But it is said, if A finds the goods of B, and embezzles them, B may maintain Trespass for them; but it would be safer to bring Trover or Detinue.

This action, as well as Trespass for an assault and battery and false imprisonment, is transitory.

Where goods are altered in form, after being taken from the plaintiff's possession, he may justify retaking them; as if timber is cut up into boards, or cloth is cut up into pieces.

But if they are materially altered, or wrought up with other materials, it seems they cannot be retaken; but the plaintiff must resort to his proper form of action, as Trover, Trespass, &c., according to circumstances. See Mod. 19, 20. Quære. It is there laid down that if cloth is made up into clothes, the clothes may be taken, but this must be understood with some reservation. See the Civil Law on this subject.

A man never becomes a trespasser by a bare non-feasance. Ld. Raym. 188; 8 Co. 146, b.

In what cases, CASE is the proper form of action, and not TRESPASS, see ante, CASE.

3. Trespass to lands and tenements, or quare clausum fregit.

For an injury to the lands or tenements of another, an action of Trespass quare clausum fregit, may be maintained.

This action may be maintained for entering one's house or close without license; for treading down, eating, or spoiling hay, grass, &c., with cattle, &c.; for breaking down fences; cutting down trees, &c.; for hunting in one's land, &c.

What is a sufficient possession.

Actual possession is necessary to maintain this action, but a bare possession is sufficient against a mere wrongdoer. 4 Taunt. 547. And therefore tenant at will, or by sufferance, can maintain this action against a stranger. 2 Roll. 551. The lessor in such case may also maintain Trespass for an injury to the land. So a mere lessee or grantee of herbage, underwood, &c., although the soil does not pass, may recover in this action for any injury to their interests. But a commoner cannot have this action; he must bring a special action on the case.

So a disseizor may maintain Trespass against every one but the disseizee or his attorney.

A disseizee may maintain this action against the disseizor for his first entry, without re-entry; or against any claiming under him, for the Trespass during that time, but the disseizee must first re-enter, and then he may recover, for the whole time he has been out of possession, against the disseizor, or those who have been in possession under him, by laying the trespass with a continuando. Mod. 461; Co. Lit. 257, a.

If an heir enters upon an abator, he cannot maintain Trespass for the wrong done before. 5 Com. Dig. 537.

Though a bargainee in England cannot maintain Trespass before entry; yet, under our common deed with warranty, acknowledged and recorded, it seems Trespass may be maintained without actual entry.

A lessor cannot maintain Trespass, quare clausum fregit, against a stranger, during the continuance of the lease. But the tenant in possession may bring Trespass, and for an injury to the reversion, the lessor must bring Case. 1 Johnson's Reports, 511; 3 Johnson's Reports,

461.

But after a disseizin, if the disseizee's estate determines before entry, he may maintain Trespass against the disseizor without entry; because the disseizee has no right to enter. 2 Rol. 550.

Where a man sells his land, he may maintain Trespass for a wrong, done before the sale. 2 Rol. 569, b. 20.

Where the owner of land lets it on shares to another, they may join in Trespass against a third person, who commits a Trespass affecting their joint interest. 3 Johns. R. 216. But the lease must be for more than a single crop. 8 Johns. R. 151.

Where there is a lease at will, if the tenant at will commits voluntary waste, it is a determination of the tenancy, and the lessor may recover in Trespass against such tenant. 7 Johns. R. 1. Ld. Coke assigns as a reason, because voluntary waste is an act contrary to the trust reposed by lessor in tenant at will. Co. Lit. 57, a.

Against whom Trespass quare clausum fregit may be maintained.

Trespass is joint and several in its nature, and every one aiding or abetting, or commanding a Trespass, is liable for the whole damage, and may be sued for it alone, or jointly with the others, at the plaintiff's election; and, if the plaintiff recovers for the whole damage, of one, although the others may plead that recovery in bar of another action for the same trespass against them; yet such defendant, so paying, can have no action for a contribution.

Where cattle belonging to E, in the custody of F, escape into G's land, and do a trespass there, G may maintain Trespass against E or F at his election. 2 Rol. 546, l. 20.

