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28. Campbell v. Arnold, I Johns. (N.Y.) 511 (1806); Tobey v. Webster, 3 Johns. (N.Y.) 468 (1808).
29. Illinois: Kankakee & S. B. Co. v. Bonn, 131 III.

288, 23 N.E. 621 (1890); Pennsylvania: Clark v.

Smith, 25 Pa. 137 (1855).
3°. English: Bertie v. Beaumont, 16 East 33, 104 Eng.Bep. 1001 (1812); South Carolina: Davis v. Clancy, 3 McCord (S.C.) 422 (1826).
3” See Ft. Dearborn Lodge v. Klein, 115 Ill. 177, 3 N. B. 272, 56 Am.Rep. 133 (1885). Compare, however, the articles by Terry, Possession, 13 IlI.LRev. 314, 320 (1918); Bingham, The Nature and Importance of Legal Possession, 13 Mlch,L.Rev. 549, 631, 633 (1915); Ballnntlne, Claim of Title in Adverse Pos­session, 28 Yale L.J. 219 (1919),
32’ Bieri v. Fonger, 139 Wis, 150, 120 NW. 863 (1909). See, also, Ford cc Schuiessman, 107 win. 477, 83 N. W. 761 (1900), and note; Property: Statute of Limi­tations—Title to Land, 14 Harv.L,Rev. 389 (1901).

Kottler & Reppy comLaw PIdg. 11,5—7

OFFENSIVE PLEADINGS

160
a servant or licensee or guest. The presump­tion is that the joint occupancy of husband and wife is the possession of the husband, al­though this may be rebutted.33
In England and in some of our states, New York in particular, it was held that the rule that the general ownership of property draws to it the possession, applicable to personal property, does not apply to real property; that in the case of real property there is no such constructive possession, and hence unless the plaintiff had the actual possession by himself or his servant at the time of the injury, he cannot maintain Tres­pass.34 In most of our states the rule is otherwise, and the owner of Land not in the actual possession of another is given the remedies of a possessor.35 If no one has actual possession, the owner of the Legal Title has constructive possession; but there
33. Collins v. Lynch, 157 Pa. 246, 27 LU. 721, 37 Am. St.Rep. 723 (1893).
34. 1 Chitty, A Treatise on Pleading and Parties to

Actions, with Precedents and Forms, c. II, Of the

Forms of Action, 197 (16th Am. ed. by Perkins,

Springfield 1876); 0 Bacon, New Abridgment of

tile Law, 554 at 566, Trespass (C) 3, (5th ed. by

Gwilliin, London, 1798).


See, also, the following eases: English: King v. Wat­son, 5 East 485, 102 Eng.Rep. 1156 (1504); Ken­tncky: Fish v. Brnnamon, 2 tMon. (Ky.) 379 (1842) Walton v. Clarke, 4 Bibb. (Ky.) 218 (1815); llfassa­ehusetts: Spathawk v. Bagg, 16 Cray (Mass.) 583 (1860); Allen v. Thayer, 17 Mass, 299 (1821); New

York: Campbell v. Arnold, 1 Johns. (N.Y.) 511

(1800).
35. .AJat,ama: Gillespie v. Dew, 1 Stew. (Ala.) 229, 18 .&m.Dec. 42 (1827); Arkansas: Ledbetter ‘cc Fitz­gerald, I Ark. 448 (1839); ConnectIcut: Bulkley v. Dolbeare, 7 Conn. 232 (1828); Wheeler v. Botch­kIss, 10 Cona. 225 (1834); Illinois: Dean v. Com­stock, 32 Ill. 173 (1863); Cairo & St. Le. B. Co. V. Woosley, 85 Ill. 370 (1877); Wilcox v. Kinzle, 3 Seam. (IlL) 218 (1841); Missonrl: Davis v. Wood, 7 Mo. 162 (1841); New York: Van Brunt v. Schenek, 11 Johns. (N.Y.) 385 (1814); Wiekbam v. Freeman, 12 Johns. (N.Y.) 183 (1815); North Carolina: Dobbs t GuIlidge, 20 N.e. 197 (1535); Cohoon ‘cc Simmons, 29 N.C. 189 (1847); Pennsylvania: Baker v. ~lng, 18 Pa. 138 (1851); South Carolina: Davis ‘cc Clancy.

3 McOord (8.0.) 422 (1826); Skinner v, McDowell, 2 l4oft & MeC. (8.0.) 68 (1819).

Cli. 7 cannot be constructive possession of land by the holder of the Legal Title where third persons are in actual adverse possession.3~


Where Land is in the Actual and Lawful Pos­session of the Wrongdoer—Spec~ficatly the Tenant at Will

IN some cases Trespass may be maintain­ed for an injury to property, real or personal, while it was in the actual and lawful posses­sion of the wrongdoer, for an abuse of his possession may ipso facto terminate his pos­session in the eye of the law, and render him a Trespasser Ab lnitio?7 Thus, for example, it has been held that if a tenant at will com­mits waste, his wrongful act terminates the tenancy, possession is restored, and Trespass quare clausuni fregit may be maintained against him by the landlord or reversioner.38


This is what some of the English and American Courts have held, but is submitted that it is not a realistic explanation of what actually happened. At Common Law the Action of Waste was not available against a tenant at willY° When, therefore, a tenant at will committed waste—let us say be chop­ped down the century old shade trees in front of the mansion—the landlord demanded a remedy. There was none at the time as the Action on the Case was not yet in being. What happened? They took the Action of Trespass, which in legal theory, was avail­
38. Safford V. Barso, 4 Mien. 400 (1857); BuggIes v. Sands, 40 Mien, 559 (1879); O’Brien v. Cavanaugh, 61 Mich. 368, 28 N.W. 127 (1886).
37. ‘taylor v. Jones, 42 N.Th. 25 (1860); Drew v. Spaulding, 45 N.H. 472 (1864).
38. 1 Chltty, A Treatise on Pleading and Parties to Actions, with Precedents and Forms, e. II, Of the Forms of Action, 200 (16th .&m. ed. by Perkins, Springfield 1876).
See, also, the following cases: English: Countess of

Salop ‘cc Crompton, Cro.Eliz. 784, 78 Eng.Rep. 1014

(1602); Massachusetts: Daniels v. Pond, 21 Pick.

(Mass.) 367, 32 .Am.Dec. 269 (1838); New York:

PlñUips v, Covert, 7 Johns. (N.Y.) 1 (1810); Suf­fern v. Townsend, 9 Johns. (N.Y.) 35 (1812).
30. West v. Treucle, Cro.Car. 187, 79 Eng.ltep. 764-

Sec. 80

ACTION OF TRESPASS

161

able only for the protection of an actual pos­sessory interest, and stretched it to fill a temporary remedial gap. By his wrongful act of destroying the trees, the authorities argued, the tenant terminated the lease at will, restored the possession to the landlord, who then proceeded with his Action of Tres­pass. In reality, even after the wrongful act, the tenant at will remained in actual physical possession, and to say that the act restored possession to the landlord was a pure fiction—a fiction which continued in operation until the Action of Trespass on the Case came into operation as a Remedy for injury to reversionary interests. Somewhat the same sort of development took place when Trespass was originally permitted as a remedy in the seduction cases on the the­ory that the wrongdoer has interfered with the master’s possessory interest in his serv­ant, to wit, his daughter. In this instance, as in the tenancy at will, a fiction was cou­pled with the Action of Trespass to bridge a remedial gap, until Case came in as a rem­edy for the indirect consequential injury to the father resulting from the seduction of his daughter.4°


