proved in aggravation of damages, and, if such be the fact, that the defendant professed to visit the family, and was received as the suitor of the daughter. The defendant may, in mitigation of damages, adduce any evidence of the improper, negligent, or imprudent conduct of the plaintiff himself; as, where he knew that defendant was a married man, and allowed his visits in the probability of a divorce, Lord Kenyon held the action could not be maintained, Peak, R. 240.

Besides the ordinary suit for damages, another action for seduction is a common action for trespass, which may be brought when the seducer has illegally entered the father's house, in which action the debauching his daughter may be stated and proved as an aggravation of the trespass. Or, where the seducer carries off the daughter from her father's house, an action might be brought for enticing away his servant. In these two actions the seduction may be proved, though it may not have been followed by the consequences of pregnancy.

These are the only remedies which have been extended by the modern ingenuity of the courts, to enable an unhappy parent to recover a recompense, under certain circumstances, for the injury he has sustained by the seduction of his daughter. But though the law affords such slender protection for the chastity of females, when consenting to their own degradation, yet it has been cautious in protecting their persons from the assaults of violence, and also in guarding their property from any who may seek to obtain possession of it by forcible marriage, which last, as will appear under the head of ABDUCTION, is a highly penal offence.

CHAPTER VI.
Trespass.

TRESPASS is, generally, any act whereby another is injured in person or property; but, in a more limited and common acceptance, it signifies an entry upon another man's ground without his permission, especially if contrary to his order, and doing some damage, however inconsiderable, for which a compensation is recoverable, according as the intent of the trespasser was wilful or inadvertent, and the damage actually sustained.

Every man's ground, in the eye of the law, is enclosed either by a visible fence or imaginary boundary line, and whoever enters upon it without leave of the owner is a trespasser.

But a person is answerable not only for his own trespass, but that of his cattle; for if, by negligent keeping, they stray upon the land of another and tread down the herbage, or commit other injury, this is a trespass for which the owner must answer in damages.

In some cases trespass is justifiable, as if one come to demand or pay money, there payable or due; or to execute, in a legal manner, the process of law. Also a man may justify entering into an inn, or public-house, without leave of the owner, because when a man professes to keep such accommodation, he gives a general license to any person to enter his doors. So, a landlord may justify entering to distrain for rent; a commoner to attend his cattle commoning on another's land; and a reversioner to see if any waste be committed on the estate.

But in cases where a man misbehaves himself, or abuses the authority with which the law invests him, he becomes a trespasser; as if a person come into a tavern, and will not go out in a reasonable time, but stays there all night, contrary to the inclination of the owner, he makes himself a trespasser from his first entry.

An exclusive interest in the crop or herbage, without a property in the soil, is sufficient to maintain an action of trespass. But possession, actual or constructive, must be proved. If trees are excepted in the lease, the land whereon they grow is necessarily excepted also; consequently, the landlord may maintain trespass for breaking his close, if the tenant cut down the trees.

II. TRESPASSES IN SPORTING.

The common law allows the hunting of foxes, badgers, and such noxious animals, over the ground of another man for the public good, and excuses a trespass done in the pursuit of them: provided in doing this no more damage is done than is necessary, and inevitable, and that it is done in the usual and ordinary course. But the law will not justify any excessive damage to the land; for, even in hunting the fox or badger, a man must not break the ground or dig for him.

In general, it is a trespass at common law for any man to search for game on another's ground, for which the owner or tenant may maintain his action. No lord of a manor can justify sporting over another's ground unless he have grant of free-warren over such man's ground. And it seems doubtful, after the decision of Lord Ellenborough, in the Earl of Essex v. Capel, Hertford Assizes, A.D. 1809, whether the hunting of a fox over the grounds of another, without leave of the owner, is not a trespass; at all events, to unbag a fox, and pursue him over another's ground, would be a trespass.

In an action of trespass for sporting over the ground of another, the jury may take into consideration, in determining the verdict, not only the actual damage sustained by the plaintiff, but circumstances of aggravation and insult on the part of the defendant. Thus, in Merest v. Harvey, where the defendant, a inagistrate, had committed the trespass before the plaintiff's face, in defiance of notice that he was a trespasser, and had accompanied it by every

kind of insult, a verdict was given for £500 damages; and the court of Common Pleas, in a motion for a new trial, refused to reduce them, though the plaintiff had sustained no actual pecuniary injury, 5 Taunt. 442.

To prevent trifling and vexatious actions of trespass, it is provided by statute, that, where the jury who try an action of trespass give less damages than £5, the plaintiff shall be allowed no costs unless the action were brought to try a right, or the trespass were wilful and malicious, 23 & 24 V. c. 126, s. 34. Some former statutes provided that where the damages were under 40s. the plaintiff should recover no more costs than damages.

Every trespass is deemed wilful where the defendant has notice, and is forewarned not to come upon the land; as every trespass is malicious where the intent of the defendant plainly appears to be to harass and distress the plaintiff; and, in such cases, the judge is bound by statute to certify accordingly, which entitles the plaintiff to FULL costs, whatever may be the amount of damage, or the rank and qualification of the defendant.

