For the same reason, when the trespass is transitory in its nature, the plaintiff may lay the offence to have happened in any county he pleases, and therefore, unless it is essential to the defence that the place where it really took place should be disclosed, the plea must accord with the declaration in this respect.142 In general, no plea is required to matters in aggravation, because when the plea, if true, destroys the claim of the plaintiff to recover at all, it necessarily avoids all matters laid in aggravation of the principal charge.

In an action of trespass quare clausum fregit the defendant may deny the plaintiff's title by pleading, liberum tenementum, that he himself holds the freehold, and consequently, cannot be guilty of entering it.143

The defendant may also plead a license to enter the premises either in law or in fact.

3638. A special plea which amounts to the general issue is defective; for this reason care must be taken that the matter of the special plea be such as shows and confesses that a trespass has been committed; otherwise, it will amount to the general issue.14

When there are several defendants, they may join in pleading these matters, which are a defence to all alike, or they may sever. If the subject matter of their respective defences, however, is peculiar to each individually, they must of necessity sever in their pleas.

But the defendants must be careful not to join in a plea the matter of which is a good defence for one of them but not for the other, for such plea is bad altogether. Being an entire plea, it cannot be separated into parts, and being defective in part, it is so in all. If, for example, the sheriff, his bailiff, and the plaintiff in an original suit are jointly sued in trespass and they jointly pleaded a plea of justification under a void writ, it will be bad, because, although the sheriff and his bailiff might be justified under it, the original plaintiff could not be, and so the plea would be bad as to all.145

Special pleas are classified into those which are in justification, in excuse, or in discharge. These have already been fully considered.146

3639. When the defence is local, varying from and traversing the venue in the declaration, and all other places beside the one named in the plea, the plaintiff may either tender an issue upon the traverse or pass it by and answer the matter of the defence.147

If the defendant has justified by his plea under an authority in law, the plaintiff may reply that he has abused such authority, and thereby become a trespasser ab initio. This form of replying is sometimes termed a replication in the nature of a new assignment.

The replication de injuria sua propria absque tali causa denies the whole plea, and puts in issue, and compels the defendant to prove, every material allegation in his plea. In form, it is that the defendant committed the trespass or grievances of his own wrong without the cause by him in his plea alleged. The word without is adopted in all formal traverses, and is negative, here signifying and not for, as is evident from the language of the ancient entries, which is "et nemy pur tiel cause." 148

3640. The evidence is to be considered in two divisions, first, the evidence for the plaintiff, second, the evidence for the defendant.

142

Errington v. Thompson, Ld. Raym. 183.

143 He may plead the freehold either in himself or in another with whom he is in privity. Jones v. Wafer Co., 18 Ga. 539.

144 Brown v. Archer, 1 Hill, N. Y. 266; Abel v. Abel, 1 Root, Conn. 549.

145 Phillips v. Biron, Strange, 509; Smith v. Boucher, Strange, 993; Middleton v. Price, Strange, 1184.

146 Before, 2923.

147 Serle v. Darford, Ld. Raym. 120.

148 The reader is referred, for a full explanation of the replication de injuria, to n. 2977.

3641. The evidence in favor of the plaintiff relates to the right of the plaintiff, the injury committed by the defendant, and the damage done.

3642. The invasion of the plaintiff's right of possession is sufficient to support this action; though the right of property may and frequently does become a subject of controversy, still the gist of the action is the injury done to the plaintiff's possession.

The possession of the plaintiff, which may be thus invaded, is actual or constructive; and it is rightful or de facto. Upon proof of an injury done to his possession, when the possessor does not hold for another, he may maintain his

action.

3643. The general owner has not only a constructive possession when the property is in the care and custody of his servant, agent, or overseer, or in the hands of a bailee for custody, carriage, or any case, as borrower, depositary, or mandatary, when the bailee has no vested interest, and then he may sue in trespass; but he has also a constructive possession as against his bailee or tenant, who having a special property in the chattel has violated his trust by destroying that which was confided to him. Thus, where a bailee of a horse kills him, or if a joint tenant or tenant in common destroy the joint property, or if a tenant at will cuts down trees, the interest of the wrong-doer is thereby determined, and proof of these facts will be sufficient to entitle the plaintiff to

recover.

3644. But one not having a right of possession, but being entitled merely to a reversionary interest, cannot maintain trespass, as we have seen; but for the injury which he has sustained he may have an action on the case.

