ANTHONY V. HANEY and HARDING.

(8 Bing. 187. Common Pleas, England, Hilary Term, 1832.)

Trespass quare clausum fregit. Trespass for entering plaintiff's close. Plea, that certain goods of defendants' were there, and that they entered to take them, doing no unnecessary damage. Held, ill.

TRESPASS.

The declaration stated that defendants, on the 8th of November, 1830, and on divers other days, &c., between that day and the commencement of the suit, broke and entered plaintiff's close at Much Haddon, in the county of Hertford; and with feet in walking trod down, trampled upon, and consumed and spoiled plaintiff's grass, and with cattle and wheels of divers carts, &c., crushed, damaged, and spoiled other grass; and with the feet of the cattle and the wheels of the carts subverted, &c., the earth and soil of the close, and then and there put, placed, and laid down divers quantities, to wit, 5,000 bricks, &c., in and upon the said close, and kept and continued the same without leave or license and against the will of the plaintiff, and thereby greatly encumbered the close, and pulled down, prostrated, and destroyed one barn, three out-houses, and three leantos of plaintiff, and in so doing dug up and subverted the earth, and made divers holes therein, and seized, took, and carried away the materials of the said barn, out-houses, and leantos.

There was a second count, for seizing, taking, and carrying away a cart and divers goods and chattels of plaintiff; and a third count, for breaking and entering a certain other barn, outhouses, and leantos of plaintiff, &c.

Plea, first, the general issue, on which issue was joined; second, that before and at the said time when, &c., in the said first count mentioned, the defendant, John Haney, was the owner of and entitled unto a certain barn, three out-houses, and three leantos, and divers goods and chattels, to wit, 10,000 bricks,. 10,000 tiles, 5,000 planks of wood, 5,000 joists, 5,000 ties, 5,000 girders, 5,000 pieces of wood, 5,000 loads of timber, and 1,000 weight of iron, of great value, to wit, of the value of 2007., then respectively standing and being in and upon the said close of the said plaintiff, in which, &c.; wherefore the said defendant, John Haney, in his own right, and James Haney and Joseph Harding,

as the servants of the said John Haney, by his command, at the said several times when, &c., in the said first count mentioned, entered into and upon the said close in which, &c., in order to pull down, remove, take, and carry away the said barn, outhouses, and leantos, and to take and carry away the said goods and chattels, and did then and there pull down the said barn, out-houses, and leantos, and did take and carry away the materials thereof, and the said goods and chattels, in the said carts, wagons, and other carriages drawn by the said cattle, from and out of the said close in which, &c., and in so doing, they, the said defendants, at the said several times when, &c., in the said first count mentioned, did necessarily and unavoidably, with their feet in walking, a little tread down, trample upon, consume, and spoil a little of the grass there then growing and being, and did, with the wheels of the said carts, wagons, and other carriages, a little crush, damage, and spoil the said grass there also growing, and with the feet of the said cattle, and with the wheels of the said carts, wagons, and other carriages, did a little subvert, damage, and spoil the earth and soil of the said close, and did necessarily and unavoidably put, place, and lay in and upon the said close in which, &c., the said bricks, tiles, wood, and rubbish in the said first count mentioned, being part of the materials of the said barn, out-houses, and leantos, and there keep and continue the same for a short time, to wit, until the same could be put in the said carts, wagons, and other carriages to be removed from the said close, doing no unnecessary damage to the said plaintiff on the occasions aforesaid, as they lawfully might for the cause aforesaid, which are the said several supposed trespasses in the introductory part of this plea mentioned. Demurrer and joinder. Stephen, Serjt., for the demurrer, was not called. Bompas, Serjt., supported the plea.

TINDAL, C. J. The second plea in this case cannot be supported in law; and it is bad on a ground much short of that which has been argued to-day. The defendant Haney states, as the ground of his right for entering the plaintiff's close, that he was the owner of a certain barn, three out-houses, three leantos, and certain chattels standing and being on the plaintiff's close, and then goes on to justify the trespass in question. I cannot collect from this statement but that the barn, leantos, &c., were standing on the close in the ordinary acceptation of the term, that is, were affixed to the freehold; and the rather, because the

