the public, continued in B., subject to the right of passage by the public, and that when severed and taken away by a wrongdoer, B. might maintain trespass for the asportation. Harrison v. Parker, 6 East, 154, see Spooner v. Brewster, 3 Bingh. 139. If two tenants in severalty build a party wall, one half of the thickness of which stands on the land of each, which is contributed by each under the building act, 14 G. III. c. 78; the wall ensues the nature of the land, and the owners of the lands are not tenants in common of the wall. Matts v. Hawkins, 5 Taunt. 20. But in a case to which the building act does not apply, the common user of a wall separating adjoining lands belonging to different owners, is primâ facie evidence that the wall and the land on which it stands belong to the owners of the adjoining lands in equal moities as tenants in common. Cubitt v. Porter, 8 B. and C. 257.2 Where two adjacent fields are separated by a hedge and ditch, the hedge prima facie belongs to the owner of the field in which the ditch is not. If there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership. Per Bayley, J., Guy v. West, 2 Selw. N. P. 1218. The rule with regard to ditching is this: no man making a ditch can cut into his neighbour's soil, but usually he cuts to the very extremity of his own land, he is of course bound to throw the soil which he digs out upon his own land, and after, if he likes it, he plants a hedge upon the top of it; therefore if he afterwards cuts beyond the edge of the ditch, he cuts into his neighbour's land and is a trespasser: no rule about four feet and eight feet has any thing to do with it. Per Lawrence, J., Vowles v. Miller, 3 Taunt. 138. The land which constitutes the ditch, in point of law, is part of the close, although it be on the outside of the bank. Per Holroyd, J., Doe v. Pearsey, 7 B. and C. 308. Where lands abutting on a ditch and a lane on each side belong to different owners, the presumption is, that a hedge and ditch on one side, both belong to the occupier of the land on that side. Per Bayley, J., Noye v. Reed, 1 M. and R. 65. It is said that if A. plants a tree at the extreme limits of his own land, and the tree growing, extends its roots into the land of B., A. and B. are tenants in common of the tree; but if all the roots grow in A.'s land, though the boughs shadow the land of B., the property is in A. Per Holt, C. J., Waterman v. Soper, 1 Ld. Raym. 737, B. N. P. 85, 2 Rol. Rep. 255; but according to another authority, if a tree grows in A.'s close, and roots in B.'s, yet the body of the main part of the tree being in the soil of A., all the residue of the tree belongs to him. Masters v. Pollie, 2 Rol. Rep. 141. In a late case, Littledale, J., ruled, that the tree belongs to him in whose soil it was first sown or planted. Holder v. Coates, 1 M. and M. 112. Evidence of the locality of the premises.] The venue in this action is local, and therefore trespass will not lie for breaking and entering a house in Canada. Doulson v. Matthews, 4 T. R. 503. Although it is not necessary to name, or to specify the abuttals of the locus in quo, yet if it be named or described by its abuttals, a material variance will be fatal. Thus, if the description be "on the south side, abutting on the mill of A.," the plaintiff must prove a mill there in the tenure of A., but it will be sufficient, though there be a highway between them. 2 Rol. Ab. 678, l. 10, B. Ñ. P. 89, Gilb. Ev. 237. Extreme strictness, however, is not observed in the proof of abuttals; thus, if a close be described as abutting towards the east, but it proves to be north inclining to east, the proof is sufficient, 2 Rol. Ab. 678, l. 13, Roberts v. Karr, 1 Taunt. 501. Where the close is stated to be situated in a certain parish, the proof must correspond with the statement. Taylor v. Hooman, 1 B. Moore, 161. If it is stated to be in the parish of A., it is enough if A. has a church and overseers of its own, although, perhaps, strictly speaking, it may only be a hamlet; in such an action the court will not try a question of parochiality. Anon. 2 Campb. 4. Evidence of trespass committed by defendant.] Trespass lies against the party who did the trespass, and all aiding him, Com. Dig. Tresp. (C. 1), and a person may become a trespasser by previous command, or where the trespass has been committed for his use and benefit, by subsequent assent, Barker v. Braham, 3 Wils. 377. Thus a person who sends out his hounds and his servants, and invites others to hunt with him, though he does not himself accompany them upon the plaintiff's land, is answerable for the trespass committed by them to the extent of the damage done by them. Baker v. Berkeley, 3 C. and P. 32; but a feme covert and an infant cannot make themselves trespassers, either by prior command or subsequent assent. Co. Litt. 180, b. note (4), 357, b. A master is not liable for the wilful trespass of his servant, 2 Rol. Ab. 553, 1. 