, in order to avoid the necessity of bringing se. veral actions, it was usual for the plaintiff, in cases where the nature of the trespass permitted it, to declare with a continuando, as it was termed, that is, the defendant on such a day committed certain trespasses (specifying them) continuing the said trespasses from such a day to such a day, at divers days and times, and if, as was generally the case, the declaration contained a charge for some acts which did not lie in continuance, as well as for some which did, then the continuing was expressly confined to those trespasses which did lie in continuance.
This was the regular mode of declaring, but it frequently happened, through inadvertence, that the continuando was not so restrained, but was applied to all the trespasses by the general words transgressiones prædictas continuando, in which case objections used to be made, but the courts, in order to prevent judgments being arrested on this ground, laid down a rule, that where several counts were laid in one declaration, some of which might be laid with a continuando, and some not, and the continuando, instead of being confined to such as lay in continuance, went to all, the court, after verdict, would restrain the continuando by intendment to those tres. passes which might be laid with a continuando.
So where the declaration charged the defendant with having taken, on a certain day, ten loads of wheat, ten loads of barley, and ten loads of oats, with a continuando
ration ; and the exception taken was, that there was no positive averment of a trespass, but that it was laid, by way of recital only, under a quod cum. And the exception was held to be fatal. But afterwards in Coffin v. Coffin, 2 Mass. Rep. 358, where the same objection was made in arrest of judgment, the court held the objection to be bad, in that form, but that it would be good on special demurrer.
of the said trespass, from the first mentioned day to a subsequent day ; on writ of error, it was assigned for error that the continuando was improper ; but the court being of opinion that several things being alleged which might be done at several times, although the trespass were laid on the first day, yet the continuando should make distribution thereof, that part was done at one day and part at another, within the time declared of. And in one case, where the plaintiff, in declaring
Ibid. 1111. against defendant for several trespasses, had confined the continuando to two trespasses, one of which ought not to have been laid with a continuando ; it was holden, that although the plaintiff by this mode of declaring, had precluded the court from aiding the declaration by the usual intendment, yet they would intend that the jury. had not given any damages for the continuando.
The form of declaring with a continuando has fallen into disuse, the language of the modern declarations being "that defendant on such a day, in such a year, and on divers other days and times between that day and the day of the commencement of the sạit, committed several trespasses." It will be perceived, that the principal .
object of the ancient and modern form is the same, viz. "' to comprehend several trespasses under one declaration.
In substance, also, both forms are the same, but the modern form is more concise, and it is attended with : this advantage, that it does not afford any scope for those
nice and subtle objections which used to be raised on the difference between acts which lay in continuance and acts which did not. Still, however, care must be taken not to allege that defendant committed a single act, or an act which terminated in itself, on divers days and times, for that would be absurd, and afford just cause for special demurrer.
Although in trespass quare clausum fregit, the plaintiff may declare generally without naming the close, yet in trespass for taking goods, it has been uniformly holden,
that the goods must be specified, and an omission in this respect will not be aided even by verdict.
The declaration must also state, that the land or goods were the plaintiff's land or goods ; hence if the words “of the plaintiff,” or “ his" be omitted, the declaration will be bad ;: but this omission may be aided by pleading over.
IX. Of the pleadings.
1. THE GENERAL ISSUE....
In trespass quare clausum fregët, the defendant may, upon ‘not guilty, give evidence of title, e. g. that the soil · and freehold was his, or thạt the right of freehold was in .J. S. and that defendant by his command entered, &c:
However the above rule does not apply to actions beSiat. 1783, c. 42, s. 2.
fore justices of the peace; for. by statute, when any ac.. tion of trespass shall be brought before any justice of the peace, and the defendant.shạil. plead the general issues. he shall not be allowed to offer any evidence that may : bring tħe title of real estate in question. And when the : defendant în any such action sliall plead the fufe of him: : self or any other person in justification, the justice, upon having such .plea: filed, shall order; the defendant' to re
cogniże to the adverse party, in a reasonable sum, with: i sufficient surety or sureties, to enter the said aetion at the next court of common.pleas, to be holden within the same county, and to prosecute the same in the same manner as upon an appeal from a justice's judgment;' and if such pleader shall refuse.so to recognize, the justice shall render judgment against him in the same manner as if he' had refused to make answer to the same suit. And either party in such cause shall be allowed to appeal from the judgment of the court of common pleas, in the same manner as if the suit had been originally commenced there.