A Mere Naked Possession as Sufficient Title Against a Wrongdoer

SINCE the days of the Ancient Real Pos­sessory Actions, or more specifically, since the appearance of the Assize of Novel Dis­seisin, one forcibly ousted from his posses­sion could be summarily restored to his pos­session. The law protected one in possession of real property in order to prevent breaches of the peace. It is not surprising then to find that Trespass, being an interference with


40. Sec the following cases: English: \Voodward v. Walton, 2 Bbs. & Pul. (NS.) 476, 127 Eng.Rep. 715 (2807); Ditcham v. Bond, 2 Msule & 8. 436, 105 Eng Rep. 443 (1814); New York: Akerley ‘cc flames, 2 Caines (N.Y.) 292 (1805), in which Trespass was held to be the proper remedy for seduction of a daughter; and Moran ‘c-. Dawes, 4 Cow. (N.Y.) 412 (1825), dec14-ed Just twenty years later, In which the Court held that Trespass on the Case was the proper action.

the possession, the de facto exercise of do­minion over property, does not require a Legal Title to support it. Under the early Common Law, if the so-called Title, which was only an older possession, was involved, the remedy was by Writ of Right.4

In consequence of this development, it be­came e~tablished law that a mere naked pos­session, without any other Title, is sufficient as against a wrongdoer. In the case of Gra­ham v. Peat,42 The Court declared: “Any pos­session is a legal possession against a wrong­doer.” Possession is a sufficient Title to the plaintiff in an Action of Trespass vi et armis against a wrongdoer; the finder of an article may maintain Trespass against any person but the real owner; and, a person having an illegal possession may support this action against any person other than the true own­er.43
A bailee may maintain Trespass against a stranger, or even the general owner, for an injury to the property which is in his pos­session,44 and, as we have seen, even where
4. See Chapter 2,- The Development of the Common-Law Forms of Action.
42. Graham ‘cc Peat, 1 East 244, 102 Eng.Eep. 95 (1801).
43. English: Rackham v. Jesup, 3 Wils 332, 0~ Rug. Rep. 1054 (1772); Wilbraham v. Snow, 2 Saund, 47d, 85 Eng.Rep. 626 (1070); Iowa: Welch v. Jenks, 58 Iowa 694,12 N.W. 727 (1882); Illinois: Illinois & St.

L. Railroad & Coal Co. v. Cobb, 04 Iii. 55 (1879);

Maine: Barker v. Chase, 24 Me. 230 (1844); Massa­chusetts: Hubbard v. Lyman, S Allen (Massj 520 (1864); Burke v, Savage, 13 Allen (Mass.) 408 (1866); Adams v. O’Connor, 100 Mass. 515, 1 Am, Rep. 137 (1868); Minnesota: Laing v Nelson, 41 Minn. 521, 43 N.W. 476 (1539); North Carolina:

Horton v. Hens]ey, 23 N.C. 163 (3540); New York:

Hoyt v. Gelston, 13 Johns. (N.Y.) 141 (1816); Cook v. Howard, 18 Johns. (N.Y.) 276 (1816); Hammer v. Wilsey, 17 Wend. (N.Y.) 01 (1837); Hendricks v. Decker, 35 Barb. (N.Y.) 298 (1861); Butts v. Col­lins, 13 Wend. (N.Y.) 139 (1834); South Carolina:

Jones v. McNeil, 2 Bailey (S.C.) 466 (1831); Ten­nessee: Carson V. Prater, 6 Cold. (Tenn,) 565 (1869);

Vermont: Fisher v. Cobb, 6 Vt. 622 (1834); Potter ‘cc Washburn, 13 Vt. 558, 37 Ani.Dec. 815 (1841).
44. Heydon & Smith’s Case, 18 Coke 67, 69, 77 Eng. Rep. 1345, 1347; Brlerly V. Kendall, 117 Eng.

OFFENSIVE PLEADINGS

he had not the actual possession, if he had the right to take immediate possession, since he had the constructive possession. The quantity or certainty of the bai]ee’s interest is immateriaL45 Even a mere gratuitous bailee may maintain the action against a stranger.4° As we have seen, a person pro­fessedly in possession as a mere servant can­not maintain Trespass.


In general, what has been said as to mere naked possession with reference to Trespass to Personal Property applies to Real Prop­erty. In an Action of Trespass for injury to Real Property, the Title may come into ques­tion, but it is not essential that it should.47 Actual and exclusive possession without a Legal Title is sufficient against a wrongdoer or a person who cannot show any right or authority from the real Owner.48 Trespass,
Rep. 1541, 17 Q.B. 037 (1852). See, also, Ames, Lec­tures on Legal History, Lecture No. IV, Trespass De Bonis Asportatis, 59 (Cambridge 1913).
4~. 1 Chitty, A Treatise on Pleading and Parties to

Actions, with Precodents and Forms, e. II, Of the

Forms of Action 190 (16th Am. ed. by Perkins,

SprIngfield 1876). See, also, Coiwill cc Reeves, 2

Camp. 575, 170 Eng.flep. 1257 (1511); Booth v, ~Vi1-

son, 1 Barn. & AId. 59, 106 Eng.Bep. 22 (1817).
46. English: Booth v. Wilson, 1 Barn, & AId. 59, 106 Eng.Rep. 22 (1817); Minnesota: Laing v. Nelson, 41 Minn. 521, 43 N.W. 476 (1889).
47. 1 Chitty, A Treatise on Pleading and Parties to

Actions, with Precedents and Forms, c. II, Of the

Forms of Action 195 (16th Am, ed. by Perkins,

Springfield 1876). See, also, Lambert v. Stroother,

Willes 221, 125 Eng.Rep. 1141 (1740); Graham v.

Peat, 1 East 244, 102 Eng.Rep. 05 (1801); Cheasley

v. Barnes, 10 East 73, 103 Eng.Rep. 703 (1808).
48 English: Graham v. Peat, 2 East 244, 102 Eng. Rep. 95 (1801); Chatteris ‘cc Cowper, 4 Taunt. 547, 128 Eng.flep. 444 (1812); Dyson v. Collick. 5 Barn. & Aid. 600, 106 EnglIep. 1310 (1822); Chambers v. Donaldson, 11 East 65, 103 Eng.Rep. 928 (1809);

Illinois: Shoup V. Shields, 116 III. 488, 6 N.E. 502 (1886); Webb v. Sturtevant, I Scam. (III.) 182 (1835); Iowa: Welch ‘cc Jenks, 58 Iowa 694, 12 N. W. 727 (1598); MaIne: Moore V. Moore, 21 Me. 350 (1842); Massachusetts: Inhabitants of Barnstable v. Thatcher, 3 Mete. (Mass.) 239 (1841); Lltehfield V. Ferguson, 141 Mass. 97, 6 N.E. 721 (1886); Nickersou v. Thacher, 146 Mass. 609, 16 N.E. 581 (1888); MI cli­lgan: Fox v, flolcomb, 32 Mieh. 494 (1875); Hoff-

for example, has been sustained by a tenant

in possession under an illegal lease; ~

by

an intruder on public land, who had not been treated as such by the government.55 And a tenant for years,5’ at will,52 or, according to some of the authorities, at sufferance,53 may maintain an action against a stranger, or even againsf his landlord, where a right of entry was not expressly or impliedly reserv­ed to the latter.M


man v. Harrington, 44 Mich. 183, 6 N.W. 225 (1880);

Newcomb v. Irwin, 55 Mieb. 620, 22 NW, 66 (1885);

Minnesota: Witt V. St. Paul & N. P. fly., 38 Minn.