A more summary proceeding than by action against trespassers is provided by the Game Act, 1 & 2 W. 4, c. 32, which enacts, that any person trespassing in the daytime in pursuit of game, or woodcocks, snipes, quails, landrails, or coneys, shall, on conviction before a justice of the peace, forfeit any sum not exceeding £2, with the costs of conviction; and if any persons, to the number of five, or more together, commit a trespass in like manner, each shall forfeit £5, with costs of conviction. Such trespassers not quitting the ground when required, or refusing to give their address, may be arrested and taken before a magistrate, and, on conviction, be fined not exceeding £5. See further, 6 & 7 Will. 4, c. 65; 7 & 8 V. c. 29; 25 & 26 V. c. 114.

CHAPTER VII.

Malicious Prosecution.

A PERSON may be severely injured in his person, property, or reputation, by malicious indictments or prosecutions being preferred against him, for which there is no ground but the malice or knavery of the plaintiff: the remedy for this species of injury is by an action on the case.

The grounds of an action for a malicious prosecution are, the falsehood of the charge, the malice of the defendant, either express or implied, want of probable cause, and the injury sustained by the plaintiff, by reason of the malicious prosecution, either in his person by imprisonment, his reputation by the scandal, or in his property by the expense.

Although it is not actionable to commence a civil suit, without just cause, since it is a mere claim of right; and the defendant, in case of a nonsuit or verdict against the plaintiff, is entitled to costs; yet the law allows an action to be maintained for maliciously arresting or holding a party to bail, either where there is not any debt due, or where the party is held to bail for a larger sum than is justly due.

A plaintiff is bound to accept from a defendant in custody the debt and costs, when tendered in satisfaction of his debt, and to sign an authority to the sheriff to discharge the defendant out of custody and an action on the case will lie against a plaintiff for having maliciously refused so to do. And the refusal to sign the discharge is sufficient evidence of malice, in the absence of circumstances to rebut the presumption.

The abolition (in most cases) of imprisonment for debt has, however, deprived this of much of its practical importance.

An action will lie for maliciously procuring a man to be made a bankrupt.

Where there is reasonable ground for prosecution, and no malice appear, an action is not maintainable. So, a captain in the navy was accused by his superior of neglect of duty, and having been tried by a court-martial, was honourably acquitted in this case, it was held an action for malicious prosecution could not be maintained, Sutton v. Johnston, 1 T. R. 493. But an action lies for an inferior against his superior military officer (both being under martial law), who imprisons him for disobedience to an order made under colour, but not within the scope, of military authority, although the imprisonment be followed by a trial by court-martial. 4 Taunt. 57.

Where two or more persons combine to prefer an indictment charging any one without foundation, or otherwise conspiring to injure an individual, an action of conspiracy may be brought for compensation in damages.

As prosecutions for criminal offences are for the benefit of the public, and no one would be induced to pursue an offender for a criminal charge if he were liable to an action on an acquittal, the courts in general discourage actions for malicious prosecution, unless the malice of the prosecutor, as well as the innocence of the party accused, be obvious. But it has been remarked that juries in such actions are very apt to find for the plaintiff, if he appear to have been in fact innocent, whether the defendant had or had not reasonable ground for supposing him to have been guilty.

CHAPTER VIII.

Nuisance.

A PRIVATE nuisance, as distinguished from a common or public nuisance, which will fall under the class of criminal offences, may be defined an injury or annoyance to the person or property of an individual.

If a man build a house so near to mine that his roof overhang my roof and throw the water off his roof upon mine, this is a private nuisance, for which an action will lie. Likewise to erect a house or other building so near mine that it obstructs my light and windows is a nuisance. But in this case it is necessary the windows be ancient, that is, have subsisted there a long time without interruption, otherwise there is no remedy. An uninterrupted enjoyment for twenty years is sufficient to support an action on the case for this disturbance of it. But a right thus acquired must be limited in degree by the use made of it; a person by the use of a portion of a stream for twenty years does not thereby acquire a right to the use of the whole, or any quantity larger than that proportion or by the enjoyment of light and air through a small window, to the same enjoyment through one of a larger size.

If an ancient window has been completely blocked up above twenty years, it loses its privilege, 3 Camp. 514; and even the presumption of right from twenty years' uninterrupted enjoyment was excluded by the custom of London, which entitled every citizen to build upon an ancient foundation as high as he pleases. But this custom is now abolished.

If I have, by prescription or otherwise, a right of way annexed to my estate across another's land, and he obstruct me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nuisance; for, in the first case, I cannot enjoy my right at all; and in the latter, I cannot enjoy it so commodiously as I ought to do.

To keep hogs near one's house, or to exercise any offensive trade, as a tanner, tallow-melter, soap-boiler, or the like, are all nuisances, for which an individual has remedy by action.

So, also, is it a nuisance if life be made uncomfortable by the apprehension of danger, as by keeping great quantities of gunpowder near dwelling-houses, 2 Str. 1167. And, in the Duke of Northumberland v. Clowes, where defendant employed a steam-engine in his business as a printer, which produced a continual noise and vibration in the plaintiff's apartments, which adjoined the premises of the defendant, it was held a nuisance. In Watson v. Clement a verdict on similar principles was given.