for treading down the grass growing upon the land, upon which he has such right of common: for though a commoner has a right to take such grass by the mouths of his commonable cattle, he is not to be considered as in possession of the land.a

render the

2. What acts constitute trespass to real property.] Trespass can only be supported when the injury was committed with force, actual or implied, and immediate. It will lie not only against the party who did the act, but against all who direct or assist in the commission of it. A master is liable in trespass What acts for any act done by his servant, in the course of executing his of a serorders, with ordinary care. As where a master ordered his vant will servant to lay down a quantity of rubbish near his neighbor's master liawall, but so that it might not touch the same, and the servant ble in tresused ordinary care in executing the orders of his master, but pass. some of the rubbish naturally ran against the wall; it was held, that the master was liable in trespass. Where a servant does work by order of his master, and the latter imposes a restriction in the course of executing his order, which it is difficult *1444 for the servant to comply with, and the servant in execution of the order, breaks through the restriction, the master is liable in trespass; because he has only a right to expect from his servant ordinary, not extraordinary care. But if the injury arise from want of ordinary care in the servant, the master will only be liable in case.d

b

A previous consent will render a party liable as a trespasser. ConsentAs if A. desire B. to commit a trespass towards C., and B. do ing to a it, C. may maintain an action as well against A. as against B.e trespass. So will a subsequent assent, if the trespass be committed for the use or benefit of the party assenting; unless it be an infant or a feme covert.s

A person who sends out his hounds and servants, and invites others to hunt with him, although he does not himself

Bro. Trespass, Pl. 174. Bac. Ab. Tresp. C. 3. Wilson v. Mackreath, 3 Burr. 1825.

b Gregory v. Piper, 9 B. & C. 591. (17 Eng. C. L. 454.)

• Per Littledale, J., id. 594.

a Id. The master is not liable for the wilful trespass of his servant. 2 Roll. Ab. 553. See M Manus v. Crickett, 1 East, 106. Croft v. Alison, 4 B. & A. 590. (6 Eng. C. L. 528.) But it seems that he is liable for a trespass committed by his servant in his presence. See Chandler v. Broughton, 3 Tyr. 320. 1 C. & M. 29, ante, 1404.

• Com. Dig. Trespass, C. 1. Flewster v. Boyle, 1 Camp. 187. Cameron v. Lightfoot, 2 Bl. 1190. But if A. command his servant to do a lawful act, as to distrain the goods of B., and he wrongfully distrains the goods of C., A. is not liable. Sanderson v. Baker, 3 Wils. 312-317. But a sheriff is liable for the misconduct of his officer in that respect. Id.

'Barker v. Braham, 3 Wils. 368. Wilson v. Barker, 4 B. & Ad. 614. (24 Eng. C. L. 124.) The mere acceptance of goods illegally taken by another does not always furnish evidence of assent. 1 Roll. 555. As if a pound-keeper receive goods illegally distrained. Bodkin v. Powell, Cowp. 476.

& Co. Litt. 180, b, 357, b.

accompany them, upon the plaintiff's land, is answerable for the trespass committed by them, to the extent of the damage done Wrongful by them. A. employed B., an attorney, to enforce payment execution of a debt, B. directed his agent to sue out a justicies in the of a pro- county court; before the return of the justicies, the debtor paid the debt and costs to B.; his agent, afterwards, not knowing of such payment, entered up judgment in the county court, and sued out execution, though the debtor did not appear, under which the goods of the debtor were seized; held, that A. and B. were liable to the debtor as trespassers.b

cess.

*1445

The owner of animals mansuetæ naturæ, is liable for tresTrespass passes committed by them in the lands of another. by ani

mals.

nant in

common.

But a

party is not liable for any injury done on the lands of another by animals feræ naturæ, over which he has no control, such as By a te- rabbits which escape from his lands. If one tenant in common totally destroy the subject matter of the tenancy in common; as if one tenant in common destroys the whole flight of a dove-cote, or all the deer in their park, the other tenant may have trespass against him. But if one of two tenants in common of an old wall, pulls it down, in order to rebuild it, and does rebuild it, trespass will not lie. And if one tenant in common commits a partial injury only to the realty, case, and not trespass, is the proper remedy. But if two be tenants in common of a folding, and one of them, by force, prevents the other from erecting hurdles, trespass lies."

