7. See article by Maitland, Register of Original Writs,
3 Harv.L.Eev. 212, 217—220 (1889).
~. Ames, Lectures on Legal History, Lecture IV, Trespass IDe Bonis Asportatis, 56 (Cambridge 1913); Holmes, The Common Law, Lecture I, Early Forms of Liability, 3—4; Lecture III, Trespass and Negligence, 74, 100—101 (Boston 1951); Maitland, Equity and the Forms of Action, Lecture V, 48—SO (Cambridge 1948).
9. Many of the early eases Involvod a trespass to both real and personal property. In such cases the plaintiff alleged the trespass for, let us say, the breaking and entering of the dwelling house, as the principal trespass, and then added the injury to the personal property Incidental thereto, as was said, by way of aggravation of damages. For a case involving this point, see Chamberlain v. Greenfield, 2 WmML 810, 06 Eng.Rep. 476 (1772).
goods; or upon his relative rights, as where a person beats or debauches another’s daughter or servant. All trespasses, whether to person, property or relative rights, whether committed with actual or implied force, were and are called “trespass vi et armis.”
As we have seen, a trespass is an injury committed with violence, and this violence may be either actual or implied; and the law will imply violence, even though none was actually used, where the injury is of a direct and immediate kind, and committed on the persan or the tangible and corporeal property of the plaintiff; 1° that is, if the injury is direct, and not consequential, the proper remedy to recover damages is by the Action of Trespass.”
U, however, a tort is committed without force, either actual or implied, or the injury was merely consequential, or if, in the case of injury to property, the plaintiff’s right or interest was only in reversion at the time of the injury, Trespass will not lie, and the remedy, as will be seen, must be by an Action on the Case or Trover’2 10. Stephen, A Treatise on the Principles of Pleading In Civil Actions, c. 1, Of the Proceedings In an Action From Its Commencement to Its Termination, 13 (Williston ed., CambrIdge, 1895).
I’. English: Scott v. Shepherd, 2 W.BI. 892, 96 Eng.
Rep. 525 (1773), Leame v. Bray, 3 East 802, 102 Eng.
Rep. 724 (1803); Gregory v. Piper, 9 Barn. & C. 591,
109 Eng.Rep. 220 (1829); Reynolds v. Clerk, 8 Mod.
272, 88 Eng.Rep. 193 (1725); Illinois: Painter v.
flaker, 16 III. 103 (1854); Michigan: smith v. Webster, 23 Mich. 298 (1871); Barry v. Peterson, 48
Mich. 263, 12 N.W. 181 (1882); New Hampshire:
Ricker v. Freeman, 50 N.H. 420, 9 Mn.Bep. 267
(1870); Virginia: Winslow v. Beal, 6, Call. (Va.) 44
(1806); Vermont: Claffin v. Wilcox, 18 Vt. 605
12. In addition to the cases cited just above, see the following: English: Ward v. Macauley, 4 T.R. 489, 100 Eng.Rep. 1135 (1791); Gordon v. Harper, 7 P.R.
9, 101 Eng.Rep. 828 (1796); illInois: Frankenthal v. Camp, 55 III. 169 (1870); Massachusetts: Adams v. lieznmenway, 1 Mass. 145 (1804); Michigan: Eaton
v. Winnie, 20 Mich. 156, 4 Ani,Rep. 377 (1870); Barry v. Peterson, 48 Mich. 263, 12 NW. 181 (1882);
Pennsylvania: Smith v. Rntherford, 2 Serg. & H.
FORMS OF THE DECLARATION 78. The Forms of the Declaration in Trespass included in this section are Trespass for Assault and Battery, a Form of Trespass to Personal Property, known as Trespass de honis asportatis, and Trespass to Real Property, known as Trespass quare clausum fregit.
DEclARATIoN IN TRESPASS
(For an Assault and Battery) IN THE KING’S BENCH, Term, in the year of the reign of King George the Fourth.
