TRESPASS. 343 



CHAPTER XI. 



TRESPASS AND GAME. 



To entitle a man to hring trespass, he must at the time when the act 

 was done which constitutes the trespass, either have the actual pos- 

 session in him of the thing which is the object of the trespass, or else 

 he must have a constructive possession, in respect of the right being 

 actually vested in him {Smith v. Miller). 



Where A. commissioned her brother to buy her a cow, and a fort- 

 night afterwards he bought her one, but as it was being driven home, 

 and before she had assented to the purchase, the cow was taken by 

 the defendant ; it was held by Lord Demnan C.J. that A. had such a 

 property in the cow as would enable her to maintain trespass ; the 

 evidence here showed a property in the plaintiff at her election ; and by 

 bringing the action she had elected to take to the bargain and to make 

 the cow hers {T/wmas v. Philips). 



The plaintiffs, churchwardens and overseers of a piarish, ivho inclosed 

 parcel of a waste under statute 39 Geo. III. c. 12, and 1 & 2 Will. IV. 

 c. 42, were held to have a sufficient possession to maintain trespass 

 against an inhabitant of the parish, who destroyed their fence, without 

 establishing any right of common, notwithstanding they failed to show 

 the consent of the lord of the manor to their inclosure {Matson v. 

 Cook). A possessory right, sufficient to sustain trespiass, may be resorted 

 to, even after it has appeared that the plaintiff has in fact no legal 

 title ; and when the locus in cpio is the soil of a street, and the only 

 actual possession he sets up is by his recent commencement of a 

 building upon the hcus in quo, the pulling down of the incomplete 

 walls of which was the trespass complained of, and which were pulled 

 down on the suggestion that they constituted a nuisance to the high- 

 way {Every v. Smith). The defendants, who were highway commis- 

 sioners, pleaded Not possessed, and justified in abatement of a nuisance 

 on the highway, but did not justify under the owner of the soil. And 

 2)er Bramivell B. : " They not having justified under the owner of 

 the soil, that would be a trespass, at the suit of the parties in actual 

 possession" {ib.). 



