| 词汇 | Trespass2 |
| 释义 | `1`Trespass2 `2` "Legal Lexicon": Trespass is the proper remedy for the several acts of breaking through an enclosure, and coming into contact with any corporeal hereditament, of which another is the owner and in possession, and by which a damage has ensued. There is an ideal fence, reaching in extent upwards, a superficie terrae usque ad caelum, which encircles every man's possessions, when he is owner of the surface, and downwards as far as his property descends; the entry, therefore, is breaking through this enclosure, and this generally constitutes, by itself, a right of action. The plaintiff must be the owner, and in possession. There must have been some injury, however, to entitle the plaintiff to recover, for a man in a balloon may legally be said to break the close of the plaintiff, when passing over it, as he is wafted by the wind, yet as the owner's possession is not by that act incommoded, trespass could not probably be maintained; yet, if any part of the machinery were to fall upon the land, the aeronaut could not justify an entry into it to remove it, which proves that the act is not justifiable. But the slightest injury, as treading down the grass, is sufficient. It is a general rule that when the defendant has acted under regular process of a court of competent jurisdiction, or of a single magistrate having jurisdiction of the subject-matter, it is a sufficient justification to him; but when the court has no jurisdiction and the process is wholly void, the defendant cannot justify under it. But there are some cases, where an officer will not be justified by the warrant or authority of a court, having jurisdiction. These exceptions are generally founded on some matter of public policy or convenience; for example, when a warrant was issued against a mail carrier, though the officer was justified in serving the warrant, he was liable to an indictment for detaining such mail carrier under the warrant, for by thus detaining him, he was guilty of "wilfully obstructing or retarding the passage of the mail, or of the driver or carrier," contrary to the provisions of the act of Congress of 1825, The declaration should contain a concise statement of the injury complained of, whether to the person, personal or real property, and it must allege that the injury was conimitted vi et armis and contra pacem; in which particulars it differs from a declaration in case. The general issue is not guilty. But as but few matters can be given in evidence under this plea, it is proper to plead special matters of defence. The judgment is generally for the damages assessed by the jury, and for costs. When the judgment is for the defendant, it is that be recover his costs. --b-- |
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