25. But where he orders his servant to do an act, the natural consequence of which is a trespass, and the servant uses ordinary care in the execution of the order, the master is liable, though he directs the servant to avoid the trespass. Gregory v. Piper, 9 B. and C. 591. A party is liable for the acts of his attorney, on proof of the retainer, as in the following case :-A. employed B. an attorney to enforce payment of a debt. B. directed his agent to sue out a justicies in the county court. Before the return of the justicies the debtor paid the debt and costs to B. His agent not knowing of such judgment, afterwards entered up judgment in the 4 Eng. Com. Law Reps. 394. 14 Id. 197. 17 Id. 454. County Court, although the defendant had not appeared, and sued out execution, under which the goods of the debtor were seized; it was held that both A. and B. were liable as trespassers. Bates v. Pilling, 6 B. and C. 38; see also Crook v. Wright, R. and M. 278. The owner of animals mansuetæ naturæ is liable for trespasses committed by them in the land of another; Keilw. 3, b. Com. Dig. Tresp. (C.); but a person from whose land animals feræ naturæ, as rabbits, &c. escape, is not liable for an injury done by them. Boulston's case, 5. Rep. 104, b. Cooper v. Marshal, 1 Burr. 259, and see Mason v. Keeling, 1 Ld. Raym. 608, Latch, 13, Beckwith v. Shordike, 4 Burr. 2093. Where the defendant enters, &c. under an authority in law, the plaintiff may show that he has abused such authority, and so become a trespasser ab initio, but a mere non-feasance will not be such an abuse. Six Carpenters' case, 8 Rep. 146, a. A lessor who enters to view waste and does damage, or stays all night, a commoner who enters to view his cattle, and cuts down a tree, a man who enters a tavern and continues there all night against the will of the landlord, are all trespassers ad initio. Com. Dig. Tresp. (C. 2). So an officer who neglects to remove goods attached, within a reasonable time, and continues in possession. Reed v. Harrison, 2 W. Bl. 1218, Aitkenhead v. Blades, 5 Taunt. 198. A person distraining who remains in possession above the five days, and disturbs the party, is a trespasser, for the period only during which he remains in possession after the five days expired. Winterbourne v. Morgan, 11 East, 395, per Le Blanc and Bayley, J. J., Messing v. Kemble, 2 Campb. 115. The abuse of an authority in fact will not in general render the party a trespasser ab initio. Six Carpenters' case, 8 Rep. 146, b. As to the replication of abuse, see post. By stat. 6 Anne, c. 18, guardians, trustees, husbands, seized in right of their wives, and tenants, pur autre vie holding over without consent, are declared trespassers, but the act does not extend to tenants for years. B. N. P. 85. Evidence under alia enormia, and in aggravation of damages.] In trespass for breaking and entering the plaintiff's house, evidence that the defendant also debauched the plaintiff's daughter has been allowed under alia enormia. Per Holt, C. J., Russell v. Corn, 6 Mod. 127, cases temp. Holt, 699, Sippora v. Basset, 1 Sid. 225, B. N. P. 89. But it is said to be the safest and most convenient rule not to admit under this general averment, proof of such facts as the debauching of a daughter, which are entirely unconnected in their nature, and distinct from the substantive ground of the action (the trespass in entering the house), though in point of time, the one may have immediately followed the other. 2 Phill. Evid. 185, see ante, p. 300. In trespass for breaking and entering the house of the plaintiff, he may be allowed to give in evidence, that his wife was so terrified by the conduct of the defendant, that she was immediately taken ill, and soon afterwards died; but this evidence was held admissible only for the purpose of showing how outrageous and violent the trespass was, and not as a substantive ground of damage. Huxley v. Berg, 1 Stark. 98. So where the plaintiff declared against the defendant for breaking and entering her house, and under a false charge that the plaintiff had stolen property in her house, ransacking and searching, &c. whereby she was injured in her credit, it was held that the declaration was good, and that the jury might give damages for the trespass as aggravated by the false charge. Bracegirdle v. Orford, 2 M. and S. 77. The jury may consider not only the mere pecuniary damage sustained by the plaintiff, but also the intention with which the fact has been done, whether for insult or injury. Per Abbott, J., Sears v. Lyons, 2 Stark. 