_______ to wit, C. D. was attached to answer A. B. of a plea, wherefore he, the said C. D. with force and arms, at in the eoimty of , made an assault upon the said A. B., and beat, wounded, and ill-treated him, so that his life was despaired of, and other wrongs to him there did, to the damage of the said A. B., and against the peace of our lard the now king. And thereupon the said
aforesaid, in the county aforesaid, made an assault upon the said A. B., and then and
(Pa.) 358 (1816); Clotteral v. Cummins, 6 Serg. & B. (Pa.) 343 (1821).
In some of the states In which the Common-Law Forms of Actions were formerly or are now is Use, the distinction, as to the Form of Action, between Trespass and Trespass on the Case, has been abetished. Thus, prior to recent changes, Hard’s Rev,St. 1111921, c. 110, ~ 36 provided: “The distinctions between the Actions of ‘Trespass’ and ‘Trespass on the Case’ are hereby abolished; and In all cases where Trespass or Trespass on the Case has been heretofore the appropriate form of action, eitber of said forms may be used, as the party bringing the action may elect.”
See, in this connection, Elajoek v. Randall, 76 III. 221
(1875); GaIt v. Chicago & N. W. R. Co., 157 III. 125,
41 N.E. 643 (1845); George v. Illinois Cent It. Co.,
197 I1i.App. 152 (1915); Kaplscbkl v. Koch, 180 IlL
44, 54 N.E. 179 (1899): Chicago Title & Trust Co. v.
Core, 223 111. 58, 79 N.E. 108 (1906).
See, also, the case of Lawry v. Lawry, 88 Me. 482, 34 Atl. 273 (1896).
ACTION OF TRESPASS
there beat, wounded and ill-treated him, so that his life was despaired of, and other wrongs to the said A. B. then and there did, against the peace of our said lord the king, and to the damage of the said A. B. of £ ; and therefore he brings his suit, &c.
STEPHEN, A Treatise on the Principles of Pleading in Civil Actions, p. 70 (3rd Am. ed., Washington, D.C. 1892).
DECLARATION IN TRESPASS
(Dc Bonis Asportatis)
IN THE KING’S BENCH, Term, in the year of the reign of King George the Fourth.
______ to wit, C. D. was attached to answer A. B. of a plea, wherefore he, the said defendant, on, &c., with force and arms, &c., to wit, at, &c. (Venue) seized and took a certain barge or vessel of the said plaintiff, of great value, to wit, of the value of
and in which said barge or vessel, the said plaintiff then and there intended, and was about to carry and convey certain goods, chattels, and merchandise, for certain freight and reward, to be therefore paid to the said plaintiff, and then and there carried away the said barge or vessel, and kept and detained the same from the said plaintiff for a long space of time, to wit, hitherto, and converted and disposed thereof to his own use, and thereby the said plaintiff was hindered and prevented from carrying and conveying the said goods, chattels and merchandise as aforesaid, and thereby lost and was deprived of all the profits, benefit and advantage which might and would otherwise have arisen and accrued to him therefrom, to wit, at &c. (venue) aforesaid, and other wrongs to the said plaintiff then and there did, against the peace of our said lord the king, and to the damage of the plaintiff
of £ ; and therefore he brings his suit, &c.
2 CHfl’~Y, Pleading, 861 (Springfield,
DECLARATION IN TRESPASS
(Quare Ciausum Fregit)
IN TIlE KING’S BENCH, Term, in the year of the reign of George the Fourth.
to wit, C. D. was attached to answer
A. B. of a plea, wherefore he, the said C. D., with force and arms broke and entered the close of the said A. B., situate and being
in the parish of in the county of
_______ and with his feet, in walking, trod down, trampled upon, consumed, and spoiled the grass and herbage of the said A. B., there growing, and being of great value) and other wrongs to the said A. B. there did, to the damage of said A. B. and against the peace of our lord the now king. And thereupon, the said A. B., by , his attorney, complains: For that The said C. D. heretofore, to wit, on the day of , in the year of our Lord, , with force and arms, broke and entered the close of the said
A. B., that is to say, a certain close called situate and being In the parish aforesaid, in the county aforesaid, and with his feet, in walking, trod down, trampled upon, consumed, and spoiled the grass and herbage of the said A. B., then and there growing, and being of great value, to wit, of the value of £______ of lawful money of Great Britain, and other wrongs to the said A. B., then and there did, against the peace of our said lord the king, and to the damage of the
said A. B. of £ ; and therefore he
brings his suit, &c.