Where a man has an authority given him by law, and he abuses it by misfeasance, he becomes a trespasser ab initio. But a man does not become a trespasser ab initio, by a bare non-feasance. 8 Co. 146, b; 13 Johns. 414; 15 Johns. R. 401.

And where a man has a license given him by the party, and abuses it, he does not become a trespasser ab initio. 13 Johns. R. 414; 8 Co. 46, b.

Neither can a man become a trespasser ab initio, unless he was implicated at first. Anthon's N. P. 159, a.

Where E and F contract for the sale of land belonging to F, and E enters upon it and cuts timber, and afterwards the contract is rescinded by E, F may maintain Trespass against E. 9 Johnson's Reports,

35.

Where E hires land of G on shares, and afterwards assigns his interest in the crop growing, to F, if a stranger cuts and carries away the crop, F must sue in his own name, and cannot maintain Trespass in the name of E. 9 Johns. R. 143.

To enter a dwellinghouse without license is generally a trespass; but where there is a familiar intimacy, it may be shown as evidence of a license. To enter an inn without express permission, is no trespass; for, keeping an inn amounts to a general license. If a man enters a

dwellinghouse by permission, and continues there after a request to leave it, he becomes a trespasser. 12 Johns. R. 348.

In the case cited, it is said, he becomes a trespasser ab initio; but quare of this, since the license to enter is not given by law, but is the act of the party.

If a person having a right to enter, enters with force, he is not liable to an action of Trespass, though he may be indicted for it. 13 Johns. R. 235.

Where Trespass quare clausum fregit cannot be maintained.

An heir cannot maintain Trespass against an abator, because he has never been in possession.

An owner of a pew cannot maintain Trespass for entering it, because he has not exclusive possession; the possession of the church being in the parson. 1 T. R. 430.

If a man imprisons me wrongfully, I may justify the breaking of windows or doors to get out. Com. Dig. Trespass, D.

If E sells F all his trees, F may enter E's land to cut them down, &c. when he pleases. 2 Rol. 567.

If E's house is on fire, and I, to save my own, pull his down, he can maintain no action against me. Ibid.

If cattle are damage feasant on my land, I may drive them out, but must not injure them. 4 Co. 38, b.

An executor may enter to take timber belonging to the deceased; so a reversioner may enter to view waste, if he does not break a door or window. 2 Rol. 568.

If cattle going along in the highway, eat raptim et sparsim against the will of the owner, it will excuse the Trespass. 2 Rol. 556.

Other cases where Trespass may be maintained.

Trespass lies for the husband for the battery of his wife, whereby he lost her society, &c. Com. Dig. Trespass, B. 5.

So it lies for the battery of a servant, whereby plaintiff lost her service.

Trespass also is frequently brought by a husband for the seduction of his wife or daughter, and then usually the declaration is in Trespass quare clausum fregit, and the special matter is alleged by way of ag gravation.

Trespass lies for procuring, by fear and influence, an independent foreign prince to imprison the plaintiff. 2 Bl. 1055.

If a justice of the peace maliciously grants a warrant against another, without any information, upon a supposed charge of felony, Trespass lies against him. Comyn's Digest, Trespass, B. 5, cites 2 Ť. R. 225.

Trespass lies against an attorney who sues out irregular process and delivers it to an officer. Bl. 860.

Trespass, it is now settled in this commonwealth, is the proper remedy against assessors for an illegal assessment. See ante, Case.

But assessors of a town, acting with fidelity and integrity in assessing a tax, &c. are not responsible in any form of action, for accideally

assessing a person not an inhabitant of the town, and so not liable to be taxed. Baker v. Allen, 21 Pick. 382.

If the plaintiff's property in such case, should be taken and sold, under a warrant, he has no remedy, under the Rev. Stat. ch. 7, sec. 44, against the assessors. He may, however, recover the money back from the town. See ib. A very unsatisfactory remedy, and which sometimes must be wholly inadequate. E has a new chaise worth $200. He is assessed in a wrong place. The deputy-sheriff, under a warrant, takes his chaise, and E not being able to raise the money, it is sold at auction for $50; E has no remedy except to recover back the $50 from the town, supposing the tax to have amounted to so much.