122, 35 NW. 862 (1888); Missouri: Richardson v.

Murrill, 7 Mo. 333 (1842); North Carolina: Myriek

V. Bishop, 8 NC. 485 (1821); Vermont: Ralph v.

Bayley, 11 Vt. 521 (1539); Hall v, Chaffee, 13 Vt.

150 (1841); Langdon v. Templeton, 66 Vt. 173, 28

AtI. 866 (1894); Wisconsin: Newton v. Marshall, 62

Wis. 8, 21 NW. 803 (1884); Stahl v. Grover, 80 Wis.

650, 50 N.W. 589 (1891).


4~. Graham v. Peat, 1 East 244, 102 Eng.Rep. 95 (1801).
~°‘ English: Harper v. Charlesworth, 4 Barn. & C.

574, 107 Eng.Rep. 1174 (1825); Illinois: Wincher v.

Shrewsbury, 2 Scam. (Ill.) 283, 35 Am.Dee. 108

(1840); Nebraska: Keith v. Tilford, 12 Neb. 271

(1882).
~ 2 RolIe, Abridgment 551 (London 1668). See, also, the following eases: English: Geary v. Barecroft, Sid. 347, 8.2 Engsep. 1148 (1666); Maryland: Dor­sey v. Eagle, 7 Gill & J. (Md.) 321 (1835); Michigan:

Lorman v. Benson, 8 Mich. 18, 77 AmDec. 435 (1860); New Jersey: Van Doren cc Everitt, 5 NJ.L. 460, 8 Am.Dee. 615 (1819) Pennsylvania: Stulta v. Dickey, 5 Bin. (Pa.) 285, 6 Am.Dee. 411 (1812).


52. 2 bile, Abridgment 551 (London 1668). 8cc, also,

the following eases: English; Geary v. Barecroft,

SId. 347, 82 Eng.Rep. 1148 (1866); Michigan:

O’Brien v. Cavannugh, 61 Mid-i. 368, 28 NW. 127

(1886); Wisconsin: Gunsolus v. Dormer, 54 Wis.

630, 12 N.W. 62 (1882).


5~’ 2 Rolle, Abridgmont 551 (London 1668); Geary V. Barecroft, Sid. 347, 82 Eng.Itep. 1148 (1660); Gra­ham v. Peat, 1 East 245, note a, 102 EngRep. 95 (1501); Heydon & Smith’s Case, 23 Coke 69, 77 Bag. Rep. 1476 (1610).
5~. English: Anonymous, ii Mod. 209, 88 Zng.Rep

994 (1709); Llford’s Case, 11 Coke 48, 77 Eng.Rep.

1208 (1614); Maine: Bryant V. Sparrow, 62 Me. 546

(1873); Massachusetts: Dickinson v. Goodspeed. S

Cush. (Mass.) 119 (1851); Virginia: Faulkner v. Al-

demon, Gilmer (Va.) 221 (1821).

162

Ch. 7

Sec. SO



ACTION OF TRESPASS

163

Where the plaintiff was not in actual pos­session, whether the property was real or personal, but relies upon a constructive pos­session to maintain his action, title becomes very material, He must allege such a Title as thaws to it the constructive possession.



He must at least show a right to immediate possession and the absence of adverse pos­session}~
Where the Property or Right injured is in­tangible
WHERE the property or right injured is intangible, that is, not involving possession, the injury can never be considered as Tres­pass, but the remedy must be by an Action on the Case.5° Trespass will not lie, for in­stance, for obstructing a private right of way, where the oVmer of the right does not own or possess the way itself.57 Nor will it lie for ob­structing a public highway,58 or a navigable
But, if a tenancy at will had been terminated by no. tlce, and the tenant had merely remained in posses­sion, he cannot maintain the action against his landlord. Meader v. Stone, 7 Mete (Mass.) 147 (1843); Curl V. Lowell, 19 Pick. (Mass.) 25 (1837).
It has generally been held that a tenant at sufferance

cannot maintain the ad-ion against his landlord.

Massachusetts: Sampson V. Henry, 13 Pick. (Mass.)

36 (1532); Meader V. Stone, 7 Mete. (Mass.) 147

(1843); New York: Wilde V. Cantillon, 1 Johns. (N.

Y.) 123 (1800); Hyatt V. Wood, 4 Johns. (N.Y.) 150,

4 Am.Dec. 258 (1809); Pennsylvania: Overdeer v.

Lewis, I Watts & S. (Pa.) 90, 37 Am.Dec, 440 (1841).


55. Alabama: Gillespie v. Dew, 1 Stew. (Ala.) 229,

18 Am.Dec. 42 (1827); Illinois: Cairo & St. L. H. Co. ‘cc Woosley, 85 Ill. 370 (1ST?).


56. Union Petroleum Co. V. Bliven Petroleum Co., 72 Pa. 173 (1872).
57. New York: Lansing v. Wiswall, 5 Denio (N.Y.)

213 (1848); Lambert -cc Hoke, 14 Johns. (N.Y.) 383

(1817); PennsylVania: Dietrich cc Berk, 24 Pa. 470

(1855); Jones v. Park, 10 Phila. (Pa.) 165, 31 Leg.

Tnt. 372 (2874); Okeson v. Patterson, 29 Pa. 22

(1857).
SB. English: Greasly V. Codling, 2 Blng 263, 130 Eng. Rep. 307 (1824); Illinois: City of Pekin V. Breretori, 67 111. 477, 16 Am.St.Rep. 629 (1873); New York:

Lansing V. Wiswall, 5 Denlo (N.Y.) 213 (1848).

river,59 causing Special Damage to an indi­Vidual; or for interference with any other mere easement, as by obstructing light and air through ancient windows by an erection on the adjoining land.6° Case and not Tres­pass is the remedy for diversion of or other injury to a water course, or body of water, where the plaintiff is not the owner of the soil, but is merely entitled to the use of wa­ter.6


Where the injury is to corporeal property, an Action of Trespass is the proper remedy, notwithstanding the fact that the property was the means by which an incorporeal right was enjoyed. Thus, destruction of a dam is a trespass, although the dam is the means by which a franchise granted by the legisla­ture is exercised.~
Stating the Right of the Plaintiff

IN Trespass to Lands or Goods, it is nec­essary to describe the property affected, whether real or personal, and to show the plaintiff’s Right, Title, Interest or Posses­sion, Thus, the Declaration must allege the property to be the plaintiff’s, or at least in the plaintiff’s possession. It is sufficient to plead ownership, and under that pleading any evidence showing sufficient right and in­terest to maintain Trespass is enough. Pos­session alone is all that needs to be proved. It will be sufficient to prove Actual Posses­sion without any Title, or Actual Posses­sion Coupled with Title, or Title Coupled with


89. English: Bose v. Miles, 4 Maule & ~. 101, 105 Lag. Rep. 773 (1815); Michigan: Bellant v. Brown, 78 Mich. 294, 44 NW. 329 (1880).
60. English: Shacicrell v. jluteJiin$on, 2 Barn. & Ado].

97, 109 Eng.llep. 1079 (1831); New York: Blunt v. McCormick, 3 Denfo (N.Y.) 283 (1846). But com­pare Traugei- v. Sassaman, 14 Pa. 514 (1850); Hart V. Hill, 1 Whart. (Pa.) 124 (1835).