STEPHEN, A Treatise on the Principles of Pleading in Civil Action, p. 70 (3rd Am. ed., Washington, D.C., 1892).
DECLARATION IN TRESPASS—ESSENTIAL
ALLEGATIONS: (1) IN GENERAL 79. The Essential Allegations of the Declaration in Trespass are:
(I) For Injuries to the person:
(A) The application of force by direct act of defendant. (B) The Damages. (II) For injuries to real or personal property, or to relative rights:
(A) The Title or Right of plaintiff (B) The Wrongful Act of defendant,
causing direct injury.
(C) The Damages. DECLARATION IN TRESPASS—ESSENTIAL
ALLEGATIONS: (2) THE PLAINTIFF’S
RIGHT, TITLE, INTEREST OR POSSESSION13
80. In alleging plaintiff’s Right, Title, Interest or Possession in the various Actions of
Trespass: (I) For injuries to the person no statement of the right is required.
(0) For injuries to real or personal property, or to relative rights:
(A) In General:
(1) The technical limits of Trespass to the party in possession, or with the immediate right of possession, are probably due to its origin as a semi-criminal action, covering a wrongful application of force which might lead to violence and a breach of the peace; (2) Possession is to be distinguished from the custody of a servant; and a bailee at will is given the rights of a possessor, though for most purposes his possession Is that of the bailor;
In some states both a tenant at will and the landlord may sue in Trespass;
(II) For injuries to real or personal property, or to relative rights— Cont’d
(A) In General—Cont’d
(4) The family of the owner are
licensees and do not have
possession by reason of their
occupancy alone; (5) The owner of land not in the actual possession of another is said to be in constructive possession; that is, he is given the remedies of a possessor
(6) Naked possession is sufficient as against a wrongdoer.
(B) Specifically, the Declaration in Actions of Trespass to
Property, Real or Personal, or to Relative Rights should: (I) State the property or thing
affected and the Title or Right of the plaintiff in relation thereto; (2) Show such possession, actual or constructive, as is sufficient to sustain the action;
(3) Describe the property sufficiently for identification, hut the plaintiff’s Title or Interest may be generaliy stated.
Trespass for Personai Injury
IN Trespass for injury to the person, the Declaration need only contain a statement of the wrongful act- This appears to be an exception to the rule that the Declaration in all Forms of Action should contain a Statement of the Right of the plaintiff as well as the Violation of that Right by Act of the defendant. But since the right of personal security and liberty belong to all, there is no necessity of alleging their existence in the pleading; the court takes judicial notice thereof. All that is nece~ary, therefore, is the statement of The wrongful act of the defendant, such as an assault and battery, or
13. See Chapter 4, note 21, for a discussion of legal
concepts of right, Interest, and possession.
ACTION OF TRESPASS
false imprisonment, and the damages caused thereby.
Trespass to Prop erty—Inciuding Real and Personal IN order to maintain an Action of Trespass for injury to either real” or personal property,15 the plaintiff must allege, by Way of Title, that he was in actual or constructive possession, at the time the injury occurred. He must have actual possession, or the right to immediate possession. If his right was
14. Illinois: Topping v. Evans, 58 III. 209 (1871);
Maine: United Copper Mining & Smelting Co. v. Franks, 85 Me. 321, 27 MI. 185 (1893); Massachusetts: Lienow v. flitchie, 8 Pick. (Mass.) 235 (1828); Bascom v. Dempsey, 143 Mass. 409, 0 N.E. 744(1887); Michigan; Goetchins v. Sanborn, 46 Mieh. 330, 9 N. W. 437 (1881); Stout v. Keyes, 2 Doug. (MiCh.) 184, 43 Ain.Dee. 465 (1845); Minnesota: Moon v. Avery, 42 MInn. 405, 44 N.W. 257 (1890); New York: Campbell v. Arnold, 1 Johns. (N.Y.) $11 (1806); Tobey v. Webster, 3 Johns. (N.Y.) 468 (1808); PennsylvanIa:
Schnable v. Koebler, 28 Pa. 181 (1857); Wilkinson v. Connell, 158 Pa. 126, 27 Ml, 870 (1893); Yocum v. Zahner, 162 Pa. 468, 29 AU. 778 (1894); Rlpka v. Sergeant, 7 Watts & S. (Pa.) 9, 42 Am.flec. 214 (1844); Wisconsin: Gunsolus v. Lormer, 54 Wis. 630, 12 N.W. 62 (1882).
