3o7 



TRESPASS. 



TRIAL. 



86S 



the nature of the parts immediately beneath it ; but the most com- 

 prehensive rule is to examine frequently what progress the saw makes, 

 and, if it have cut through one part of the circle much sooner than the 

 rest, to apply it somewhat obliquely, taking off the pressure of its edge 

 from that part. The most dangerous part of the operation is when the 

 bone is nearly cut through ; for it is necessary to avoid wounding the 

 dura mater, injuries of which are often followed by severe disease. To 

 escape these, it is advisable when a part of the circle is cut througlj, 

 and but a thin plate of bone remains in the rest of its extent, to 

 break through this by an elevator or proper forceps. And if, after 

 using either of these instruments, sharp points of bone are left pro- 

 jecting from the margin of the circular aperture, these must be 

 carefully cut or broken off. 



The use of the trephine is now much more rarely required than in 

 former times ; and this, not only because, since the time of Mr. Pott, 

 surgeons have learned that it is beneficial in few injuries of the head 

 beyond those in which there are distinct signs of compression of the 

 brain, but also because, in many of the cases in which it ia necessary 

 to remove portions of bone, the instrument called Hey's saw is far more 

 convenient. This consists of a handle and a shaft, much like those of 

 a common fork, of which the latter has fixed to its end a transverse 

 brood plate of steel, one end of which is a straight, the other a convex 

 saw. With this, portions of bone of almost any form and size can be 

 cut out both more easily and more rapidly than is possible with the 

 trephine. It is especially useful in those cases of fracture of the 

 skull in which angles of the broken bone are depressed, and for which 

 the trephine used to be applied chiefly for the purpose of introducing 

 the elevator ; for in these the depressed portion itself may be cut off, 

 and the elevator may, if necessary, be introduced at the aperture which 

 is thus made. 



TRESPASS is a wrong directly done to the person, to the goods and 

 chattels, or to the lands and tenements of any man. 



To the person it may be by menace, assault, battery, or maiming. 

 [ASSAULT.] To either dead or live chattels, by taking them away or 

 by injuring them. To land and tenements, by entering upon them and 

 injuring them. Trespass is the action by which a person in the actual 

 .clu.iive possession of property is protected against the forcible 

 interference with it by those who are not entitled to it. By this 

 action also he may recover damages for the injury dona to his 

 possessions. 



To constitute trespass, the act done must be wilful, not the result 

 of negligence, and have something of force in it, so as to be, according 

 to the construction of the law, against the peace; and the injury must 

 be the immediate, not the consequential result of the act. This is 

 rendered very intelligible by the instance given (1 Strange, 638) : " If 

 a man throw a log into the highway, and iu that act it hits me, I may 

 maintain trespass, because it is an immediate wrong ; but if, as it lies 

 there, I tumble over it, and receive an injury, I must bring an action 

 on the case." But it is not necessary that it should be done with the 

 design to cause the injury complained of, it may be done in mistake or 

 ignorance. Thus where one (hooting at a mark hit* a bystander, he is 

 guilty of trespass. A sheriff commits an act of trespass if he take* the 

 goods or arrests the person of B, mistaking him for A. A man is 

 in trespass for the injury done by hu cattle to the land of 

 another, whether he knew of their doing it or not. In trespass, all 

 persons who assist in the act done, or cause it to be done, or, if it is 

 for their use, assent to it afterwards, are considered as principals,' 

 although not actually present at the doing of the act. Where an act 

 is done by a servant while in the discharge of his business as servant, 

 the master is liable for the act in trespass. But if it be wilful on the 

 part of the servant, and not in discharge of his master's business, the 

 master is not liable. 



\V lii-re a person hag an authority or licence given him by lav, and he 

 takes advantage of that to commit an act of trespass, he is held to have 

 been a trespasser from the very commencement of the proceedings : as 

 where a landlord lawfully distrains a beast and afterwards works or 

 kills it, or an officer of the customs entitled to search " unpacks stuffs 

 and puts them in the dirt." If, however, the licence or authority has 

 proceeded from a private party, the trespass does not relate back, but 

 is confined to the mere act itself : as where parties enter a tavern, 

 drink and pay for wine, and afterwards commit a trespass that will 

 not make their entry a trespass. In cases where a trust is reposed, 

 trespass will lie for an act which ia at variance with the trust, as where 

 a lessee at will cuts down the timber. 



Various circumstances may exist which afford a justification for an 

 act which otherwise would amount to trespass. Thus a man is not 

 liable in trespass though his cattle have entered the field of another, 

 if they have done so in consequence of the neglect of the party into 

 whose lands they enter to repair the fences between the lands of the 

 parties ; though it i> no justification that the cattle have entered 

 because the land was open to the highvv'ay. Again, a man is justified 

 in entering upon the land* of another to retake his goods which have 

 been carried there by the occupier of those lands ; or to carry away 

 I >ought of the occupier, to repair a watercourse granted to him, 

 Ac. Hu is also justified in pulling down, for the safeguard of his own, 

 labour's house which is on fire. Where an act amounts to a 

 felony it is not competent for the party injured to treat it as a trespass. 