6*. English: Williams V. Morland, 2 Barn. & C. 910,

107 Eng.Rep. 620 (1824); Illinois: Ottawa Gaslight

& Coke Co. V. Thompson, 39 RI. 598 (1864); Penn­sylvanIa: Lindeman V. Lindsey, 69 Pa. 93, 8 Am.Rep.

219 (1571).


6L Wilson V. Smith, 10 Wend. (N.Y.) 324 (1833).

164

OFFENSIVE PLEADINGS

Ch. 7


a Right of Immediate Possession. It is suff 1-cient to ‘say that the goods were the goods “of the plaintiff” or “that he was lawfully possessed of them as of his own property.” 63 It is sometimes said that constructive posses­sion is sufficient. By constructive posses­sion is meant that a person entitled to pos­session is treated as if he had actual posses­sion, and is given the rights and remedies of a possessor.
DECLARATION IN TRESPASS—ESSENTIAL

ALLEGATIONS~ (3) THE DEFENDANT’S

WRONGFUL ACT



81. The Wrongful Act must be a direct ap­plication of force, however slight, something that might cause a breach of the peace. The injury must be immediate and not merely con­sequential upon the defendant’s act. Trespass lies for an mmediate and forcible injury to person or property by an intentional or negli­gent act.

Trespass will not lie for Malicious Prosecu­tion, nor for acts done under Authority of Process Regularly Issued.

Trespass will lie for Abuse of Authority of Law, making the wrongdoer a Trespasser Ab Initio.

The Declaration must state the wrong or in­jury violating the plaintiff’s right, and must on the face of it show a Trespass; that is, an injury committed with Force, Actual or Im­plied, and an injury that was Direct and Im­mediate upon the defendant’s Act, and not merely Consequential.
The Elements of Force

FORCE is either actual or implied. An Assault and Battery,6’ tearing down a fence and entering upon land, or breaking into a house,°6 or carrying away goods,56 are exam-
63, Rocker V. Perkins, 6 Mackey (D.C.) 379 (1888), in which It was held sufficient to allege ownership in trespass for Injury to a colt.

64. English: Scott v. Shepherd, 3 Wile. 403, 95 Eng. Rep. 1124 (1773); New Hampshire: tUcker V. Free­man, 50 N.H. 420, 9 .Am.Rep. 267 (1870); PennsylVa­iila: Hurst v. Carlisle, 3 Pen. & W. (Pa.) 176 (1831).

66. Guille V. Swan, 13 Johns. (N.Y.) 381, 10 Am.Dee.

234 (1822).



66. English: Fouldes V. WIlloughby, 8 Mecs. & W. 544,

151 Bng.Rep. 1170 (1841); Pennsylvania: Brown V.

ples of actual force; and in these cases there is no difficulty in determining that Trespass is the proper remedy for the immediate in­jury resulting from the wrong, if, of course, in the case of the injury to property, real or personal, the plaintiff was in actual or con­structive possession.
Force is implied in every Trespass quare clausum fregit. If a man goes upon anoth­er’s land without right, however peaceably or thoughtlessly, the law will imply force, and trespass will lie.67 And the same is true if a man’s cattle are driven or stray upon another’s land and cause thjury,~
Force is also implied in every false impris­onment, and Trespass will lie therefor, though there may have been no actual vio­Stackhouse, 155 Pa. 582, 26 AtI. 660, 35 Am. StRep.

908 (1893).


In order to maintain trespass for an injury to personal property, it is not necessary that the property shall have been carried away or converted by the wrong­doer. Any forcible and immediate injury to it is sufficient. Fouldes v. Willoughby, 8 Mees. & W. 544, 151 Eng.Rep. 1170 (1841); Connah V. Hale, 23 \Vend. (N.Y.) 462 (1840).
67. English: Green v, Goddard, 2 Salk. 641, 91 Eng.
Rep. 540 (1702); Weaver v, Bush, S T.R. 78, 101 Eng.

Rep. 1278 (1798); Mason v. Keeling, 12 Mod. 335, 88

Eng.Rep. 1361 (1099); Massachusetts: Daniels v.

Pond, 21 Pick. (Mass,) 369, 32 Am.Dec. 269 (1838);

New York: Guille v, Swan, 19 Johns. (N.Y.) 381, 10

Am.Dee. 234 (1822).


58. Dolph v. Penis, 7 Watts & S. (Pa.) 307, 42 Am. Dec. 246 (1844).
If a person’s cattle stray upon another’s land,, and cause Injury, trespass lies, and ordinarily it is the only proper form of action; though, as we shall see, If they got out because of their owner’s neglect to repair a fence which he was under a duty to re­pair, the injured party may treat thIs neglect as his cause of action, and bring an action on the case for the consequential Injury. Or, he may, instead of suing in case, treat the trespass as his cause of ac­tion, and maintain trespass. See the following cas­es: English: Star v. Rookesby, 1 Salk. 335, 91 Eng. Rep. 295 (1711); Mason v. ‘Keeling, 12 Mod. 335, 88 Eng.Rep. 1361 (1699); Iowa: Erbes V. Wehmeyer, 61) Iowa 85, 28 NW. 447 (1886); Maine: Decker v. Gammon, 44 Mc. 322, 61) Am.Dec. 99 (1857); New

York: Wells v. Howell, 19 Johns. (N.Y.) 385 (1822).

Sec. 81

ACTION OF TRESPASS

165

knee, nor even a touching of the person im­prisoned.69


If a man’s wife, daughter or servant is as­saulted, beaten or imprisoned, there is a for­cible injury to the man’s relative rights, for which he may maintain Trespass.’° Where a wife, daughter, or servant is enticed away, or seduced or debauched, even with her or his consent, the law implies force, and the husband, father, or master may maintain Trespass against the wrongdoer.”
Generally, a mere nonfeasance cannot sup­port an action of Trespass, for in the ab­sence of an act there can be no force.’2 Tres­pass, therefore, will not lie for the mere de­tention of goods, where there has been no unlawful taking; ‘~ nor for neglect to repair the bank of a stream, whereby another’s land was overflowed; ‘~ nor for neglect to repair
69. Emmett V. Lyne, 1 Bos. & P. ~N.R.) 255, 127 Eng. Rep. 459 (1805).
70. On the right of a master to sue another in case for causing the death of his servant, and on the history of trespass and case, see Admiralty Com’rs V. The Amerika, 119171 A.C. 38, 44, 56.
71. English: Chamberlain v. Hazlewood, 5 Mees, & W.

515, 131 Bng.Rep. 218 (1839); Thtcham V. Bond, 2

Maule & S. 436, 105 Eng.Rep. 443 (1814); Macfad-

Zen V. Olivant, 6 East 387, 102 Eng.Rep. 1335 (1805);

Weedon V. Tlmbrell, 5 TS. 361, 101 Eng.Rep. 201

(1793); Tullidge v. Wade, 3 Wils. 18, 95 Eng.ltep.