~S. English: Ward v. Macauley, 4 P.R. 480, 100 Eng. Rep. 1135 (1791); Gordon v. Harper, 7 P.R. 9, 101 Eng.Rep. 828 (1796); Hall v. Pickard, 3 Camp. 187, 170 Rng.Rep. 1350 (1812); Florida: Bucki v. Cone, 25 FIa. 1, 6 So. 160 (1889); Kentucky: Daniel v. Holland, 4 iJ.Marsh (Ky.) 18 (1830); Massachusetts: Ayor v. Bartlett, 9 PIck. (Mass.) 156 (1829); Winship v. Neale, 10 Gray (Mass.) 382 (1858); Parsons v. Dickinson, 11 PIck. (Mass.) 352 (1831);
Maine: Lunt v. Brown, 13 Me. 236 (1836); MIchigan: Finch v. BrIan, 44 Mich. 517,7 N.W. 81(1880);
Minnesota: Moon ‘cc Avery, 42 Minn, 405, 44 N.W, 257 (1890); New York: Carter v. SImpson, 7 John~. (N.Y.) 535 (1811); Putnam v. Wyley, S Johns. (N.Y.) 432, 5 Am.Dec. 346 (1811); Van Brunt v. Schenek, 11 Johns. (N.Y.) 377 (1814); Pennsylvania: Fitler v. Shotwell, 7 Watts. & S. (Pa.) 14 (1844).
In Pinch v. Brian, supra, the plaintiff had left meat at the defendant’s house under an agreement for Its sale, and the defendant, after consuming a part of It, refused to take and pay for It. The lower Court sustained an Action of Trespass for such consuniption, and, of course, on Appeal the Judgment was reversed.
merely in reversion, his remedy was in Trespass on the Case, not Trespass.’°
A General and Special Property interest
IT is frequently said that an Allegation of a General or Special Property Interest is sufficient to support an Action of Trespass. This is true if properly understood.
Thus, the general owner of personal property, who parts with custody thereof, does not necessarily part with his possession so as to prevent his maintaining Trespass against a stranger. The person who has the absolute or general property interest ‘~ may maintain the action, though, when the injury occurred, he had parted with the custody to a carrier, servant, or other agent, where it appears that he gave the latter only a bare authority to carry or keep, not coupled with any special interest in the property. And generally, if the owner of - personal property merely permits another gratuitously to use it, having a right to retake possession at any time, he may sue a stranger in Trespass for an injury done to it while it was so used.’-~ The rule applies equally to an Action of Trespass by a bailee who had an authority, coupled with an interest, and a right to irnme
16. Illinois: Halligan v. Chicago & H. I. R. Co., 15 III.
553 (1854); Colorado: Naehtrieb v. Stoner, 1 Cole.
‘7’ English: Gordon y. Harper, 7 ‘LB. 9, 101 Eng.Itep.
828 (1796); Bertie v. Beaumont, 16 East, 33, 10-1
Eng,Bep. 1001 (1812); Alabama: White v. Brantley,
37 Ala. 430 (1861); Connecticut: Williams v. Lewis,
3 Day (Conn.) 498 (1807); Bird v. Henipstead, 3
flay (Gonn.) 272, 3 Am.Dec. 269, (1808); Buckley v.
Dolbeare, 7 Conn. 235 (1828); Maine: Staples v.
Smith, 48 Me. 470 (1861); New Hampshire: Lane v.