3645. With regard to fences and hedges, and other erections on the boundaries of an estate, on a question of trespass between two proprietors, the plaintiff, to support his action, must prove them to be his, and if he built them at his own expense upon his own land, they are his; but if built equally upon the land of both, though at their joint expense, each is the owner in severalty of the part standing on his own land.149 When there is no proof as to who is the owner of a partition fence, it is presumed to be common property of both.150

3646. However great may have been the injury to the plaintiff, he cannot recover unless he can prove that it has been committed by the defendant. Positive proof that he committed the injury will be sufficient to make him liable, unless he had a lawful justification or excuse. He will be chargeable also if it be proved that the wrong was done by his command, or that he subsequently sanctioned it, or took advantage of it for his own benefit, or participated with others in the acts, or by inciting others to it."

151

Any one who assists or participates in a trespass is liable alone or with the others for the whole damage, and a corporation and its servant may be sued jointly for an injury caused by the latter in carrying out his instructions.152

It must be proved that the act was done with force, directly applied, for without this there was not such an injury for which trespass will lie.

3647. Although the act complained of may have been committed with force to the person, personal, or real property of the defendant, yet if it caused no damage, the plaintiff cannot recover. We have already mentioned the following cases where the defendant proved that he gently touched the plaintiff to draw his attention; where he committed a battery on his horse which was not

149 Matts v. Hawkins, 5 Taunt. 20.

150 Cubit v. Porter, 8 Barnew. & C. 257, and note. See Vowles v. Miller, 3 Taunt. 138; Archbold, Nisi P. 328; 2 Greenleaf, Ev. 617.

151 Petrie v. Lamont, 1 Carr. & M. 93.

152 Hewett v. Swift, 3 All. Mass. 420; Wallace v. Miller, 15 La. Ann. 449.

followed by any damage; and where he flew a kite over his fields, without otherwise entering the plaintiff's close. In these cases trespass cannot be maintained.

When the plaintiff is in possession of personal property, he may in general recover for the whole damage. But a tenant in common of real estate can recover only for the damage done to his interest.153

A landlord and tenant may both maintain actions at the same time, and the tenant recovers for the injury to his possession and the interruption of his profits, and the landlord for the permanent injury to the estate.154

3648. Under the general issue of not guilty the defendant may prove that he did not take the goods, or that the plaintiff had no property in them, or that he did not enter the plaintiff's close, or that the freehold and immediate right was and still is in himself, or in one under whom he claims title. He may also prove under this issue that he made a distress for rent, when it was made on the premises; but if it were made elsewhere, or for any cause but rent in arrear, no evidence of it can be admitted, except under a special plea.155 Matters in justification, or excuse, or in discharge of the action, we have seen, must be specially pleaded, and cannot be given in evidence under the general issue; but matters in mitigation of the wrong and damages may be given in evidence under this issue.156 Thus, in an action of trespass for false imprisonment, against an individual who was a police officer when the general issue was pleaded, evidence of reasonable suspicion of the plaintiff's having been guilty of felony was received in reduction of damages 157 and in a similar case evidence was allowed to be given of the contents of the plaintiff's trunk, for the purpose of showing that he was addicted to burglary; but it was held that the plaintiff's character could not be given in evidence under the general issue. 158

3649. Under the plea of liberum tenementum the defendant must prove that he has a title to the premises. This may be done either by documentary evidence or by proof of actual adverse possession for twenty years. The plea admits the possession to have been in the plaintiff, as described in the declaration, and that the defendant committed the acts complained of. If the defendant succeeds in establishing a title to part of the close, he will succeed, though he does not prove a title to the whole."

160

159

3650. Under the plea of license, the defendant may prove a license in law or in fact, express or implied. If he can prove that he entered to serve a legal process, the doors being open,' or to distrain for rent, or to do any of the numerous acts which justify an entry on the land of another, he will be justified.161 And it makes no difference if the license was given by mistake."

3651. We have seen that the replication de injuria sua, absque tali causa, puts in issue the whole of the plea of the defendant; the whole plea being thus traversed under this replication, the plaintiff may adduce any evidence disproving the facts alleged in the plea; but he cannot go into evidence of new matter,

153 Jackson v. Todd, 1 Dutch. N. J. 121.

154 George v. Fisk, 32 N. H. 32.

155 1 Chitty, Pl. 493, 494; Furneaux v. Fotherly, 4 Campb. 136.