909 (1769); New York: .&kerley v. Raines, 2 Caines

(N.Y.) 292 (1805); Vermont: Hubbell v. Wheeler, 2

Aikens (Vt.) 359 (1827).
As we shall see under Chapter 8, Trespass on the Case, he may regard the Injury (loss of comfort or services) as consequential, and sue in case, at his election.
IZ. 1 Chitty, A Treatise on Pleading nnd Parties to

Actions, with Precedents and Forms. e. II, Of the

Forms of Action 141 (16th Am. ed. by Perkins,

Springfield 1876); Six Carpenters’ Case, S Coke

146a, 77 Eng.Rep. 695 (1610); Turner v. Hawkins,

1 Bos. & P. 470, 126 Eng.Rep. 1018 (1796).


3. Wilbrahnni v. Snow, 2 Wms.Saund. 47, notes (Is) (1), 85 Eng.Rep. ‘624, at 628 (1670).
11. 1 Chitty, A treatise on Pleading and Parties to

Actions, wIth Precedents and Forms, c. II, Of the

Forms of Action 141 (16th Am. ed. by Perkins,

Springfield 1876); RInks V. Rinks, 46 Me. 423

(1859).

a fence, whereby another’s animal escaped onto the land of the person so negligent or elsewhere, and was injured.’5


As a rule, a master is not liable in Trespass for injuries caused by the negligence or want of skill of his servant, or by his unauthor­ized act; but must be sued in Case, if at all, even though the servant might be liable in Trespass.’6 If the injury occurs, however, as the natural and probable consequence of an act of the servant ordered expressly or impliedly by the master, and the act was forcible, and the injury immediate, Trespass will lie against the master,”
The In jury as Immediate

TO sustain Trespass the injury must have been immediate, and not merely consequen­


75. English: Star v. Itookesby, I Salk. 335, 91 tag.

Rep. 295 (1711); Booth v. Wilson, I Earn. & Aid. 59,

106 Eng,Rep. 22 (1817); Powell v. Salisbury, 2

Young & J. 391, 148 Eng.Rep. 970 (1828); Illinois:

Burke v, flaky, 32 Ill.App. 326 (1889); Vermont:

Saxton v. Bacon, 31 vt. 540 (1859).


76. English: 3leManus v. Crickett, 1 East 108, 102

Eng.Rep. 44 (1800) -, Moreton v. Hardern, 4 Barn. &

C. 223, 107 Eng.Rep, 1042 (1825); Connecticut: Hav­ens v. Hartford & N. H: II. Co., 28 Con”. 69 (1859):

Kentucky: Johnson v. Castleman, 2 Dana (Ky.) 373

(1834); Massachusetts: Barnes v. Hurd, 11 Mass.

57 (1814); New York: Broughton v. Whallon, S

Wend. (N.Y.) 474 (1832); Wright -cc Wilcox, 19

Wend. (N.Y.) 343, 32 Am.Dee. 507 (1838).


77. English: Gregory v. Piper, 9 Barn. & C. 591, 109

Bng.ltep. 220 (1829); Illinois: Arasmith v. Temple,

11 Ill.App. 39 (1882); Massachusetts: Grinnell v.

Phillips, 1 Mass. 530 (1805); Howe V. Newmarch, 12

Alien (Mass,) 49 (1866); Campbell v. Phelps, 1?

Mass. 244 (1821); Mississippi: Me~oy v. MeKowen,

28 Miss. 487, 59 Am,Dee. 264 (1853); Pennsylvanial

Yerger V. Warren, 31 Pa. 319 (1858).


In Gregory V. Piper, supra, a master had ordered his servant to lay some rubbish near his neighbor’s wall, but so that it might not touch the same, and

the servant used ordinary care, but some of the rub­bish naturally fell against the wafl, and It was held that trespass could be maintained against tbe mas­ter.

Iii Stroll v. Levan, 39 Pa. 177, It was held that tres-~ pass lies against an owner of a Vehicle, for a col­lision, who Is riding in It at the time, though driv­en by a servant, If the Injury was the result of neg­llgence.

166

OFFENSIVE PLEADINGS

Cli. 7

tial. For consequential injuries, even though there may have been force, the remedy is by Action on the Case, and not Trespass’s


If a person, in the act of throwing a log into the highway hits and injures a passer­by, the injury is immediate upon the wrong­ful act, and Trespass will lie; but, If after a log has been wrongfully thrown into the highway, a passer-by f ails over it, Trespass will not ~ So if a steam roller were driv­en over a person this would be a clear Tres­pass, but if it were negligently left in the highway and a collision with a team or auto­mobile resulted in the darkness, this would be a consequential injury.
To constitute an immediate injury com­mitted with force, it is not necessary that

the wrongdoer shall have intended to apply the force in the manner in which it caused the injury. If a man puts in motion a force, the natural and probable tendency of which is to cause an injury, he is regarded in law as having forcible and directly caused that injury.80 11’, for instance, a person lays rub­bish so near another’s wall that, as a natural consequence, some of it rolls against the wall, the injury is forcible and immediate, and the remedy is in Trespass.8’ And where the defendant had ascended iii a balloon, which descended a short distance from the place of ascent into the plaintiff’s garden, and the defendant, being entangled and in a
78. Massachusetts: Adams v. Hemmenwny, I Mass.

145 (1804); Michigan: Barry v. Peterson, 48 Mick

283, 12 NW. 181 (1882).
79- Lenine v. Bray, 3 East 593, 102 Eng.Bep. 724 (1808).
Case, not trespass, is the remedy to recover for injury to a vehicle from stone deposited in the highway. Green v, BeLts, 34 Micb. 512 (1876).

80. Leame cc Bray, 3 East 593, 102 Engflep. 724 (1803).


On negligently setting a fire and burning another’s property, see Jordan v. Wyatt, 4 Unt. (Vs.) iii, 47 Am.Dee. 721) (1847),
$1. Gregory v. Piper, 9 Barn. & 0. 591, 109 Eng.Ilep.
220 (1829).

perilous position, called for help, and a crowd of people broke through the fences into the garden and trampled down the vegetables, it was held that, though ascending in a balloon was not an unlawful act, yet, as the defend­ant’s descent, under the circumstances, would ordinarily and naturally draw the crowd in­to the garden, either from a desire to assist him, or to gratify a curiosity which he had excited, he was answerable in Trespass for all the damage done to the garden.~ And where a person makes an excavation so near his neighbor’s land, that the land, from its own weight and of necessity, falls, Trespass will lie.83 And where a person negligently drives off another’s animal with his own, without endeavoring to ascertain the num­ber of animals he is driving, Trespass is a proper remedy against him.84


So, where a person through negligent and careless driving, though not willfully, causes his vehicle to forcibly strike another vehicle or a person, the person injured need not bring an Action on the Case, though by the weight of authority, such an action is also maintainable, but may sue in Trespass.85
82. CuRie v. Swan, 19 Johns. (N.Y.) 381, 10 Am.Dec.

234 (1822).


83. Bu~kirk v, Strickland, 47 Inch. 389, 11 NW. 210 (1882). But trespass on the ease w’iJl also lie, City of Pekin v. Brereton, 67 Iii, 477, 16 Am.Ilcp. 629 (1873).
84. Brooks v. Olmstead, 17 Pa. 24 (1851),
&~- English: Learns v. Bray, 3 East 593, 102 Eng.Rep.

724 (1803); Turner v. Hawkins, I Bos. & P. 472, 126

Eng.Itep. 1016 (1796); Williams v. Holland, 6 Car. &

P. 23, 172 Eng.Itep. 11129 (1833); Indiana: Sebuet v.

Veeder, 7 Biackf. (md.) 342 (1845); Kentucky:

Payne v. SmIth, 4 Dana (ICy.) 497 (1836); Maine:

Kennard v. Burton, 25 Me. 39, 43 Ani.Dec. 249

(1845); Michigan: Daniels V. Clcgg, 28 Mieb. 32

(1873); Bradford cc Bail, 38 web. 673 (1878); New

Jersey: Post v. Munn, 4 N.J.L. 61, 7 Am.Dec. 570

(1810); New York: Wilson v. Smith, io Wend. (N.