Thompson, 43 N.H. 320 (1861); New York: Putnam
V. Wyley, S Johns. (N.Y.) 432, 5 .Am.Dec. 346 (1811);
diate possession, although he did not have the actual possession at the time of the injury.19 These cases involve a constructive possession, which, as we have seen in the very beginning, was a sufficient Allegation of Title to support the action.2° If, however, the owner of personal property parts with possession of it, and the bailee, at the time when it is injured by a stranger, has the exclusive right to its use, the owner’s right is merely in reversion, and his remedy is by an Action on the Case, and not Trespass.2’
The Agent or Servant Acting in Behalf of His Principal or Employer
A MERE servant, acting in behalf of his employer, and having the bare custody of the goods at the time they are injured, cannot maintain Trespass, or any other possessory action, for, in contemplation of law, he
19- 1 Chitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms, e. II, Of the Forms of Action, 190 (16th Am. ccl. by Perkins, Springfield 1870); 2 Saunders, Law of Pleading nnd Evidence in Civil Actions, 1115 (5th Am. ccl. Philadelphia 1851).
See, also, the following cases: English: Fowler V.
Down, 1 Bos. & Pu). 45, 126 EngRep. 760 (1797);
Gordon v. Harper, 7 P.R. 9, 101 Eng.Rep. 828
(1796); Ilackliam V. Jesup, 3 Wils. 332, 95 Eng.Rep.
20. Dailam v. Fitler, 6 Watts & S. (Pa.) 323 (1843); Talinndge V. Seudder, 38 Pa. 517 (1861); North V. Turner, 9 Scrg. & B. (Pa.) 244 (1823).
21. English: Ward v. Maeauley, 4 T.R. 489, 100 Eng. Rep. 1135 (1791); Gordon v. Harper, 7 TB. 9, 101 EngJtep. 878 (1796); Hall -cc Pickard, 3 Camp. 187, 170 Eng.rtep. 1350 (1812); Smith v. Plomer, 1~ East
607, 104 Eng.ltep. 972 (1812); Connecticut: Bulkley v. Dolbeare, 7 Conu. 235 (1828); Illinois: Cannon v. Kinney, 3 Scam. Ill. 10 (13413; Maine: Lunt v. Brown, 13 Me. 236 (1836); Massachusetts: Muggridge v. Eveleth, 9 Mete. (Mass.) 233 (1845); New
Hampshire: Wilson v. Martin, 40 N.H. 88 (1860); New York: Putnam v, Wyley, 8 Johns. (N.Y.) 432 (1811); Pennsylvania: Fitler v. Shotwell, 7 Watts & S. (Pa.) 14 (1844); Vermont: Sopor v. Sumner, 5 Vt, 274 (1833); Hammond v. Plimpton, 30 Vt. 333 (1858),
has no possession, actual or constructive.22 While there appears to be no very substantial distinction between the custody of a servant and the possession of a depositary at will, nevertheless, the bailee is allowed the p05-sessory remedies, but the servant is not. A servant or agent is denied the rights and remedies of a possessor, because his acts are the acts of his employer, and hence the rights which he represents are those of his employer.23 By an anomaly of the Common Law, a subservient bailee, like a depositary for storage, who holds, like a servant, entirely at the orders of the bailor, is yet regarded as having legal possession rather than mere custody and hence may sue a trespasser.
There can hardly be such a thing as possession in law, entitling one to the possessory remedies, without a claim of Title, or at least some independent claim of a limited or temporary interest. A tenant at will or a bailee at will has possession as against the public in general, though for most purposes his holding is the possession of the owner.
