TRESPASS1, remedies. The name of an action, instituted for the recovery of damages, for a wrong committed against the plaintiff, with immediate2 force; as an assault and battery against the person; an unlawful entry into his, land, and an unlawful injury with direct force to his personal property. It does not lie for a mere3 non-feasance, nor when the matter affected4 was not tangible5.
2. The subject will be considered with regard, 1. To the injuries for which trespass may be sustained. 2. The declaration. 3. The plea. 4. The judgment6.
3. - §1. This part of the subject will be considered with reference to injuries, 1. The person. 2. To personal property. 3. To real property. 4. When trespass can or cannot be justified7 by legal proceedings8.
4. - 1. Trespass is the proper remedy for an assault and battery, wounding, imprisonment9, and the like, and it also lies for an injury to the relative rights when occasioned by force; as, for beating, wounding, and imprisoning10 a wife or servant, by which the plaintiff has sustained a loss. 9 Co. 113; 10 Co. 130. Vide Parties to actions; Per guod, and 1 Chit. Pr. 37.
5. - 2. The action of trespass is the proper remedy for injuries to personal property, which may be committed by the several acts of unlawfully striking, chasing, if alive, and carrying away to the damage of the plaintiff, a personal chattel11, 1 Saund. 84, n. 2, 3; F. N. B. 86; Bro. Trespass, pl. 407; Toll12. Executors, 112; Cro. Jac. 362, of which another is the owner and in possession; but a naked possession or right to immediate possession, is a sufficient title to support this action. 1 T. R. 480; and gee13 8. John. R. 432; 7 John. R. 535; 11 John. R. 377; Cro. Jac. 46; 1 Chit. Pl. 165.
6. - 3. Trespass is the proper remedy for the several acts of breaking through an enclosure, and coming into contact with any corporeal14 hereditament, of which another is the owner and in possession, and by which a damage has ensued. There is an ideal fence, reaching in extent upwards15, a superficie terrae usque ad caelum, which encircles every man's possessions, when he is owner of the surface, and downwards16 as far as his property descends17; the entry, therefore, is breaking through this enclosure, and this generally constitutes, by itself, a right of action. The plaintiff must be the owner, and in possession. 5 East, R. 485; 9 John. R. 61; 12 John. R. 183; 11 John. R. 385; Id. 140; 3 Hill, R. 26. There must have been some injury, however, to entitle the plaintiff to recover, for a man in a balloon may legally be said to break the close of the plaintiff, when passing over it, as he is wafted18 by the wind, yet as the owner's possession is not by that act incommoded, trespass could not probably be maintained; yet, if any part of the machinery19 were to fall upon the land, the aeronaut could not justify20 an entry into it to remove it, which proves that the act is not justifiable21. 19 John. 381 But the slightest injury, as treading down the grass, is sufficient. Vide 1 Chit. Pl. 173; 2 John, R. 357: 9 John. R. 113, 377; 2 Mass. R. 127; 4 Mass. R. 266; 4 John. R . 150.
7. - 4. It is a general rule that when the defendant22 has acted under regular process of a court of competent jurisdiction23, or of a single magistrate24 having jurisdiction of the subject-matter, it is a sufficient justification25 to him; but when the court has no jurisdiction and the process is wholly void, the defendant cannot justify under it.
8. But there are some cases, where an officer will not be justified by the warrant or authority of a court, having jurisdiction. These exceptions are generally founded on some matter of public policy or convenience; for example, when a warrant was issued against a mail carrier, though the officer was justified in serving the warrant, he was liable to an indictment26 for detaining such mail carrier under the warrant, for by thus detaining him, he was guilty of "wilfully27 obstructing28 or retarding29 the passage of the mail, or of the driver or carrier," contrary to the provisions of the act of congress of 1825, ch. 275, s. 9. 8 Law Rep. 77. See Ambassador; Justification.
9. - §2. The declaration should contain a concise30 statement of the injury complained of, whether to the person, personal or real property, and it must allege31 that the injury was conimitted vi et armis and contra pacem; in which particulars it differs from a declaration in case. See Case, remedies.
10. - §3. The general issue is not guilty. But as but few matters can be given in evidence under this plea, it is proper to plead special matters of defence.
11. - §4. The judgment is generally for the damages assessed by the jury, and for costs. When the judgment is for the defendant, it is that be recover his costs. Vide Irregularity; Regular and Irregular process. Vide, generally, Bro. Ab. h. t.; Nelson's Ab. h. t.; Bac. Ab. h. t.; Dane's Ab. h. t.; Com. Dig. h. t.; Vin. Ab. h. t.; the various American and English Digests, h. t.; 2 Phil. Ev. 131; Ham. N. P. 33 to 265; Chit. Pr. Index, h. t.; Rose. Civ. Ev. h. t.; Stark32. Ev. h. t.; Bouv. Inst. Index, h. t.
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