Y.) 324 (1833); McAllister v. Hammond, 6 Cow. (N.

Y.) 342 (1826); Pennsylvania: Strohl V. Levan, 39

Pa. 277 (2861); Vermont: Claflin V. Wilcox, 18 Vt.

605 (1846).
For wilful Injury so caused, trespass is the only rem-

edy.


Sec. 81

ACTION OF TRESPASS

167

The same is true where a collision between vessels is caused by carelessness or unskill­fulness in navigation.80 And, general]y by the weight of authority, where there is an immediate and forcible injury to person or property, attributable to the negligence of another, the party injured may at his elec­tion treat the negligence of the wrongdoer as the cause of action and Declare in Case or consider the act itself as the injury and De­clare in Trespass.” Some of the Courts, however, hold that where the injury from a negligent act is both forcible and immediate, Case will not lie, and that Trespass is the only remedy.~


So, if a wild or vicious beast, or other dan­gerous thing, is turned loose or put in mo­tion, and mischief immediately ensues to the person or property of another, the injury is regarded as immediate and as committed with force, and Trespass is the proper rem­edy.89
The Squib Case

AN illustration of the barren debates as to the distinction between Trespass and Case is found in the oft-cited Squib Case of Scott


86. Connecticut: New Haven Steamboat & Transpor­tation Co. v. Vanderbilt, 16 Conn. 420 (1844) New

York: Percival v. Hiekey, 18 Johns. (NY.) 257, 9

Am.Dee. 210 (1820); Pennsylvania: Simpson v.

Hand, 6 Whart, (Pa.) 311, 30 Am.Dee. 231 (1840).


87. Connecticut: New Haven Steamboat & Transpor­tation Co. v. Vanderbilt, 16 Conn. 420 (1844); Maine:

Kennard cc Burton, 25 Mc. 39, 43 Am.Dee. 249 (1845); New Hampshire: Dalton v. Favour, 3 N.H. 465 (1826); New York: Percival v. Hiekey, 15 Johns. (N.Y.) 257, 9 Am.Dec. 210 (1820); North Carolina:

Baidridge v. AlIen, 24 Nc. 206 (1842); Pennsylva­nia: Simpson v. Hand, 6 Whart. (Pa.) 311, 38 kin, Dec. 231 (1840); Vermont: Claflin v. Wilcox, 18 Vt. 805 (1846).
88. Connecticut: Gates v. Miles, 3 Conn. 64 (1819);

Ohio: Case v. Mark, 2 Ohio 169 (1819), criticized in Claflin v. Wilcox, IS Vt. 605 (1846). See, also, Dan­iels v. Clegg, 28 web. 32 (1873).


Se. Leame y, Bray, 8 East 503, 102 EngRop. 724

(1803); Mason v. KeelIng, 12 Mod. 333, 58 Eng.Rep.

1360 (1699); Beckwitli V. Shordike, 4 Burr. 2092,

98 Eng.Eep. 91 (1767).



v. Shepherd, decided in 1773.90 A lighted squib or bomb had been tossed by the defend­ant into a market house. A bystander, in order to avert the threatened injury from himself, took up the squib and tossed it across the market house. Another person near whom it fell likewise threw it in anoth­er direction, Thereupon the squib exploded and put out the plaintiff’s eye. An Action of Trespass was brought against the defendant who first threw the bomb, and the action was sustained. Sir William Blackstone, who happened to be a Member of the Court, dis­sented, being of the opinion that Case only would lie, as the harm was not the immedi­ate and direct result of the defendant’s act. In this famous case there was no question of liability, but merely of the historical distinc­tion between Forms of Action.
Other Illustrations

IN another case, in which the distinction between immediate and consequential in­jury is considered, the defendant had seized the plaintiff by the arm and swung him via­lently around and let him go, and the plain­tiff, becoming dizzy, had involuntarily pass­ed rapidly in the direction of a third person and came violently in contact with him, whereupon the latter pushed him away, and he came in contact with a hook, and was in­jured. It was held that Trespass was the proper remedy.°’


Where a person beats a drum in the high­way, the natural or probable consequence of which is to frighten the horse of another and cause it to run away, and such a conse­quence results, he is liable in Trespass for the injury. It is immaterial whether the in­
90. Scott v, Shepherd, 2 w.Bl. 892, 96 EngRep. 525

(1773), reported in I Smith, Leading Cases, 797 (8th

Am. ed. by Collins and Arbuthnot, London 1879).

See, also, 3 Street, Foundations of Legal Liability,

e. XVIII, The Action of Trespass on the Case 257

(Northport 11900).


91. Richer v. Freeman, 50 N.H. 420, 9 Am.Rep. 267

(1870).


168

OFFENSIVE PLEADINGS

Cb. 7

jury be willful or negligent, if his act is the immediate cause of it.92


TI a man starts a fire on his own land neg­ligently, which spreads, and, as an immedi­ate consequence, the property of another is destroyed by it, Trespass is a proper remedy for the injury.~ So if a dog is set on plain­tiff’s horses, one of which, while being pur­sued, is injured or killed, this is the direct result of defendant’s act, and Trespass is the proper form.ea
If a person pours water directly upon an­other’s person or land, it is clear that the in­jury is immediate, and that Trespass is the remedy.°5 But if a person stops a water course on his own land, whereby it is pre­vented from flowing as usual, or if he place a spout on his own building, and in conse­quence thereof the water after-wards runs therefrom upon another’s land or house or person, the injury is consequential, and Tres­pass will not lie.
injuries under Color of Legal Proceedings

NICE questions have arisen as to whether Trespass will lie for injuries done to the per­son or property under Color of Legal Process or Proceedings, as in case of wrongful prose­cution of a criminal charge, wrongful ar­rest, or wrongful attachment of goods.


Generally no action at all will lie for an act done under the Judgment or Order of a
S2~ Loubz v. Halner, 12 NC. iSS (1827). See, also, Cole v. Fisher, 11 Mass. 137 (1814).
That trespass only lies for an act which is or tends to a breach of the peace, sec 3 Street, Foundations of Legal Liability, c. XVII, The Action of Trespass 235 {Northport 1906).
t3’ Jordan v. Wyatt, 4 Orat. (Va.) 151, 47 Am.Dcc. 720 (1847).
$4. Illinois: Painter v. Baker, 16 Ill. 103 (1854);

Tennessee: James v, Caldwdll, 7 Yerg. (Tenn.) 35 (1834).


S. Reynolds v. Clerk, 8 Mod. 272, 88 Eng.Rep. 193 (1725),

Court or Magistrate having jurisdiction over the subject matter.°°


When the Court had no Jurisdiction at all over the subject matter, or exceeded its Ju­risdiction, Trespass is the proper form of action against all the parties for any act which, independently of the process, would sustain such an action..°’ If goods have been taken, Trover also will lie.
If the Court had Jurisdiction, but the pro­ceeding or process was irregular and void, Trespass is the proper form of action, and generally Case will not lie.98
00. 1 Chitty. A Treatise on Pleading and Parties to

Actions, with Precedents and Forms, c. II, Of the

Forms of Action 203 (16th Am. ed. by Perkins,

Springfield 1876); Case of the Marshalsea, 110 Coke

76A, n. (a), 77 Eng.Rep. 1038 (1612). See, also the

following cases: English: Perkins v. Proctor, 2

Wils. KB 384, 95 Eng.Rep. 874 (1768); Cave v.

