entry, wrongfully continues upon the land. It is not necessary that the party who makes the entry should declare that he enters to take possession: it is sufficient, if he does any act, to show his intention. By the common law, he that agrees to a trespass after it is done, is no trespasser, unless the trespass is done to his use or for his benefit, and then his agreement subsequent amounts to a command; for, in this case, omnis ratihabitio retrotrahitur et mandato æquiparatur. But it is otherwise, if the trespass be not done to his use. A. having knowingly received from B. a chattel, (which B. has wrongfully seized,) upon demand refused to give it back to the owner; there was not any proof that the seizure was to A.'s use; it was holden, that A. was not a joint trespasser with B. Although every person has of common right a liberty of coming into a public market for the purpose of buying and selling, yet he has not of common right a liberty of placing a stall there, but he must acquire such liberty by a compensation, which is called stallage. Hence trespass may be maintained by the owner of the soil against a person who unlawfully places a stall in the market. The authority of the preceding case was recognised in the Mayor, &c. of Norwich v. Swann, 2 Bl. R. 1117, where it was holden, that trespass would lie for setting tables in a market-place for the sale of goods without leave of the owner of the soil. The lord or owner of the soil may maintain trespass against a commoner, who is guilty of an entry on the common, for the purpose of chasing the conies there: for the commoner can justify an entry merely for the purpose of using his common.

Tenants in common ought to join in trespass quare clausum fregit, for if one tenant in common bring trespass qu. cl. fr. without his companion, it may be pleaded in abatements. In trespass vi et armis for taking and carrying away goods, it is not essentially necessary that the plaintiff should, at the time when the act was done which constitutes the trespass, have the actual possession of the thing which is the subject matter of the trespass: it is sufficient, if he has a constructive possession in respect of the right being actually vested in him. Hence, if a lord be entitled to a waif and estray, within his manor, he may before seizure maintain trespass against a stranger who shall take away the waif or estray; for the right is in the lord, and a constructive pos

c 4 Inst. 317. cited by Park, J. 4 B. & Ad. 616.

d Wilson v. Barker and Mitchell, 4. B. & Ad. 614.

e Mayor, &c. of Northampton v. Ward,
2 Str. 1238. 1 Wils. 107.

f Hadesden v. Gryssell, Cro. Jac. 195.
g Comyns' Dig. Abatement (E. 10.)
h F. N. B. 91. b.

session, in respect of the thing being within the manor of which he is lord. So an executori has a right immediately on the death of the testator, and this right draws after it a constructive possession from the time of the death of the testator. If a man gives me goods, which are at York, and before I have possession a stranger take them, yet I shall have trespass; because by the gift the property is in me, to which the law annexes possession. But semble that the gift must be by deed or instrument of gift!. The owner of a piece of land granted liberty to A. and his heirs to build a bridge on his land, and A. covenanted to build a bridge for public use, to keep it in repair, and not to demand toll. The bridge was built by A. of materials purchased at his expense: part of the materials of the bridge having been taken away by a wrong-doer, it was holden, that the public had only a license to make use of the materials while they formed part of the bridge for the purpose of passage; and when they ceased to be part of the bridge, A.'s original property in them reverted to him, discharged of the right of user by the public, and consequently that A. might maintain trespass for the asportavit against the wrong-doer. In like manner, if the owner of land builds houses", and marks out a street, and assigns part of the land as a public highway; this will not be considered as a transfer of the absolute property in the soil, so as to prevent the owner from maintaining trespass for an injury to the soil, e. g. for placing the end of a bridge thereon.

An action of trespass lies against any person who gleans on another's ground after harvest°; for a right to glean cannot be claimed by any person at common law. Neither have the poor of a parish legally settled such right. Trespass will lie P against a peace officer who seizes goods under a searchwarrant not specified therein. Though the freehold of the church-yard is the parson's, trespass lies at the suit of a person at whose expense a tomb-stone has been erected, against a person who wrongfully removes it from the church-yard and erases the inscription 4. It is a direct trespass to injure the person of another, by driving a carriage against the carriage wherein such person is sitting, although the last-mentioned carriage be not the property nor in the possession of the person injured. And although if a person does an injury

i Fisher v. Young, 2 Bulstr. 268.
k Bro. Abr. Trespass, pl. 303.

