the law warrants the hunting of ſuch noxious animals for the public good, yet it is held[1] that ſuch things muſt be done in an ordinary and uſual manner; therefore that being an ordinary courſe to kill them, viz. by hunting, the court held that the digging for them was unlawful.
A man may alſo juſtify in an action of treſpaſs, on account of the freehold and right of entry being in himſelf; and this defence brings the title of the eſtate in queſtion. This is therefore one of the ways deviſed, ſince the diſuſe of real actions, to try the property of eſtates; though it is not ſo uſual as that by ejectment, becauſe that, being now a mixed action, not only gives damages for the ejection, but alſo poſſeſſion of the land: whereas in treſpaſs, which is merely a perſonal ſuit, the right can be only aſcertained, but no poſſeſſion delivered; nothing being recovered but damages for the wrong committed.
In order to prevent trifling and vexatious actions of treſpaſs, as well as other perſonal actions, it is (inter alia) enacted by ſtatutes 43 Eliz. c. 6. and 22 and 23 Car. II. c. 9. §. 136. that where the jury who try an action of treſpaſs, give leſs damages than forty ſhillings, the plaintiff ſhall be allowed no more coſts than damages; unleſs the judge ſhall certify under his hand that the freehold or title of the land came chiefly in queſtion. But this rule now admits of two exceptions more, which have been made by ſubſequent ſtatutes. One is by ſtatute 8 & 9 W. III. c. 11. which enacts, that in all actions of treſpaſs, wherein it ſhall appear that the treſpaſs was wilful and malicious, and it be ſo certified by the judge, the plaintiff ſhall recover full coſts. Every treſpaſs is wilful, where the defendant has notice, and is eſpecially forewarned not to come on the land; as every treſpaſs is malicious, though the damage may not amount to forty ſhillings, where the intent of the defendant plainly appears to be to
- ↑ Cro. Jac. 321.