A lawful

trespass

Though the entry of a party be lawful, yet by a subsequent act may be abuse of an authority in law to enter, the party may become a rendered a trespasser ab initio. As if an officer under an execution by a sub- continues in possession for an unreasonable time, or longer than the law warrants, without removing the goods to a place for safe custody. If a lessor, who enters to view if waste be done, damages the house, or stays there all night, or if a commoner enters to view his cattle, and cuts down trees; or if a man enters a tavern, and continues there all night, against the will of the taverner, they are all trespassers, ab initio,k

sequent abuse.

Where the subsequent act is a trespass, the law assumes that the party did not enter for the purpose alleged in the plea, but

Baker v. Berkeley, 3 C. & P. 32. (14 Eng. C. L. 197.)

Bates v. Pilling, 6 B. & C. 38. (13 Eng. C. L. 104.) Barker v. Braham, supra. Com. Dig. Trespass, .

d Boulston's case, 5 Co. 104. See Cooper v. Marshall, 1 Burr. 259.

Per Littledale, J., in Cubitt v. Porter, 8 B. & C. 268. (15 Eng. C. L. 211.) Com. Dig. Estate, K. 8.

Id.

b Co. Litt. 200, b.

& Id.

iSix Carpenters' case, 8 Co. 146. But a mere nonfeasance will not make a party a trespasser ab initio: the subsequent act must be itself a trespass. Id. 5 B. & C. 490. (12 Eng. C. L. 281.) Taylor v. Cole, 3 T. R. 292.

Reed v. Harrison, 2 Bl. 1218. Aitkenhead v. Blades, 5 Taunt. 198. (1 Eng. C. L. 75.)

1

Com. Dig. (C. 2.)

for the purpose of committing the trespass. A sheriff who enters to execute a fi. fa., is not liable in trespass for demanding and receiving a larger sum than he was entitled to levy; *for extortion is not a trespass, therefore it could not be sup- *1446 posed that he entered for the purpose of committing a trespass.b In case of distress damage feasant, a subsequent conversion of the chattel distrained will render the party a trespasser ab initio. If a person distraining for rent, remains in possession more than five days, and disturbs the party, he is liable in trespass only for the period during which he remained in possession above the five days. So, if he continues in possession after the rent is paid, and turns the family out of doors, he is liable only for those acts. A tenant who tenders his rent after distress, but before impounding may maintain trespass for a subsequent removal of the distress.

SECTION XI.

THE DECLARATION.

tals.

IN trespass quare clausum fregit, the venue is local, and Setting must be laid in the county where the land lies. Formerly it out abutwas not necessary to set out the abuttals or names of the closes; but now, by the rules H. T. 4, W. IV, it is provided, that "in actions of trespass quare clausum fregit, the close or place in which, &c., must be designated in the declaration by name, or abuttals, or other description; in failure thereof, the defendant may demur specially." Where a declaration described the close as abutting "on the south, towards a certain highway in the parish of H., in the county of Sussex; towards the north, on certain land; on the east, on premises in the occupation of the plaintiff; and on the west, towards certain premises in the occupation of the defendant, and situate in the parish of H;" it was held, that the word "towards," was an incorrect description, the proper description being "on" or "upon," so "as to exclude any intervening land; but as the defendant had *1447 pleaded "that the close was his property, as a customary tenant of the manor," &c., he adopted the description of the close set out in the declaration, and therefore was precluded from ob

Per Bayley, J., in Shortland v. Govett, 5 B. & C. 489. (12 Eng. C. L. 281.) b Id.

Dye v. Leatherdale, 3 Wils. 20. Gates v. Bayley, 2 Wils. 313.

d Winterbourne v. Morgan, 11 East, 395. A party will not be liable in trespass for a mere irregularity in the distress, as for not appraising the goods distrained. Missing v. Kemble, 2 Camp. 115.

• Etherton v. Popplewell, 1 East, 139.