1 Irons v. Smallpiece, 2 B. & A. 551.
m Harrison v. Parker, 6 East, 154.
n Lade v. Shepherd, Str. 1004.
o Steel v. Houghton and Wife, per Ld.
Loughborough, C. J., Heath, J., and

Wilson, J.; dissentiente Gould, J., 1 H. Bl. 51.

p Crozier v. Cundey, 6 B. & C. 232. q Spooner v. Brewster, 3 Bingh. 136.

r Hooper and Wife v. Reeve, 7 Taunt. 698.

by an unavoidable accident, an action does not lie, yet if any blame attaches to him, although he be innocent of any intention to injure, as if he drive a horse too spirited or pull the wrong rein, or use imperfect harness, and the horse taking fright kills another horse, then trespass may be maintained.

II. Where Trespass cannot be maintained.

Ir the entry be warranted by law, it is not a trespass. Such is an entry to demand rent due for the enjoyment of the land, to take and carry off tithes after they have been set forth, or to distrain for rent arrear or damage feasant. It had been holden that a person might justify the following a fox with hounds over the grounds of another, if there were not any further damage committed than was absolutely necessary for the killing the fox, but the law now is, that a person may not enter the grounds of another merely for the sport and diversion of the chaset. Where a person goes out sporting with his friends, and purposely leads them on to another's land, he is equally guilty of a trespass ", although he may remain off the land whilst his friends go on it. But in Mason v. Keeling, Ld. Raym. 608, Holt, C. J. said, that if a dog breaks a neighbour's close, the owner will not be subject to an action. One tenant in common cannot bring an action of trespass against his co-tenant, because each of them may enter and occupy in common, &c. per my et per tout, the lands and tenements which they hold in common. So if from the finding of the jury it appears to be a tenancy in common ; judgment shall be given for defendant, although the issue be found against him. Bargainee cannot maintain trespass before entry and actual possession. If A. make a lease for years, excepting the trees, and had afterwards an intention to sell them, the law gives the lessor, and those who would buy, power as incident to the exception to enter and shew the trees to those who would buy them, for without

y Benington v. Benington, Cro. Eliz.

157.

r Wakeman v. Robinson, 1 Bing. 213. x Littl. Sec. 323.
s Gundry v. Feltham, 1 T. R. 34.
t Earl of Essex v. Capel, Hertford
Sum. Ass. 1809. Ld. Ellenborough,
C. J., 2 Chitty, Game, 1381. And
see the remarks there of the C. J. in
Gundry v. Feltham.

u Hill v. Walker, Peake's Addl. Cases,

z Admitted Lutwich v. Mitton, Cro. Jac. 604.

a Liford's case, last resolution, 11 Rep. 52 a.

