veſt, without being guilty of treſpaſs[1]: which humane proviſion ſeems borrowed from the moſaical law[2]. In like manner the common law warrants the hunting of ravenous beaſts of prey, as badgers and foxes, in another man’s land; becauſe the destroying ſuch creatures is profitable to the public[3]. But in caſes where a man miſdemeans himſelf, or makes an ill uſe of the authority with which the law entruſts him, he ſhall be accounted a treſpaſſer ab initio[4]: as if one comes into a tavern and will not go out in a reaſonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act ſhall affect and have relation back even to his firſt entry, and make the whole a treſpaſs[5]. But a bare non-feaſance, as not paying for the wine he calls for, will not make him a treſpaſſer; for this is only a breach of contract, for which the taverner ſhall have an action of debt or aſſumpſit againſt him[6]. So if a landlord diſtreined for rent, and wilfully killed the diſtreſs, this by the common law made him a treſpaſſer ab initio[7]: and ſo indeed would any other irregularity have done, till the ſtatute 11 Geo. II. c.19. which enacts that no ſubſequent irregularity of the landlord ſhall make his firſt entry a treſpaſſ; but the party injured ſhall have a ſpecial action on the caſe for the real ſpecific injury ſuſtained, unleſs tender of amends hath been made. But ſtill, if a reverſioner, who enters on pretence of ſeeing waſte, breaks the houſe, or ſtays there all night; or if the commoner who comes to tend his cattle, cuts down a tree; in theſe and ſimilar caſes the law judges that he entered for this unlawful purpoſe, and therefore, as the act which demonstrates ſuch his purpoſe is a treſpaſs, he ſhall be eſteemed a treſpaſſer ab initio[8]. So alſo in the caſe of hunting the fox or the badger, a man cannot juſtify breaking the ſoil, and digging him out of his earth: for though
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Ch. 12.
Wrongs.
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the
