note.

It is a reasonable conjecture that, where there was no recaption of the stolen goods, the earlier mode of redress and restitution was through this appeal of felony, and that trespass for such purpose was an after invention. See note on Conversion, post.

Trespass for goods taken and carried away was, however, a well-recognized action in the time of Edward 1, as appears from a record given in Ryley's Pleadings of Parliament, p. 125. This record contains a full recital of the proceedings in a case of this kind, from the writ to the award of the venire. It will also be found in 2 Reeves's Hist. 160, 161, Finl ed.

As in the case of injuries to lands, trespass for damage done to goods grew in frequency and in extent of application in subsequent reigns, and became one of the most common actions. Its history, however, presents little of peculiarity or interest, and it need not be further pursued.

The following are some of the old writs of trespass to goods: "The king, &c. If W. of S., master of the hospital of St. Michael of C., shall make you secure, &c., then put, &c., wherefore with force and arms he took and carried away the goods and chattels of the aforesaid hospital, to the value of one hundred shillings, found at R." &c. Fitzh. Nat. Brev. 89 G. If the chattel were a living thing, the allegation was cepit et abduxit, and not asportavit.

For wrongfully distraining and impounding beasts the writ ran thus: "Wherefore with force and arms he took the beasts of him the said A., at N., in your county, and chased them from that county into the county of

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The following writ lay for distraining a man by his beasts of the plough, or by his sheep: Wherefore, seeing that it is appointed for the common profit of our realm that no man of the same realm may be distrained by the beasts of his plough, or by his sheep, for our or another's debt, or on another occasion whatsoever, by our or another's bailiffs or ministers, so long as he hath other beasts by which reasonable distress may be made upon him for levying those debts, except only those beasts which being found doing damage to any one shall happen to be impounded according to the law and custom of our realm; the aforesaid W. took and impounded the sheep of the aforesaid A., at N., or the beasts of him the said A., of his plough, at N., against the form of the statute aforesaid, and yet detains them there impounded against the law and custom, &c., and against the peace, &c. And have, &c. And in the mean time cause those beasts to be delivered to him, the said A." &c. "And so note," says Fitzherbert, p. 90, “* that in this writ of trespass the sheriff shall make deliverance unto the party, as he shall do upon a replevin; and if the party hath the beasts delivered unto him before the writ sued, then this clause, 'cause those beasts in the mean time to be delivered to him the said A.,' shall not be in the writ."

For chasing sheep with dogs the writ was thus: "Wherefore with force and arms he chased one hundred sheep of him the said A., found at T., with certain dogs, inciting those dogs to bite the sheep aforesaid, insomuch that by the chasing and biting of the dogs aforesaid the said sheep were greatly injured,

and a great part of them cast their young, and made an assault upon T., his servant there, &c., by which," &c. Ib. To this there is the following note: "If my dog kills your sheep, and I freshly after the fact tender you the dog, you are without remedy. 7 Edw. 3, Barr. 290." See note on Dangerous Animals.

As to trespass in general, accessaries were not liable in the time of Britton (1 Nich. Brit. 130); but in the time of Edward 3, the rule prevailing in modern times was laid down, that there were no accessaries in trespass, all being principals. And it was held that, if a person assented to a trespass, after its commission, he was liable to the action. Edw. 3, p. 18.

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Previous to the passage of the St. of Westm. 2, c. 24 (13 Edw. 1), the writs of trespass in use were inadequate to many of the injuries to property; and one of the results of that statute was to remedy this defect. The writ of assize, as we have seen, was extended by the St. of Gloucester so as to give a right of recovery against alienees of the wrong-doer; but that act, as the term "assize" implies, was limited to certain cases of injuries to land, and other legislation was desired.

The St. of Westm. 2 was general, and provided that where a writ existed in one case and a thing happened in consimili casu, and needing a similar remedy, a writ should be made accordingly. A writ of nuisance against an alienee of the wrong-doer was given as an instance; the writ having previously lain only against the wrong-doer himself. Hence arose actions on the case; and though the examples given in the statute are of actions for injuries to land, the act was considered as extending to all classes of wrongs, and actions greatly multiplied under it.

Under this act reversioners now found a remedy for injuries to the inheritance committed by strangers, while before, the only writ which was in use was the writ of waste, which was directed against the tenant only. So, in the case of chattels which were in the possession of another, the owner now had an adequate mode of redress for injuries done by third persons. And so of all other infractions of legal rights to the damage of a man, for which there had previously

been no writ.