sight none would buy, and without entry none could see. A lessor, during the term, cut down some oak pollards growing upon the demised premises which were unfit for timber: it was holden, that as tenant for life or years would have been entitled to them, if they had been blown down, and was entitled to the usufruct of them during the term, the lessor could not, by wrongfully severing them, acquire any right to them; and, consequently, that he or his vendee could not maintain trespass against the tenant for taking them. The plaintiff was the landlord of a house, which he let to A. ready furnished, and the lease contained a schedule of the furniture. An execution issued against A. under which defendant, as sheriff, seized part of the furniture, although notice was given to the officer that it was the property of plaintiff: plaintiff brought trespass. Adjudged per cur. that it would not lie. Trespass will not lie by the assignees of a bankrupt against a sheriff d for taking the goods of a bankrupt in execution, after an act of bankruptcy, and before the issuing of the commission, notwithstanding he sells them after the issuing of the commission, and after the provisional assignment, and notice from the provisional assignee not to sell. Condemnation of goods in the Exchequer is so conclusive and so alters the property, that trespass will not lie against the officer for seizing the goods condemned; for the condemnation has relation to the time of seizure, at which time the goods were the goods of the king and not of the plaintiff. So where a ship was seized as forfeited under the navigation act, 12 Car. 2, c. 18, by a governor of a foreign country belonging to Great Britain, it was holden that the owner cannot maintain trespass against the party seizing, although the latter do not proceed to condemnation; for by the forfeiture the property is divested out of the owner. So where a ship is bond fide seized as a prize, the owner cannot & sustain an action in a court of common law for the seizure, though she be released without any suit being instituted against her, his remedy, if any, being in the court of admiralty. Trespass cannot be maintained for taking an excessive distress, where the distress is lawful, the whole being one entire acth. Nether will trespass lie for an irregular distress, where the irregularity complained of is not in itself an act of trespass, but consists merely in the omission

b Channon v. Patch, 5 B. & C. 897.

c Ward v. Macauley and another, 4 T. R. 489.

d Smith v. Milles, 1 T. R. 475. See ante, p. 233.

f Wilkins and others v. Despard, 5 T.

R. 112.

g Faith v. Pearson, 4 Campb. 357.
2 Marsh. 133.

h Lynne v. Moody, 2 Str. 851.

e Scott v. Shearman and another, 2 Bl. i Messing v. Kemble, 2 Campb. 115.

R. 977.

1

of some of the forms required in conducting the distress, such as not procuring goods to be appraised before they are sold (4).

Neither will it lie against an officer for taking goods or cattle by virtue of a replevink, unless a claim of property be made at the time when the officer comes to demand them. Trespass will not lie against a coroner for causing a person to be put out of the room where an inquest was about to be holden, after his refusal to depart. It did not appear that the plaintiff had any interest in the matter of the inquest which the coroner was about to take, or any information to offer, which might further the object of the inquiry. If a person rated to the poor, object to the rate m, e. g. because it is a prospective rate, he ought to appeal to the next sessions;

k Per Holt, C. J. in Hallett v. Byrt, m Durrant v. Boys, 6 T. R. 580. Carth. 381. Secus, if he has no land in the parish in which the rate is made. Weaver v. Price, 3 B. & Ad. 409.

1 Garnett v. Ferrand and another, 6 B. & C. 611.

(4) The true construction of the provision in 11 G. 2. c. 19. s. 19, that the party may recover a compensation for the special damage which he sustains by an irregular distress, "in an action of trespass, or on the case," (see ante, p. 691, 2,) is, that he must bring trespass, if the injury be a trespass; and case, if it be the subject matter of an action on the case. The nature of the irregularity must determine the form of action. Hence for an irregularity consisting in the omission to appraise the goods before they were sold, the action ought to be an action on the case. But where the party remained in possession of the goods in the plaintiff's house beyond the five days, and then removed the goods, it was holden, that trespass was maintainable; Ld. Ellenborough being of opinion, that the removal of goods was a distinct, subsequent, and substantive act of trespass; and Bayley, J. conceiving, that although the party was warranted in removing the goods, yet the action would lie for remaining in possession beyond the five days, that being a new act of trespass; and that damages might be given for such continuance, although the party was not a trespasser during the five days. Lord Ellenborough observed, that he could not understand the statute as giving an option to maintain trespass, where trespass would not lie by the rules of the common law; but as giving an election to bring trespass, where trespass was the proper remedy, and case where case. Winterbourn v. Morgan, 11 East, 395. See Etherton v. Popplewell, ante, p. 692. If a sheriff continues in possession after the return day of the writ, that irregularity makes him a trespasser ab initio, but will not support the allegation of a new trespass committed by him after the acts which he justifies under the execution. Aitkenhead v. Blades, 5 Taunt. 198.