Mountain, 1 Man. & G. 257, 133 EJng.Rep. 330 (1840);

Dicas v. Baron Broughani, I Moody & B. 309, 1174

Eng.Eep. 108 (1833); Pennsylvania: Shoemaker V.

Nesbit, 2 Rawle (Pa.) 201 (1828).
91. 1 Chitty, A Treatise on Pleading and Parties to Actions, with Precedents and Forms, c. II, Of the Forms of Action 204 (10th Am. ed. by Perkins, Springfield 1876); Case of the Marshalsea, 10 Coke 76(a), 77 Eng.Bep. 1038 (1612). See, also, the fol­lowing decisions: English: Perkins t. Proctor, 2 Wils. 382, 95 Eng.Rep. 874 (1768); Branwell v. Pen-neck, 7 Barn. & C. 536, 108 Eng.Ilep. 823 (1827); Dos-

well v. Impey, I Barn. & C. 169, 107 Eng.Rep. 63

(1823); ConnectIcut: Allen v. Cray, 11 Conn. 95

(1836); Illinois: Hull v. Blaisdell, I Scam. (Ill.) 334

(1837); New York: Griswold v. Sedgwick, 6 Cow.

(N.Y.) 456 (1826); Vail v. Lewis, 4 Johns. (N.Y.) 450, 4 Am.Occ. 300 (1809); Adams v. Freeman, 9 Johns. (N.Y.) 117 (1812); Bigelow ‘cc Stearns, 19 Johns. (N. Y.) 39, 10 Am.Dec, 189 (1821); Horton v. Auch­moody, 7 Wend. (N.Y.) 200 (1831); Vennont: Hook­er v. Smith, 19 Vt. 151, 47 Am.Dec. 679 (1847).


9$. English: Parsons v. Leycl, 3 Wils. KB. 341, 95

Eng.Rep. 1089 (1772); Barker ‘v. Brabam, 3 Wils.

376, 95 Eng.Rep. 1108 (1773); Indiana: Barkeloo v.

Randall, 4 Blaekf. (md.) 470, 32 Am.Dec. 46 (1838);

Maine: Guptili v. RIchardson, 62 Me. 257 (1874);

Green cc 3forse, 5 Greenl. (Me.) 291 (1828); Massa­chusetta: Sullivan ‘cc Jones, 2 Gray (Mass.) 570

(1854); Pennsylvania: Maber v. Ashinead, 39 Pa.

344, 72 Am.Dec. 708 (1858); Milliken v. Brown, 10

Serg. & R. (Pa.) 188 (1823).


Trespass is the proper remedy where a court has ju­risdiction over the subject matter, but Is bound to

Sec. SI.


ACTION OF TRESPASS

169

When Process has been misapplied, as where one person has been arrested under a warrant against another, or the goods of one person have been taken under process against another’s goods, Trespass, and not Case, is the remedy.9°


When the Process of a Court has been abused by the officer executing it, as where unnecessary force has been used in making a lawful arrest, or detaining a prisoner, or goods are taken or used improperly under a valid Writ, Trespass is the remedy.’
Trespass will not lie for acts done under Legal Process, such as Writs and Warrants regularly issued by a Court having Jurisdic­tion, however malicious and groundless the institution of the proceedings may have been. Case for Malicious Prosecution is the only remedy for improperly putting in mo­tion the regular Process of the Court.2
adopt certain forms in its proceedings, from which it deviates, thereby rendering the proceeding coram non judiec. English: Cole’s Case, W.Jones 173, 82 Eng.flep. 91; Davison v. Gill, Ii East 64, i02 Eng.Rcp. 25 (1800); Illinois: Outlaw v. Davis, 27 IlL 467 (1801); Kraft v. Porter, 76 lll.App. 328 (1898).
99. English: Sanderson v. Baker, 2 W.BI. 833,06 Eng.

Rep. 490 (1772); cole v. Hindson, U T.R. 234, 101

Eng.Rep. 528 (1795); Illinois: Upton v. Craig, 57 111.

257 (1870); Maine: Foss v. Stewart, 14 Me. 312

(1837); Baldwin v. WhIttier, 1*3 Me. 33 (1839); Par­ker v. Hall, 55 Me. 362 (1868); Lothrop v. Arnold,

25 Me. 136. 43 A,ntDee, 256 (1845); New Hampshire:

Melvin v. Fisher, 8 N.H. 400 (1836); New York:

Griswold v. Sedgwick, 6 Cow. (N.Y.) 450 (1820);

Mead v. flaws, 7 Cow. (~.Y.) 332 (1827).
1. English: Woodgate v. Knatebbull, 2 T.I1. 148, 100

Bng.Rep. 80 (1787); Holroyd v. Breare, 2 Barn. &

AId. 473, 106 Eng.Rep. 439 (1819); Maine: Guptill

v. Richardson, 62 Mc. 257 (1874); Massachusetts:

Melville ‘cc Brown, 15 Mass. 82 (1818); New York:

Vail v. Lewis, 4 Johns. (N.Y.) 450, 4 Am.Dec. 300

(1800).
2. Illinois: Blalock v. Randall, 76 111. 224 (1875);

Johnson v, Von Kettler, 84 111. 315, 318 (1876); Ken­tucky: Owens v. Starr, 2 LItL (ICy.) 234 (1822);

Maine: Plummer v, Dennett, 6 Creenl. (Mo.) 421, 20

Am.Dec. 316 (1830); New York: Beaty v. Perkins,

6 Wend. (NY.) 382 (1831); Savacool v. Boughton, 5

Wend. (N.Y.) 170, 21 .A1m.Dec. 181 (1830); Rhode



Trespass ab Initio

A PERSON may lawfully obtain posses­sion of property under the process of a Court, or authority of a statute, or other­wise under authority of law, yet if he abuses his authority by dealing with the property in an unauthorized manner, he may become a Trespasser ab initio.~


“When an entry, authority, or license is given to any one by the law, and he doth abuse it, he shall be a Trespasser ab iniUo; but where an entry, authority, or license is given by the party, and he abuses it, then he must be punished for his abuse, but shall not be a Trespasser ab initio.”
An officer who enters a house by authority of law, and attaches goods therein, becomes a Trespasser ab initia by placing there an unfit person as keeper of the goods, against the remonstrance of the owner of the house.5 And the same is true where an officer has made a lawful levy on goods, but sells with­out giving the notice required by law.6
Island: I-Jolil,s v. Roy. 18 11.1. 84, 25 AtI. 091 11892);

South Carolina: Miller v. Once, 1 Rich. (8.0.) 147

(1844); Vermont: Cliurchili v. Churchill, 12 Vt. 661

(1839).
3. Massachusetts: Malcolm v. Spoor, 12 Mete. (Mass.)

270, 46 Am.Dee. 673 (1839); Smith v. Gates, 21 Pick.

(Mass.) 55 (1838); New Hampshire: Taylor v. Jones,

42 NIl. 25 (1860); Drew v. Spaulding, 45 N.H. 472

(1864); New York: Van Brunt v. Schenck, 13 Johns.

(N.Y.) 414 (1810).
4. English: Six Carpenter’s Case, S Coke 146

(a), 77 Eng.Rep. 095 (1610); Alabama: Louisville &

Nil. Co. v. Bartce, 204 Ala. 539, 88 So, 304, 12 AL.