318. See Merest v. Harvey, 1 Marsh. 139. Evidence under the general issue.] Under the general issue the defendant may give evidence of title in himself, though a mere wrong-doer cannot show that the plaintiff has no property. B. N. P. 91. The defendant may under this plea prove the soil and freehold in himself, or that he held as tenant to the owner of the land, or that the plaintiff held as tenant to him (the defendant), and that his tenancy had expired at the time when, &c. Dod v. Kyffin, 7 T. R. 354, Argent v. Durrant, 8 T. R. 403, Turner v. Meymott, 1 Bingh. 158. So he may entitle himself to the possession, as the plaintiff's mortgagee for years, or as the lessee of such mortgagee. Johnson v. Howson, 2 M. and R. 226. So he may prove that the freehold and right of possession were in a third person, by whose command he entered. Diersley's case, 1 Leon. 301, 8 T. R. 403, Gilb. Evid. 255. The command must be proved; Davies 1. Lorimer, Lanc. Spring Ass. 1824; but it has been ruled that the declarations of the owner, made after the trespass, are inadmissible to prove the command. Garr v. Fletcher, 2 Stark. 71.* The defendant may also show, under the general issue, that he was tenant in common with the plaintiff, or that a third person by whose command he entered was tenant in common with the plaintiff. Ross's case, 3 Leon. 83, Gilb. Ev. 235. But where the subject matter which was held in common has been destroyed, tenancy in common is no defence, as where one tenant in common grubs up and destroys a hedge. Voyce v. Voyce, Gow, 201. In general every matter of justification or excuse must be pleaded specially, as a right of common, Co. Litt. 283, a; a right of way or easement, Vin. ab. Ev. (Z. a). Gilb. Ev. 251; defect of fences, Co. Litt. 283, a ; a license, Gilb. Ev. 249; an authority in law, Com. Dig. 2 Eng. Com. Law Reps. 313. h3 Id. 363. 8 Id. 280. 3 Id. 250. Pleader (3 M. 35); and so of all matters in discharge of the action as accord and satisfaction. Bird v. Randall, 3 Burr. 1353. But by various statutes particular persons are enabled to give the special matter in evidence under the general issue, partics distraining for rent arrear by 11 G. II. c. 19, s. 21, justices of the peace, mayors, constables, &c. by 7 Jac. I. c. 5, churchwardens and overseers by 21 Jac. I. c. 12. See ante, p. 369. Under the general issue the defendant cannot prove as a bar that the plaintiff is jointenant, or tenant in common of the locus in quo with a third person, which is matter of plea in abatement. Brown v. Hedges, 1 Salk. 290. B. N. P. 91. Gilb. Ev. 234. But he may give such evidence in order to reduce the plaintiff's damages pro tanto. Nelthorpe v. Dorrington, 2 Lev. 113. B. N. P. 35. So he may show other circumstances which he could not have pleaded in mitigation, as in trespass for cutting trees, that they were applied to purposes for which the plaintiff had covenanted to furnish timber. Rennel v. Wither, Manning's Index, 291. 2d Ed. Evidence on the plea of liberum tenementum.] Where the defendant pleads liberum tenementum, that the locus in quo is his soil and freehold, or the soil and freehold of a third person by whose command he entered, the issue is upon him, and he must prove it either by direct evidence of title, or by the presumptive evidence of title arising from acts of ownership, &c. Where the plaintiff has declared generally for a trespass to his close in A. without naming the close, and the defendant has pleaded lib. ten. upon which the plaintiff has taken issue, it will be sufficient for the defendant to prove a freehold in himself any where in A. which will entitle him to a verdict. Helis v. Lamb, 2 Salk. 453, Goodright v. Rich, 7 T. R. 355, 1 Saund. 299, b (n). The plaintiff in such case should have new assigned, setting out the name or abuttals of the locus in quo. But if the plaintiff names the real name of the close in his declaration, and the defendant pleads lib. ten. generally without setting out the abuttals of the close, upon which issue is joined, the plaintiff may recover on proving a trespass done to a close in his possession, bearing the name stated in the declaration, though the defendant may have a close in the same parish known by the same name; and it will not therefore be necessary for the plaintiff to new assign. Cocker v. Crompton, 1 B. and C. 489.' Evidence under plea of justification generally.] Where to a plea of justification the plaintiff has replied de injuriâ suâ propriâ absque tali causâ, the whole matter of the plea is put in issue, and must be proved, so far as it is material to constitute a justification. The plaintiff declared for breaking and entering his dwelling |