Page:William Blackstone, Commentaries on the Laws of England (1st ed, 1768, vol III).djvu/226

214 the law warrants the hunting of uch noxious animals for the public good, yet it is held that uch things mut be done in an ordinary and uual manner; therefore that being an ordinary coure to kill them, viz. by hunting, the court held that the digging for them was unlawful.

may alo jutify in an action of trepas, on account of the freehold and right of entry being in himelf; and this defence brings the title of the etate in quetion. This is therefore one of the ways devied, ince the diue of real actions, to try the property of etates; though it is not o uual as that by ejectment, becaue that, being now a mixed action, not only gives damages for the ejection, but alo poeion of the land: whereas in trepas, which is merely a peronal uit, the right can be only acertained, but no poeion delivered; nothing being recovered but damages for the wrong committed.

order to prevent trifling and vexatious actions of trepas, as well as other peronal actions, it is (inter alia) enacted by tatutes 43 Eliz. c. 6. and 22 and 23 Car. II. c. 9. §. 136. that where the jury who try an action of trepas, give les damages than forty hillings, the plaintiff hall be allowed no more cots than damages; unles the judge hall certify under his hand that the freehold or title of the land came chiefly in quetion. But this rule now admits of two exceptions more, which have been made by ubequent tatutes. One is by tatute 8 & 9 W. III. c. 11. which enacts, that in all actions of trepas, wherein it hall appear that the trepas was wilful and malicious, and it be o certified by the judge, the plaintiff hall recover full cots. Every trepas is wilful, where the defendant has notice, and is epecially forewarned not to come on the land; as every trepas is malicious, though the damage may not amount to forty hillings, where the intent of the defendant plainly appears to be to Rh