S4^i PLEA OF NOT GUILTY TO TRESPASS. 



The Coiu't of King's Bench held that where a person has an ex- 

 chisive right to dig turf and peaf, or a right to a sole and separate 

 pasture, for a time, trespass lies by him, though he has not the 

 absolute right to the soil ( Wilson v. Jlarlcrrfh). But ^w Wihnot J. : 

 "If this was only a right of common of turbary, trespass would not 

 lie " (/7^). In Pearce v. Lodge, which was an action of trespass for 

 taking and carrying away furze, the defendant pleaded the general issue, 

 and several special pleas, in which he claimed a right to estovers from 

 a common. It was held by the Court of Common Pleas that under 

 the general issue he might give evidence of an exclusive right of pos- 

 session, and that persons who had a right of common were competent 

 witnesses for the defendant, to prove that he was entitled to the exclu- 

 sive possession of the land from which the furze was taken. 



In an action for a trespass to land, the plea of Not guilty operates as 

 a denial that the defendant committed the trespass alleged in the place 

 mentioned ; but not as a denial of the plaintifTs possession, or right of 

 possession of that place, which, if intended to be denied, must be traversed 

 specially {Reg. Gen. H.T. 1853, PL, r. 16). In such action a regular 

 judgment may be set aside upon an affidavit of a defence on the merits, 

 or that there was no probability of the plaintiff's recovering more than 

 £5, or obtaining the judge's certificate under stat. 13 & 14 Vict. c. 61 

 {WihonN. Greenrogd). Under a plea to trespass upon land, that the 

 close is not the close of the plaintiff, the defendant may show a lawfal 

 right to tlie possession of the dose either in himself or in some other person 

 under whose authority he claims to have acted {Jones v. Chapman). 



No person has at common law a right to glean in the harvest field 

 {Steel V. Houghton). Neither have the poor of a parish legallg settled 

 (as such) any such right (/&.). 



In the case of « trespass in law merelg, ivithout actual force, the owner 

 of the close, &c., must first request the trespasser to depart before he 

 can justify layuig his hand on him for the purpose of remoWng him ; 

 and even if he refuse, he can only justify so much force as is necessary 

 to remove him {Green v. Goddard) : but if the trespasser use force, 

 then the owner may oppose force to force {ih.). Trespass lies for 

 working an estrag, though the original taking be admitted to be unlawful 

 {Oxleg v. Watts). 



Trespass will lie for hrealdng a dovecote. Pigeons hept in an ordlnarg 

 dovecote, having liberty of ingress or egress at all times by means of 

 holes at the top, may be the subjects of larceny {Reg. v. Cheafor) ; and 

 jier Curiam : " It lias been mistakenly supposed that Pctrke B., in Lalie's 

 case, decided that pigeons were not tiie sul)ject of larceny except strictly 

 confined; there is no question that they arc, even though they are 



