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Bouvier's Law Dictionary, Revised 6th Edition (1856)

TRESPASS torts. An unlawful act committed with violence, ti et armis, to the
person, property or relative rights of another. Every felony includes a
trespass, in common parlance, such acts are not in general considered as
trespasses, yet they subject the offender to an action of trespass after his
conviction or acquittal. See civil remedy.
2. There is another kind of trespass, which is committed without force,
and is known by the name of trespass on the case. This is not generally
known by the name of trespass. See Case.
3. The following rules characterize the injuries which are denominated
trespasses, namely: 1. To determine whether an injury is a trespass, due
regard must be had to the nature of the right affected. A wrong with force
can only be offered to the absolute rights of personal liberty and security,
and to those of property corporeal; those of health, reputation and in
property incorporeal, together with the relative rights of persons, are,
strictly speaking, incapable of being injured with violence, because the
subject-matter to which they relate, exists in either case only in idea, and
is not to be seen or handled. An exception to this rule, however, often
obtains in the very instance of injuries to the relative rights of persons;
and wrongs offered to these last are frequently denominated trespasses, that
is, injuries with force.
4.-2. Those wrongs alone are characterized as trespasses the immediate
consequences of which are injurious to the plaintiff; if the damage
sustained is a remote consequence of the act, the injury falls under the
denomination of trespass on the case.
5.-3. No act is injurious but that which is unlawful; and therefore,
where the force applied to the plaintiff's property or person is the act of
the law itself, it constitutes no cause of complaint. Hamm. N. P. 34; 2
Phil. Ev. 131; Bac. Abr. h.t.; 15 East R. 614; Bouv. Inst. Index, h.t. As to
what will justify a trespass, see Battery.


TRESPASS, remedies. The name of an action, instituted for the recovery of
damages, for a wrong committed against the plaintiff, with immediate 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 mere non-feasance, nor when the matter affected was not
tangible.
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
judgment.
3.-Sec. 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 justified by legal proceedings.
4.-1. Trespass is the proper remedy for an assault and battery,
wounding, imprisonment, and the like, and it also lies for an injury to the
relative rights when occasioned by force; as, for beating, wounding, and
imprisoning 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 chattel, 1 Saund. 84, n. 2, 3; F. N. B. 86; Bro.
Trespass, pl. 407; Toll. 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
gee 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 corporeal
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 upwards, a
superficie terrae usque ad caelum, which encircles every man's possessions,
when he is owner of the surface, and downwards as far as his property
descends; 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 wafted 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 machinery were to fall upon the land, the aeronaut could not
justify an entry into it to remove it, which proves that the act is not
justifiable. 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 defendant has acted under
regular process of a court of competent jurisdiction, or of a single
magistrate having jurisdiction of the subject-matter, it is a sufficient
justification 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 indictment
for detaining such mail carrier under the warrant, for by thus detaining
him, he was guilty of "willfully obstructing or retarding 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.-Sec. 2. The declaration should contain a concise statement of the
injury complained of, whether to the person, personal or real property, and
it must allege that the injury was committed vi et armis and contra pacem;
in which particulars it differs from a declaration in case. See Case,
remedies.
10.-Sec. 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.-Sec. 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.; Stark. Ev. h.t.; Bouv. Inst. Index, h.t.

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