Trespass to Real Propefly—Quare Clau.sum Fregit
WITH a few exceptions what has been said with reference to alleging Title in Trespass to Personal Property applies equally in alleging Title to Real Property. The gist of the action of Trespass quare clausum fregit is the injury to the possession, and the general rule is that the plaintiff, in order to maintain the action, must allege that he was in actual or constructive possession ~‘ of the realty at
22. English: Bloss v. Holman, Owen 52, 74 Eng.Rep.
- 893 (1551); Illinois: Pease v. Ditto, 189 III. 456, 59 N.E. 983 (1901),
23. Illinois: Pease v. Ditto, 189 III. 456, 59 N.E. 983 (1901); New York: Russell v. Scott, 9 Cow. (N.Y.) 279 (1828).
24. In general, on the subject of possession, see:
Treatises: Martin, Civil Procedure at Common Law, e. XIII, Rules of Pleading, * 268 (St. Paul, 1905); Stephen, A Treatise on the Principles of Pleading in Civil Actions, e. II, Of the Principal Rules of Plead-
ACTION OF TRESPASS
the time the injury was committed.25 As in the case of personal property, if the plaintiff’s right was merely in reversion, his remedy is by an Action on the Case, not Trespass.
Where the land is in the exclusive possession of a lessee, other than a tenant at will, and in some states even if a tenant at will, Case, and not Trespass is the remedy by the landlord for an injury by a stranger affecting the inheritance, even where Trespass would be the proper remedy if the landlord himself were in possession.28 In some jurisdictions it is held that Trespass will lie in such a case by the landlord if the tenant in possession was merely a tenant at will, since the landlord has such a constructive possession as will sustain the action; ~7 but in New York the contrary was held on the ground that, in the opinion of the court, possession
ing, § 4, 256 (3d Am. ed. by Tyler, Washington, B. C. 1893); Sbipman, Handbook of Common-Law Pleading, e. III, The Action of Trespass, § 37, The Plaintiff’s Right or Title In Trespass, 75—82 (3d ed. by Ballantine, St. Paul 1923),
Articles: Terry, Possession, 13 Ill,L.Rev. 314 (1018); Eingham, The Nature and Importance of Legal Peasession, 13 Mieh.L.Rev. 535, Id. at 623 (1915); Ballantine, Claim of Title In Adverse Possession, 28 Yale L.J. 219 (1919).
25. Indiana: Bucker ‘cc MeNeely, 4 macId. (md.) 179 (1836); Maine: Bartlett ‘cc Perkins, 13 Me. 87 (1830); Moore v. Moore, 21 Me. 350 (1342); Maryland: Dorsey v. Eagle, 7 Gill. & J. (Md.) 321 (1835)
Massachusetts: SDarhawk v. Bagg, 16 Gray (Mass.) 583(1860); Michigan: Carpenter v. SmIth, 40 Mich, 839 (mOD); Pfistner v. Rh-a, .43 Mich. 14, 4 N.W. 625 (1880); New York: Stuyvesant v. Tompkins, 9 Johns. (N.Y.) 61 (1812); Wickhaln v. Freeman, 12 Johns. (NY,) 183 (1815); PennsylvanIa: Alderman cc Way, 4 teates (Pa.) 218 (1805); Matber v. Trinity Church, 3 Berg. & B. (Pa.) 509, 8 Am,Dee. 603 (1516); Vermont: Ripley v. Yale, 16 Vt. 257 (1844); Oatmarz v. Fowier, 43 ‘Vt. 484 (1871).
25. Massachusetts: Lienow v. Ritchie, S Pick. (Mass.)
235 (1829); Missouri: Roussin v. Benton, 6 Mo. 592
in fact was necessary,28 and the same ruling has been made in other states.2°
The mere occupancy of land by a hired servant of the owner, without paying rent, is not possession. In such case the possession is said to be constructively or actually in the owner, and he may maintain Trespass as if he had been in actual possession himself?0 Likewise, the family or servants, the guests or lodgers, of a householder, do not have possession, even during the absence of the owner, as there is no claim of title or interest on their part even at the time. Their occupation is regarded as entirely subordinate to and in the name of the owner. Possession implies some claim of title or independent holding.3’ A Wisconsin case 32 illustrates a questionable failure to apply this doctrine. It appeared that B, the defendant, had committed a trespass during the absence of C, the husband of the plaintiff, A. In an action by A, the wife, it was held that she had sufficient possession to maintain Trespass, on the theory that she was in the exclusive occupation of the premises in the absence of her husband. It is submitted that the court overlooked the point that occupancy and residence are not possession, unless under a Claim of Title of some sort. The situation of the wife would appear to be like that of