U. 254 (1021); Illinois: Page v. DePuy, 40 III. 506

(1866).
8. Malcolm v, Spoor, 12 Mete (Mass.) 279, 46 Am.Dee.

675 (1847).


6. Carrier v. Esbaugli, 70 Pa. 239 (1871).
And an officer who levies under a lawful exeeutiom, but refuses to permit the debtor to select and have appraised to him the amount of property exempt by law, becomes a trespasser ab initio. Wilson v. Ellis, 28 Pa.St.lltep. 238 (1857): Freeman v. smith, so Pa. St.Rep. 264 (1858).
Moreover, a landlord who lawfully distraln5 goods. but sells without a previous appraisement and ad-

170

OFFENSIVE PLEADINGS

Ch. 7

Trespass will also lie where a battery or imprisonment was in the first instance law­ful, but the party, by an unnecessary degree of violence, became a Trespasser ab initio.’


DECLARATION IN TRESPASS—ESSENTLAL

ALLEGATIONS: (4) THE DAMAGES
82. The Declaration must also Allege the Damages which are the legal and natural con­sequences of the injury.

!Fhe form of statement must be according to their nature, as General or Special.
AS the main object of the Action of Tres­pass is the recovery of damages, the Decla­ration should contain an Allegation of the Damage sustained, and the amount must be Jaid high enough to cover the actual demand. While the Trespass may, in many instances, be a mere technical infringement of anoth­er’s right, it always gives the right to recov­er at least Nominal Damages, but in order to recover Substantial Damages, they must be pleaded. They will be Generally or Par­ticularly stated, according as they are Gen­eral or Special. “General Damages are such as the law presumes to have accrued from the wrong complained of. Special Damages are such as the party actually sustained, and are not implied by law. 1 Chitty on Plead­ings, 385. Such Damages as may be pre­sumed necessarily to result from the breach of contract, need not be stated in the .Dec­laratlon. The Jaw always presumes some damages to result from a breach of contract, and therefore Special Damages need not be alleged. But where the plaintiff expects to recover Special Damages, he must state them Specially and Circumstantially in order to apprise the defendant of the facts intended to be proven, or he will not be permitted to give evidence of such Damages on the Trial.
vertisement, is also a trespasser ab initio. Kerr v. Sharp, 14 Berg. & U. (Pa.) 399 (1826).
1. Connecticut: Pease v. Burt, S Day (Conn.) 485

(1800); Kentucky: Boles v. Pinkerton, 7 Dana (Ky.)

453 (1838); Massachusetts: Hannen v, Edes, 15

Mans. 347 (1819); New York: Bennett v. Appleton,

25 Wend. (N.Y.) 371 (1841).

1 Chitty, 332. The general rule is, that it is sufficient to assign the Breach in the words of the contract. Id. 326. An omission to set forth any Special Damage may deprive the plaintiff of the benefit of testimony, to which he would otherwise have been entitled; but it is not a good ground in Arrest of Judg­ment, except in cases where the special in­jury is the gist of action; as in Action of Slander for words not in themselves action­able. In such cases, unless the Special Dam­age is set forth, there appears no cause of action on the face of the Declaration.” M’Daniel., Admr. v. Terrdll, 1 Nott & McC. (S.C.) 343 (1818).


STATUS UNDER MODERN COnES, PRACTICE ACTS AND RULES

OF COURT

83. Although the Codes provided for the abolition of the distinctions between the various Common Law Actions, with respect to Tres­pass, and Case, it has generally been held that such provision merely abolished the Formal differences between the actions, with the Sub­stantive differences remaining.
AS previously observed, one effect of the New York Code of Procedure in 1848 was ostensibly to abolish the Common Law Forms of Action, and the distinctions be­tween the same, But the reform was not as sweeping as the language indicated. There was to be but one form of civil action in the Courts of Common Law, which was to be called an “Action at Law.” In plain English, the various statutes of this character, in the various states adopting the New York Code, provided for a single, formless form of ac­tion, in the nature of a Special Action on the Case. But in Goulet v. Asseler,8 Selden J. flatly declared that the more formal dif­ferences between such actions had been abol­ished, but that the substantive differences remained as at Common Law. It was, he said, impossible to make an action for a direct aggression upon the plaintiff’s rights by talc-

8. 22 N.Y. 225 (1860).

Sec. 83

ACTION OF TRESPASS



171

ing and disposing of his property—for which a remedy at Common Law was Trespass de bonis asportatis—the same thing as an action to recover for the consequential in­jury resulting from an improper interfer­ence with the property of another, such as an injury to a reversionary interest—and for which the remedy at Common Law was Tres­pass on the Case.°


In the period of Reform in the Non-Code States—between 1848 and 1938—several States, like Illinois and Maine, enacted stat­utes which merely provided for the aboli­tion of the distinctions between the Ac­tions of Trespass and Trespass on the Case. In discussing the effect of such statutes, in St. Louis, Vandolia and Terre Haute It. It. Co. v. The Town of Summit)’° Baker 3, stat­ed: “‘The statute does away with the tech­nical distinction between the two Forms of Action, but does not affect the substantial rights and liabilities of parties, so as to op­erate to give any other remedy for acts done than before existed.’ We understand the statute to accomplish these objects and these only; to abolish the technical distinction be­tween the Two Forms of Action so that you may join Counts in Trespass with Counts in
0- In accord: Lawry V. Lawry, 58 Me. 482, 4S~, .~4 A.

273, 274 (1896), in which the plaintiff brought Tres­pass quare clausu,n fre~it for cutting standing trees on a lot of land which the plaintiff owned in re­njalnder, the widow of his father having a life es­tate therein as her dower. Undei- a Maine Statute which abolished the distinction between the Ac­tions of Trespass and Trespass on the Case, the Issue was whether the plaintiff, whose interest was only that of a remainder-man, could maintain Tres­pass. In holding that the plaintiff cook? not main­tab, the Action in the Form of Trespass and could not be allowed to Amend so as to change the Form of Action, Foster J., declared: “The Amendment changing the Declaration to Case ought not to be allowed. True, the Statute has abolished the 11s-tinetion between [the] Actions of Trespass and Trespass on the Case, But this relates to the dis­tinetlan in Form only. In cases where the distinc­tion Is really of Substance, rather than of Form, the Statute is inapplicable?’


10. 3 fll.App. ~55, 160 (1878).

Case, and may call your Action Trespass or Case—it is wholly immaterial which—and may sue out your Writ in either Form of Action, and may then Count in either Tres­pass or Case, or both, at your option. But your Count, if in Case, must contain the ele­ments df a good Count in Case, or if in Tres­pass, must contain the elements of a Count in Trespass. The change goes only to the matter of the Form of Action, and does not change Substantial Rights and Liabilities. Nor do we understand that this statute re­peals that old and more than well settled principle, that in all Actions the Proofs must correspond with the Allegations. Where a Declaration is filed showing a good cause of action in either Trespass or Case, it is whol­ly immaterial whether you call your action Trespass or Case, but such facts must be al­leged as show a Legal Cause of Action in the one Form or the other, and the facts that are alleged in the pleading must be support­ed by the proofs. If the Declaration is in Trespass quare clau.sum fregit, then there must be a possession in order to support it— either actual, or in case the premises are vacant and unoccupied, a constructive pos­session that follows Ownership and Title.”


ILLINOIS REV. ST. c. 110,
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