156 3 Stephen, Nisi P. 2642.

157 Chinn v. Morris, 1 Ry. & M. 424; and see Viner, Abr. Evidence, 16; Watson v. Christie, 2 Bos. & P. 225; Beckwith v. Philby, 6 Barnew. & C. 635; Samuel v. Payne, Dougl. 359; Mure v. Kaye, 4 Taunt. 34.

158 Russell v. Shuster, 8 Watts & S. Penn. 308.

159 Smith v. Royston, 8 Mees. & W. Exch. 381; Richards v. Peake, 2 Barnew. & C. 918. Chipman v. Bates, 15 Vt. 51.

160

161 Before, 2370.

162 Shaw v. Mussey, 48 Me. 247.

which shows that the defendant's allegation, though true, does not justify the trespass.163

3652. When the verdict has been rendered for the plaintiff in trespass, the judgment is, that he recover his damages assessed by the jury, and costs. The rule in assessing the damages is to include not only the principal transaction, but all its attendant circumstances and its natural and injurious results.164 The effect of such judgment, when it is rendered for seizing personal property and retaining it, are the damages given for the value and the tortious taking, and changes the title to it, so that the trespasser becomes the owner.16

When chattels which are used in trade or commerce are illegally seized, the loss of probable profits from their sale or use cannot be recovered.166 But the plaintiff may have damages for the peculiar value to him; as, where, by a trespass, the plaintiff loses a lease which was of peculiar value, on account of business opportunities. 167 Where the property is taken without malice, under a claim of title, the damages are its value at the time of taking, with interest from that time.168

3653. The judgment for the defendant is for costs. A judgment in trespass is conclusive only on the facts necessarily involved. It may decide either that the trespass was not committed or that the plaintiff was not in possession; it decides nothing as to the right of property, and cannot be pleaded in actions involving the right of property, as real actions or trover."

169

163 Sayre v. Rochford, 2 W. Blackst. 1165; King v. Phippard, Carth. 280; Warral v. Clare, 2 Campb. 629.

164 Barnum v. Vandusen, 16 Conn. 200; Warfield v. Walter, 11 Gill & J. Md. 80; Hammatt v. Russ, 16 Me. 171.

165 Fox v. Northern Liberties, 3 Watts & S. Penn. 103.

166 Selden v. Cashman, 20 Cal. 56; Callaway Co. v. Clark, 32 Mo. 305.

167 Allison v. Chandler, 11 Mich. 542; Snively v. Fahnestock, 18 Md. 391.

168 Oviatt v. Pond, 29 Conn. 479; State v. Smith, 31 Mo. 566.

169 Sabins v. McGhee, 36 Penn. St. 453; Hargus v. Goodman, 12 Ind. 629.

3655. Origin of this action.

3656. The form of the proceedings.
3657. The present form of action.

3658. What may be recovered in ejectment.
3659. The nature of the plaintiff's right.
3661. The nature of the injury or ouster.
3662. Allegation of lease, entry, and ouster.
3663. The pleadings in modern practice.
3664. The issue in ejectment.

3665. Joinder of plaintiffs.

3666-3675. The evidence.

3666-3673. Evidence for the plaintiff.

3667. Evidence of title when the parties are privy to each other. 3668-3672. Evidence of title when there is no privity.

3669. Evidence of title in the heir at law.

3670. Evidence of title in a devisee.

3671. Evidence of title in a personal representative.

3672. Evidence of title in a guardian.

3673. Evidence of possession by the defendant.
3674. Evidence for the defendant.

3676. The verdict in ejectment.
3677. The judgment in ejectment.
3678-3688. The action for mesne profits.
3679. What may be recovered.

3680, 3681. The pleadings.

3680. The declaration.

3681. The plea.

3682-3686. The evidence.

3682. Evidence for the plaintiff.

3686. Evidence in defence.

3687. The verdict and judgment.

3689-3695. The action of waste.

3690. Who may bring an action of waste.

3691. Against whom waste lies.

3692. The pleadings in waste.

3694. The judgment in waste.

3654. Mixed actions are such as appertain in some degree to both real and personal actions, and therefore are properly reducible to neither of them, being brought for the specific recovery of lands, tenements, or hereditaments, and for the damages for injuries sustained in respect of such property. These are principally ejectment and waste.

1 Stephen, Plead. 3; Coke, Litt. 284, b; Comyn, Dig. Actions, D, 4.