Where a Trespass is done to several at the same time, each should bring the action severally. 3 Lev. 354. Unless where they have a joint interest in property, the subject of the Trespass.

Where a Trespass is done by several, the action may be brought against all, or any of them. 1 Lev. 41.

If E's wife puts E's cattle into F's land, F may maintain Trespass against E. 2 Rol. 553, b.

But if E's servant puts his cattle into F's land, without his master's knowledge, F may maintain Trespass against the servant, but not against the master.

If cattle in E's custody do a trespass, Trespass may be brought against E, or against the owner, at the plaintiff's election. Rol. 546. Lut trespass cannot be maintained against a man for an act to which he is neither aiding nor consenting; as if E strikes a horse on which F is riding, and the horse kicks G, G may maintain Trespass against E, but not against F. Salk. 637.

After a recovery of land in ejectment, Trespass is also a proper remedy for the plaintiff to resort to, for the purpose of recovering the mesne profits. But where the recovery is had, not by ejectment, but by a writ of entry, or other real action, it is not equally clear, to what extent the demandant or plaintiff may obtain redress.

But now, under the Revised Statutes of Massachusetts, the demandant in a writ of Entry, is entitled to recover damages, in lieu of rents and profits, &c. &c. Ch. 101, sec. 14.

Of damages in Trespass.

It seems, the plaintiff may recover for all the direct damages resulting from the act of the defendant, even if a considerable time should elapse before those consequences follow, and is by no means obliged to rely on an action on the case, for that purpose. But, these damages, if peculiar or special, should be set forth in the declaration as matters of aggravation, that the defendant may have due notice of the claim.

Remote and contingent damages, or such as the plaintiff himself, having notice of the defendant's act, might have prevented, and which consequently result from his own wilful neglect, are not to be allowed. See Loker v. Damon, 17 Pick. 284.

See

In trespass against an officer for attaching a vessel, bound on a voyage, the jury ought not to assess damages for breaking up the voyage. Boyd v. Brown, 17 Pick. 453; White v. Damon, 8 Pick. 356. Quære, whether this ought not to depend on the circumstances of each

case.

DECLARATIONS IN TRESPASS.

1. Assault and Battery.

Assault and Battery; common form.

In a plea of trespass; for that the said D, on &c., at &c., with force and arms, in and upon the plaintiff, made an assault, and him then and there beat, bruised, wounded, and evil entreated; and other enormities to the plaintiff the said D then and there did, against our peace and to the damage,

&c.

NOTE. Under the words in italics, the plaintiff is at liberty to give in evidence, nothing, except what could not decently be set forth on the record. Trespass for an assault and battery, is transitory; if committed abroad, say, for that the said D, on &c., at B, in parts beyond seas, or on the high seas, viz. at C, (within the proper county) &c.

Assault, battery, and false imprisonment, and holding in servitude.

For that the said D, at &c., on &c., with force and arms, assaulted the plaintiff, and him then and there took and imprisoned, and restrained him of his liberty, and held him in servitude, from &c., until &c., against the law of the land, and against the will of the plaintiff; and other injuries the said D there within that time, did to the plaintiff against our peace, &c. JONA. SEWALL.

For assaulting plaintiff, and taking away his gun.

For that the said D and E, on &c., at &c., with force and arms, made an assault upon the plaintiff, and then and there beat, bruised, wounded, and ill treated him; and then and there took and carried away from the plaintiff, a gun of the plaintiff of the value of $-, and converted the same to the use of the said D and E, &c.

For assaulting, beating, and wounding plaintiff, and tying him to a person, so that he caught the itch.

For that the said D, on &c., at &c., with force and arms, made an assault upon the plaintiff, and then and there beat, kicked, bruised, wounded, maimed, and ill treated him ; and then and there struck and kicked him on the face &c., (according to the fact) and other parts of his body, many violent blows, &c., and thereby cut and bruised the face, &c. of the plaintiff, and then and there imprisoned him for a long space of time, viz. for the space of six months, against his will and without any legal cause whatsoever; and then and