 ((Joiuyn'i ' Dig.,' ' Trespass.') 



In the case of malicious injuries done to property by trespassers, a 

 number of provisions have been enacted by 7 & 8 Geo. IV., o. 30. In 

 many cases a jurisdiction is given to magistrates to inflict punishment 

 on the offenders, to award cpmpensatioii to the parties injured, &c. 



TRET. [TARE.] 



TRIADS. [WELSH LANGUAGE AND LITERATURE.] 



TRIAL, the means adopted for the purpose of ascertaining facts iu 

 issue, whether civil or criminal. The kinds of trial in civil cases were 

 formerly seven in number, according to Blackstone ; and those which 

 he enumerates are, by record, by inspection or examination (divided 

 into two distinct kinds by Comyns), by certificate, by witnesses, by 

 wager of battle, by wager of law, and by jury. In reality the six first 

 might more properly be called modes of proof rather than kinds of 

 trial, which in truth divide themselves into two classes only : 1. That 

 where the court itself decides upon the evidence without the inter- 

 vention of a jury : 2. That where the jury decides. 



The first class contains the first six enumerated by Blackstone ; that 

 by record is where the existence of a certain record has been alleged in 

 the pleadings of an action and is denied by the pleadings on the other 

 side. The existence of it must be proved by the record itself. The 

 court itself tries this issue, and decides accordingly as such a record is, 

 or is not produced. [RECORD ; RECORDS.] 



Questions whether or not a party is a peer are thus proveable by the 

 king's patent ; whether an alien is friend or enemy, by production of 

 the treaty between his country and Great Britain, &c. 



By innpection was where it was supposed a matter might be clearly 

 made manifest on view to the court. In error by an infant, to reverse 

 a tine, if issue was taken as "to his nonage, he might be brought into 

 court and there inspected for the purpose of ascertaining the fact. If 

 on his appearance it remained doubtful, the court might question him, 

 or examine those likely to bo informed. So where a defendant pleaded 

 in abatement that the plaintiff was dead, and some one appeared and 

 said that he was the plaintiff, &c. The court had at all times the 

 power, if they felt doubt, to order a trial by jury. This mode of pro- 

 ceeding has now become obsolete. 



By examination is upon inquiry by the court into, for instance, the 

 customs and usages of a court. 



By certificate!. By certificate is where a fact is proved by the pro- 

 duction of a certificate from a certain official person qualified to grant 

 such certificate. Thus formerly the absence of a person from England 

 during war might be tried by the court, and proved by a certificate of 

 the " mareshal of the king's Lost." In the same manner the customs of 

 the city of London are proved by the certificate of their recorder. A 

 certificate of a bishop is proof respecting matters of ecclesiastical 

 jurisdiction, &c. 



By witnesses. In action of dower where the tenant pleads that the 

 husband is alive, the court may inquire of the fact by witnesses called 

 before themselves. Lord Coke mentions several other oases where the 

 court itself decides upon the examination of witnesses ; and he further 

 states that in all such cases each fact must be proved by two witnesses 

 at least. Although in the case of a trial by jury one witness, according 

 to the English law, is sufficient. 



. By wa'jer (if battle. That is by single combat, between the champions 

 of the parties. [APPEAL.] This proceeding was abolished by 59 

 Geo. III. c. 46. 



The proof by wager of lav was employed in an action of debt upon 

 simple contract, of detinue, account, and some others. It was effected 

 by the defendant coming into court attended by eleven of his neigh- 

 bours who were called compurgators. He then solemnly swore that he 

 did not owe the sum with which he was sought to be charged, or 

 detain the thing sought to be recovered, and the eleven compur- 

 gators swore that they believed him. The wager of law had already 

 fallen into disuse when it was wholly abolished by 3 & 4 Will. IV., 

 c. 42. 



The mode of trial always the one most in use both in civil and 

 criminal matters, was the trial by jury. [JcRY.] 



In criminal cases recourse was anciently had to the ordeal for the 

 purpose of ascertaining the guilt or innocence of a party [OiiDEAL], 

 and also to the single combat. [APPEAL.] It appears doubtful 

 whether the ordeal fell into disuse, or was abolished by statute. 

 Appeals in criminal cases were done away with by 59 Geo. III., c. 46. 



A peer of Great Britain indicted capitally is entitled to be tried by 

 the peers of parliament assembled in the court of the Lord High 

 Steward of Great Britain, who is a peer nominated to that office by the 

 crown for the occasion. The proceedings of the trial are carried on in 

 the same way as on a trial by jury, and judgment is pronounced 

 according to the opinion of the majority, which must consist of at 

 least twelve. Cases of impeachment by the Commons are also tried 

 by the Lords. 



A trial at Jar resembles the ordinary cases of trials by jury, 

 except that instead of its being presided over by a single judge, 

 all the judges of the court in which the action is brought are in 

 attendance. It is granted on application to the court, but only in 

 cases of great difficulty and importance. In informations exhibited by 

 the attorney-general, as law-officer of the crown, he is entitled to a 

 trial at bar. 



New Trial. After a trial has been already had, it is competent to 

 the court in which the action is brought to grant a new trial on an 



