Odger's English Common Law

DEFENCES,. • 453
prevent 1
the commission of a crime or the spreading of a fire ;
so, again, is
the entry of a commoner on the common to exercise any right of common
there, or of a landlord to see if any waste be committed on the estate, or
any breach of a covenant to repair. So, too, the inhabitants of a particular
township or place may by immemorial custom possess the right to enter
on the land of another in order to play lawful games there or to draw
water. 2
But in all these cases the authority under which the
defendant entered was vested in him for a specific purpose. If
after entry he commits any act of trespass unconnected with
this purpose, such an act destroys his whole defence, and he
becomes what is called a trespasser ab initio.
Thus, where a landlord, after entering on his tenant's land to distrain
for rent due to him, works or kills the animals or cattle which he has
distrained ;
or where a lessor, who has entered on demised premises to see if
his tenant is committing waste, breaks open the house or stays there all night
or where a commoner cuts down a tree growing on the common—in each
of these cases the lawful entry will not excuse the subsequent trespass.
Again, where the plaintiff used a highway, the soil of which was vested
in the defendant, not for the purpose of passing and repassing, but of
interfering with the defendant's right of shooting over certain moors
which adjoined the highway, it was held that the plaintiff was a trespasser
although he was on a highway. 3 " If a person uses the soil of the highway
for any purpose other than that in respect of which the dedication was
made, . . . he is a trespasser." 4
The defendant may also set up as a defence that he had
leave and licence from the plaintiff to enter on his land. Such
leave and licence may be either express or implied. If a
shopkeeper leaves his shop door open during business hours,
he will be deemed to give permission to any one to enter his
shop who desires to purchase any of his wares or to inspect
his stock-in-trade. So any one is entitled to enter, during
the proper hours of the day, an inn or public-house without
any special leave from the publican, because by the pro-
fession of his trade he invites all and any, subject to statutory
1 Handcock v. Baker and others (1800), 2 Bos. & P. 260 ; Cope v. Sharpe, [1912]
1 K. B. 496.
a See Customary Bights, post, p. 580.
s Harrison v. Duke of Rutland, [1893] 1 Q. B. 142. Proof of such misconduct in
the defendant will also increase the amount of damages recoverable : see Merest t.
Harwy (1814), 5 Taunt. 442, and post, Book V., Chap. XXI., Aggravation of
Damages.
* Per Lopes, L. J, [1893] 1 Q. B. at p. Ho.
;