defendant admits that he dug up the soil of the plaintiff in order to remove the barn; in other words, that he entered the soil of another and broke it up to get what he claimed as his own. That would be to take the law into his own hands, and to render an action of ejectment unnecessary. If so, the plea, which is bad in part, is, under the common rule, bad for the whole, and judgment must be given for the plaintiff. But we are unwilling to decide the case on so narrow a ground; for even if the barn had not been affixed to the freehold, the defendant has shown on this plea no justification of his entering to take it away. In none of the cases referred to has the plea been allowed, except where the defendant has shown the circumstances under which his property was placed on the soil of another. Here the defendant has confined himself to the statement that they were there, without attempting to show how. To allow such a statement to be a justification for entering the soil of another would be opening too wide a door to parties to attempt righting themselves without resorting to law, and would necessarily tend to breach of the peace. Let us examine two or three of the cases which have been cited on the part of the defendant. And first, that of fruit falling into the ground of another; that falls under the head of an accident, for which the defendant is not responsible, and which he shows by his plea before he can make out a right to enter. So in the case of a tree which is blown down, or through decay falls into the ground of a neighbor, the owner may enter and take it. But the distinction is taken by Latch, who says that if it had fallen in that direction from the owner's cutting it, he could not justify the entry. As to the cases where goods have been feloniously taken, and the owner pursues to obtain possession, the principle is laid down by Blackstone, 3 Comm. 4, who says: "As the public peace is a superior consideration to any one man's private property, and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or

entering on the grounds of a third person, to take him, except he be feloniously stolen, but must have recourse to an action at law." A case has been suggested in which the owner might have no remedy, where the occupier of the soil might refuse to deliver up the property, or to make any answer to the owners' demand; but a jury might be induced to presume a conversion from such silence, or, at any rate, the owner might in such a case enter and take his property, subject to the payment of any damage he might commit.

PARKE, J. I am of the same opinion. The distinction is clearly laid down by Blackstone in the case of goods feloniously taken, who says, "If my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen, but must have recourse to an action at law." Upon these pleas it rather appears that the property claimed by the defendant was attached to the freehold, than that it was a chattel in the nature of a Dutch barn; for it is admitted that he dug holes in order to remove it. The defendant is not, as it has been contended, without remedy; for he might sue in trover after a proper demand, and if his application were met with continued silence, the jury might from that presume a con

version.

BOSANQUET, J. I am of opinion that this plea is no answer to the trespass with which the defendant is charged. It is put broadly and nakedly that the defendant has a right to enter the soil of another to take his own property, without showing the circumstances under which it came there. The case has been argued on the ground of necessity; but on that ground, at least, the necessity should be shown. There are, no doubt, various cases in which it has been held that the party is entitled to enter; but in all of them the peculiar circumstances have been stated on which the party has rested his claim to enter. It would be too much to infer that the party may enter in all cases where his goods are on the soil of another, because he may enter in some where he shows sufficient grounds for so doing.

ALDERSON, J. I am of the same opinion. The difficulty suggested as to an action of trover would apply to all cases of trover where a demand is necessary. Judgment for plaintiff.

1

NANCY MALCOLM v. ELIJAH K. SPOOR.

(12 Met. 279. Supreme Court, Massachusetts, March Term, 1847.)

Trespass ab initio. An officer who enters a house by authority of law, and attaches goods therein, becomes a trespasser ab initio by placing there an unfit person, as keeper of the goods, against the remonstrance of the owner of the house.

SHAW, C. J. This was an action of trespass, in which the plaintiff declared against the defendant for breaking and entering her house, &c. The defendant justified under a writ directed to him, as constable, and commanding him to attach the plaintiff's household furniture.

The case comes before us on exceptions, from which it appears that the defendant was a constable, and that he entered the plaintiff's house, having a writ against her, and attached her furniture; that he took with him into the house a man who was intoxicated, whom he made keeper of the attached furniture, and left in the house in charge of the furniture, although the plaintiff objected to his remaining there as keeper, on account of his intoxication.

The exceptions also set forth the violent conduct of the keeper, and other matters, which are not material to the decisions of the question that is brought before us.

The Court of Common Pleas, in which the trial was had, instructed the jury that if the defendant, under color of his process, took with him a grossly intoxicated and clearly unfit person into the plaintiff's house, and left him therein as keeper, this was such an abuse of his authority as made him a trespasser ab initio; and that the defendant was answerable for all the acts of such keeper, done in pursuance of previous concert between them, or by direction of the defendant. A verdict was returned for the plaintiff; and the question whether these instructions were right has been submitted to us without argument.

It has been held as a rule of the common law, ever since the Six Carpenters' Case, 8 Co. 146, that where one is acting under an authority conferred by law, an abuse of his authority renders him a trespasser ab initio. Melville v. Brown, 15 Mass. 82. In the case before us, the defendant had authority by law to enter