In

In theory, a man's right of property (as well as other legal rights) was now secure, whether he was in possession or not, provided the injury extended to him. But how greatly the benefits of the statute were frittered away in endless and fruitless refinements as to the precise difference between the old writs and the new is too fresh in the memory of living lawyers to need comment. some parts of this country, indeed, it has not yet become a memory: Winkler v. Meister, 40 Ill. 349 (1866); Powers v. Wheeler, 63 Ill. 29 (1872); for which there is far less excuse than there was when the difference between the use or omission of the words vi et armis might involve the right to a capias or a wager of law. (The process of capias did not issue in trespass on the case; and the defendant might wage his law under this class of writs, which he could not do in trespass vi et armis. 2 Reeves's Hist. 397, Finl. ed.)

In the remainder of this note, discarding the nearly obsolete distinctions between trespass and case, so far as they relate to the mere form of action, we propose to consider the circumstances under which a right of action, whether in trespass or case, may now be maintained for such injuries to property as are not the result of negligence; of

Possession and Property. (a.) Possession as to Wrong-doers. — The doctrine of the principal case, Cutts v. Spring, that possession is in general sufficient foundation for an action for an interference with one's enjoyment of property against all persons except the rightful owner, is abundantly sustained by the authorities. Asher v. Whitlock, Law R. 1 Q. B. 1; Graham v. Peat, 1 East, 244; Demick v. Chapman, 11 Johns. 132; Cook v. Howard, 13 Johns. 276; Burrows v. Stoddard, 3 Conn. 160, 431; Outcalt v. Durling, 1 Dutch. 443; Brown v. Manter, 22 N. H. 468; Barnstable v. Thacher, 3 Met. 239; Slater v. Rawson, 6 Met. 439; Townsend v. Kerns, 2 Watts, 180; ante, 349.

And these cases show that the rule is the same whether the property be real or personal.

This point is illustrated in those cases beginning with Trevelian v. Pyne, 1 Salk. 107, and Chambers v. Donaldson, 11 East, 65; in the latter of which it was held that in trespass upon land the justification of a command from the owner is traversable. Mr. Smith says that long after the decision in Trevelian v. Pyne (which was replevin for cattle) it was still thought, in accordance with the opinion expressed in that case, that in trespass quare clausum fregit, if the defendant justified under the command of A., in whom he alleged the freehold to be, the plaintiff could not in his replication traverse the command, because that would admit the freehold to be in A.; and, if the freehold were in A., the plaintiff ought not to have the action. 1 Smith's L. C. 471. But the law was settled otherwise in Chambers v. Donaldson. In that case, which was trespass quare clausum, the defendant

freehold of P., and that by his command they broke and entered. The plaintiff traversed the command, and, on demurrer, the plea was held traversable; the ground taken being that otherwise a mere wrong-doer could interfere with another's possession, and by justifying under the owner save himself harmless; and this was not to be allowed, though the plaintiff in possession himself had no title as against the owner. See Finch v. Alston, 2 Stewt. & P. 83. But the cases above cited show that it is no defence to show title in a stranger; and the same is equally true in trespass de bonis asportatis. Cooke v. Howard, 13 Johns. 276, 284. The defendant must go further, and show that the act complained of was done under the authority of the owner.

If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and the question is which of the two is in actual possession, the answer is that the person who has the title is in actual possession, and the other person is a trespasser. Maule, J., in Jones v. Chapman, 2 Ex. 803. See also Barr v. Gratz, 4 Wheat. 213; Anonymous, 1 Salk. 246; Butcher v. Butcher, 7 Barn. & C. 399; Codman v. Winslow, 10 Mass. 146; Brimmer v. Proprietors of Long Wharf, 5 Pick. 131; Hunting v. Russell, 2 Cush. 145. And if neither had title, it would seem, upon the principles already stated, that the one who first entered, if his possession were continuous, would be entitled to the possession as against the other. But quære, if the one who first entered had been actually evicted by the other, could he maintain an action for trespass committed subsequently by the latter?

Upon this subject see Barnstable v. Thacher, 3 Met. 239. In that case the plaintiff's had taken possession of a tract of unenclosed cranberry land, to which they had no title, forbidding all persons, by public notice, to take cranberries therefrom, except on certain prescribed terms, with which most persons had complied for several years. Before the plaintiffs took possession, one Hallett had claimed a right in the land, though he could show no title, and had been accustomed to take cranberries growing thereon, and continued to do so after the entry of the plaintiffs. The defendants claimed under a license from Hallett. It was held that the plaintiffs could not maintain an action for the interruption of their alleged right of possession. "Now, when two parties," said Mr. Justice Wilde, in delivering the judgment, "have a concurrent or mixed possession, and neither party has any other title, nor the exclusive priority of possession, neither party can maintain trespass against the other. We think, therefore, that, as Hallett had prior possession, he had a right to maintain it, notwithstanding the entry and claim of the town; and if he had entered claiming title, at the same time the town entered, and had continued to maintain concurrent possession, neither party, it seems, could maintain trespass." See also Tappan v. Burnham, 8 Allen, 70. But quære whether, as against the defendants, the plaintiff could not recover, for the former claimed only as licensees of Hallett. See Wood v. Lead bitter, 13 Mees. & W. 838, infra.

