358 FORCIBLE ENTRY ON COMMON OF PASTURE. 



yciirs, and if that will give liim a title I will give hini leave to move ; 

 but iu my opiuiou every time Cox the owner put his foot on the land, it was 

 so far iu his possession that the statute would begin to run from the 

 time he was last on it. Mr. Bovill moved in the Common Pleas, and 

 took nothing {Allen v. England). 



Forcible entry in exercise of riijht of common of imsture. — To an action of 

 trespass for breaking and entering, and pulling down, and destroying 

 the plaintiff's house, whilst he and his family were therein, and assault- 

 ing the plaintiff, and by so pulling it down endangering the lives and 

 injuring the persons of the plaintiff' and his family, and ejecting them 

 therefrom, and taking the materials of the house ; the defendant as to 

 the breaking and entering and pulling down and destroying the house, 

 and taking the materials, justilied in the exercise of a right of common 

 of pasture over the land, on which the plea alleged the house was wrong- 

 fully erected, so that without pulling it down the defendant could not 

 enjoy the right of common of pastui'e. It was held by the majority of 

 the Court of Exchequer that the case was governed by Perry v. Fitzhoive 

 (8 Q. B. 757, 15 L. J. (N. S.), Q. B. 239), which is an authority that 

 a house cannot be pulled down, a man being in it, and that the plea did 

 not answer the action. The Court intimated that it was doubtful whe- 

 ther if the case had been before them for the first time they would have 

 concurred in the judgment pronounced by the Court of Queen's Bench 

 in Perry v. Fitzhowe, but that as the question was of no importance to 

 the parties in the cause, except as to the question of costs, it was better 

 to abiile by that decision. And per Wilde B., " Burling y. Read {11 

 Q. B. 890, and 19 L. J. (N. S.), Q. B. 291), and Perry v. Fitshowe estab- 

 blish a clear distinction between a man entering on his own land, and 

 an entry to abate a mere infringement of a right of common " {Jones v. 

 Jones). 



Construction of the Malicious Trespass Act. — The occupier of land found 

 a man (employed by the owner) felling trees on to the land in such a way 

 as to damage growing barley ; and after again and again desiring him 

 to desist gave him into custody for wilfully damaging the barley. In 

 an action of trespass, the man recovered £20 ; and the judge having 

 declined to certify for costs, a suggestion was entered to deprive him 

 of ct>sts, on the ground that the defendant was acting in pursuance of 

 the Malicious Trespass Act (7 & 8 Geo. IV., c. 30, s. 22). BlacMurn 

 J. on the trial of the suggestion having left it to the jury to say whether 

 the defendant really and reasonal)ly believed he was acting according to 

 law, and they found in the affirmative, it was held that whether the 

 question was for the judge or the jury the verdict was right, and semhle 

 that it was rightly left to the jury {Norwood v. Pitt). 