Vertue v. Beasley, 1 M. & Rob. 21.

jecting to its sufficiency. The defendant could only take advantage of the sufficiency of the description by demurrer, or by pleading the general issue. Though in this case the close was described as abutting on the four cardinal points, and it appeared in evidence that it was a triangular piece of land, it was held sufficient; for abuttals have never been construed very strictly. Thus, if abuttals be described as abutting on a house to the east, it may be north-east or south-east.e

1. The general issue.] THE general issue in this action is "not guilty." "In actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant committed the trespass alleged in the place mentioned; but not as a denial of the plaintiff's possession or right of possession of that place; which if intended to be denied, must be traversed specially." Under this plea, therefore, the plaintiff will be required to prove only that the defendant committed the trespass in the place described in the declaration.

2.-Liberum tenementum.] If the defence be that the locus in quo was the freehold of the defendant or of some other party *1448 *under whom the defendant justifies, or that the defendant had a possessory title, it must now be specially pleaded, though before the new rule it might have been made available under the general issue; such defence is technically termed liberum Rules for tenementum. The following rules for framing this special plea pleading are laid down in a work of high authority on this subject. liberum te- 1st. In the statement of a derivative title, the derivation or commencement of an estate in fee simple need not be shown. It

nementum.

Lempriere v. Humphrey, 1 Har. & W. 170. 4 N. & M. 638, (30 Eng. C. L. 64,) post, 1449.

c Per Heath, J., in Cocker v. Crompton, 1 Taunt. 495. If in an action for breaking the plaintiff's close, he were to describe it as abutting the several closes, A., B., C., and D., these would be all allegations descriptive of that which was material, i. e. of the subject matter to which the injury was done, and a variance from any one would be fatal, 2 Stark. Ev. 374.

suffices in general to deduce the title from the last absolute owner in fee simple from or through whom the defendant claims, although the fee was only conditional or determinable on a certain event. 2dly. In the case of particular estates, being interests or titles less than a seisin in fee simple, and in case of copyholds, their commencement must be shown; that is, the derivation of the title from the last seisin in fee must be alleged. 3dly. A party claiming by inheritance or descent must specially show how and in what character he is heir. 4thly. If the party claim by conveyance, each distinct conveyance and the nature thereof must be specially set forth. 5thly. It is a rule that the conveyance should be pleaded according to its legal import and effect, rather than its form of words. 6thly. Where the nature of the conveyance is such that it would at common law be valid without deed or writing, there, no deed or writing need be alleged in the pleading, though such document exist, and a statute render it necessary, as in case of a conveyance with livery of seisin, &c.; but where the nature of the conveyance requires at common law a deed or other writing, such instrument must be alleged, as in case of a grant of any thing which lies in grant, and cannot be granted without deed;a and if a transfer of property be inoperative except by statute, and the act require writing, as in case of a devise of lands, the pleading must show that the will was in writing.b

of liberum

A plea of liberum tenementum in trespass, admits the plain- What is tiff's possession, in fact, of a close corresponding with the de- admitted scription of the close, either by name or by abuttals, in the by a plea declaration. Therefore, where in trespass quare clausum tenement fregit there was a plea of liberum tenementum only; it was um. held, that the plaintiff was entitled to recover upon proving a *1449 trespass in a close in his possession answering the description given in the declaration, although the defendant had a close in the same parish, which also answered the description given in the declaration.

Where the trespasses were laid in different closes specifically described, to which the defendant pleaded that the said closes, &c., were the soil and freehold of one T., and justified as his servant; held, that the plea admitted trespasses in some part of each, and that the replication averring the soil to have been in another, was an issue as divisible as one raised on the ordinary plea of soil and freehold; and that the plaintiff having on the trial proved a case as to two of the closes, but offered no evidence as to the third, he was entitled to a verdict as to those two, and the defendant as to the other. Where the plea was

с

1 Saund. 276, a.

b Id.

Lempriere v. Humphrey, 3 Ad. & Ell. 181. (30 Eng. C. L. 64.) 4 N. & M. 638. 1 H. & W. 170. Cocker v. Crompton, 1 B. & C. 489. (8 Eng. C. L. 140.) Cooke v. Jackson, 9 D. & R. 495. (22 Eng. C. L. 396.)

d Pythian v. White, 1 Mees. & Wels. 216. Ashmore v. Hardy, 7 C. & P. 501. (32 Eng. C. L.)