In cases of mixed possession, held in ignorance of the true boundary line, he in whom the title actually exists may maintain trespass against the other for

injuries committed upon the land. Leach v. Woods, 14 Pick. 461.

The devisee of one who had only a bare possession may also, it seems, maintain an action against a wrongdoer for disturbing his occupancy. See Asher v. Whitlock, Law R. 1 Q. B. 1, where the heir of such a devisee was held entitled to maintain ejectment against a stranger who had entered upon the land.

The doctrine of Cutts v. Spring does not apply, it seems, as to rights and things not capable of full possession. The editors of Sinith's Leading Cases, indeed, say that it may, perhaps, be laid down generally that to rights lying in grant, and not susceptible of possession or seizin, there can be no title as against a wrong-doer where there is none against the party capable of granting such rights; excepting only where the right claimed is a natural incident of property which is in the possession of the claimant. And they give the following illustration: Thus, as a mere license confers no right at common law against the licensor, but only excuses that which, if not done under the license, would have been a wrong to him (Wood v. Leadbitter, 13 Mees. & W. 838), the licensee of that which might have been conferred as an easement or profit-à-prendre, cannot, it is apprehended, maintain an action against a wrong-doer for depriving him of the benefits which he might or would have enjoyed under the licensee. 1 Smith's L. C. 318 (6th Eng. ed.).

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Hill v. Tupper, 2 Hurl. & C. 121, is cited in support of this proposition, and appears to sustain it. In that case an incorporated canal company had granted by deed to the plaintiff the sole and exclusive right or liberty to put or use

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boats on the canal, and let them for hire; and the action was brought against the defendant for disturbing the exclusive right claimed under this deed. The court held that the plaintiff could not recover. Pollock, C. B., said: After the very full argument which has taken place, I do not think it necessary to assign any other reason for our decision than that the case of Ackroyd v. Smith, 10 Com. B. 164, expressly decided that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute a property in the grantee. This grant merely operates as a license or covenant on the part of the grantors, and is binding on them as between themselves and the grantee, but gives him no right of action in his own name for any infringement of the supposed exclusive right."

It is doubtful, too, if this doctrine that bare possession avails against a wrong-c doer is true of rights or things which are not capable of full possession, even in favor of the owner of the soil. See Whaley v. Laing, 27 Law J. Ex. 327; s. c. 2 Hurl. & N. 476; 3 Hurl. & N. 675, 901. In this case, the declaration alleged that the plaintiffs were possessed of mines and of engines and boilers for working the mines, and used, had, and enjoyed the benefit and advantage of the waters of a branch canal, near the engines and boilers, to supply them with water; and that the water "used and ought to run and flow without being fouled or polluted, but that the defendant wrongfully fouled and polluted the water, and thereby injured the plaintiffs' engines." The defendant pleaded not guilty, and also traversed the allegation that the water ought to run and flow without being fouled or

polluted. The plaintiffs alleged no right to the water. The case was much litigated, and there was great diversity of opinion among the judges; but it was finally held by four judges against two (3 Hurl. & N. 901) that the declaration was bad in arrest of judgment, for want of an allegation that the plaintiffs were entitled to the full enjoyment of the water.

In Hilton v. Whitehead, 12 Q. B. 734, the declaration alleged that the plaintiff was possessed of a dwellinghouse, and the defendant of coal-mines near to and under it; that the dwellinghouse was supported in part by land between the same and the mines; and that the plaintiff" of right was entitled to and of right ought to have had his said dwelling-house so supported by the said land without the hindrance or disturbance of any person." It then alleged that the defendants so wrongfully and injuriously worked the mines as to loosen and disturb the support of the house. The declaration was held bad, after verdict, for not stating how it was that the plaintiff was entitled to have his house supported by the land above the mines.

In Jeffries v. Williams, 5 Ex. 792, however, which was decided two years later, a similar declaration was held good; but this was because there was nothing to show that the defendant owned the soil in which the mines were situated, for which reason he was considered, prima facie, a wrong-doer. The case appears to have been decided independently of Hilton v. Whitehead, that authority not being cited. See also Wyatt v. Harrison, 3 Barn. & Ad. 871; Bibby v. Carter, 4 Hurl. & N. 153.

(b.) Injuries to Reversion. It is not necessary in all cases that the plaintiff