TRESPASS, is any transgression of the law, under treason, felony, or misprision of either. Trespass signifies going beyond what is lawful; hence it follows, that every injurious act is, in the large sense of this word, a trespass. But as many injurious acts are distinguished by particular names, as treason, murder, rape, and other names, the legal sense of the word trespass is con fined to such injurious acts as have not acquired a particular name. Some tres passes are not accompanied with any force ; a trespass of this sort is called a trespass upon this case ; and the proper remedy for,the party injured, is by an ac tion upon the case. Other trespasses are accompanied with force, either actual or implied. If a trespass, which was accom panied with either actual or implied force, have been injurious to the public, the proper remedy in every such case is by an indictment, or by information. And if a trespass that was accompanied with an actual force, have been injurious only to one or more private persons, the offender is in every such case liable to an indict ment, or to an information ; for although the injury has in such case been only done to one or more private persons, as every trespass accompanied with actual force is a breach of the peace, it is to be considered and punished as 'an offence against the public.
A man is answerable for not only his own trespass, but that of his cattle also. And the, law gives the party injured a double remedy in this case, by permit ting him to distrain the cattle, thus doing damage, till the owner shall make him satisfaction. And in either of these ca
ses of trespass committed on another's land, eitlfer by a man himself or his cat tle, the action that lies is the action of trespass, with force and arms; for the law always couples the idea of force with that of intrusion upon the property of ano ther. In some cases trespass is justifia ble; or rather entry on anotber's land Or house shall not in these cases be account ed trespass ; as if a man came there to demand or pay money there payable, or to execute in a legal manner the process of the law. To prevent trifling and vexa tious actions of trespass, it is enacted, by 43 Eliz. c. 6, 22 and 23 Charles II. c. 9, and 8 and 9 William c. 2, that where a jury who try an action of trespass give less damages than 40s. the plaintiff shall be allowed no more costs than damages, unless the judge shall certify on the lack of the record, that the freehold or title of the land came chiefly in question. But if it shall appear, that the trespass was wil ful and malicious, the plaintiff shall have his Nil costs. And every trespass is wilful, wLeve the defendant has been forewarn.
ed ; and malicious, where the intent of the defendant appears to be to harass or in jure the plaintiff.