permit any man to pursue his remedy at such risks; and therefore we think it unnecessary for the plaintiff to show that there was an actual breach of the peace; and the imminent risk of it is sufficiently shown by the averment in the declaration that the plaintiff was in his own house at the time when the defendant committed the act complained of."

But this case does not appear to have given satisfaction except when confined to its facts. In Burling v. Read, 11 Q. B. 904, the plaintiff declared in a similar manner for pulling down his workshop while he was inhabiting and present in it, to which the defendant simply pleaded that the workshop was his, and not the plaintiff's; and the fact was found to be so. The allegation that the plaintiff was present in the workshop when it was being pulled down was held immaterial. "The plaintiff," said Lord Campbell, is a trespasser. What right can he have to prevent the owner of the soil from pulling down the house? I pronounce no opinion against Perry v. Fitzhowe. I assume it to be right. But that case is clearly distinguishable from this, where the house is not the dwelling-house of the plaintiff, and where the act complained of is the act, not of a commoner who seeks to abate a nuisance, but of the owner of the house." Erle, J., said it was important to observe this distinction, otherwise parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut, and occupying it before morning. "It should be made known," said he, that that is a misapprehension of Perry v. Fitzhowe."

In Jones v. Jones, 1 Hurl. & C. 1, Pollock, C. B., in the course of the argument, said: "The argument that

an act is unlawful because it may lead to a breach of the peace is very vague. What has a stronger tendency to a breach of the peace than the common molliter manus imposuit, where one man comes into actual collision with another?" The case was very like Perry v. Fitzhugh; and the court said, "We decline to express any opinion as to whether, if this question had come before us for the first time, we should have concurred in the judgment pronounced by the Court of Queen's Bench in Perry v. Fitzhowe; but seeing that the question is of no importance, except as regards costs, we think it better, as the court is not unanimous, to abide by that decision, and leave the defendant, if dissatisfied with it, to take the case to a court of error.”

Perry v. Fitzhowe, has also been departed from on the point of notice. In Davies v. Williams, 16 Q. B. 546, 555, Wightman, J., in delivering the judgment, said: " There is obviously a wide distinction between the case of parties suddenly coming to the dwelling-house alleged to be a nuisance, and in which the occupier and his family are actually dwelling, and in the house, and without notice or demand forcibly pulling it down, and a case in which the occupier of the house has had previous notice and been requested to remove the building, but has persisted in remaining in the house with his family in defiance of the notice and request." And the pleading in Perry v. Fitzhowe was criticised in that "those most important allegations" of notice and request were omitted.

Whether the mere taking possession of a chattel by virtue of a sale from one who had no authority to sell is a trespass without a demand by the owner is a point as to which the old

authorities are not clear, and the modern authorities are in conflict. In Massachusetts it has been decided that the defendant is liable, Mr. Justice Wilde dissenting. Stanley v. Gaylord, 1 Cush. 536, in which the early cases are reviewed. The majority of the court thought that trover would lie in such case, and held that, as a consequence, trespass could be maintained. Wilde, J., denied that trover could be brought in such a case, and thought that the defendant should have had an opportunity, by a demand made, to surrender the property before his possession could be regarded as tortious.

In Maine and New Hampshire the rule in Stanley v. Gaylord prevails. Galvin v. Bacon, 2 Fairf. 28; Hyde v. Noble, 13 N. H. 494.

In New York the contrary is held. Marshall v. Davis, 1 Wend. 109; Nash v. Mosher, 19 Wend. 431; Barrett v. Warren, 3 Hill, 348; Pierce v. Van Dyke, 6 Hill, 613. But in this State a distinction is made between the case of a delivery by the seller and a taking by the purchaser without delivery. Marshall v. Davis," said the court in Nash v. Mosher, "seems to put the right to the action on the non-consent of the bailee. If it be delivered by the bailee, trespass lies not against the person to whom it is delivered. If sold or taken without delivery, trespass would lie for the taking; and such is the distinction which seems plainly to follow from the authorities cited by the Chief Justice, and the original dicta on which they rest." "A like distinction is made in respect to a gift or sale of

goods by an infant; if he deliver them, trespass lies not, but if taken without delivery, it lies. See Vin. Tresp. M, 12." See further, note on Conversion,

post.

It may be worthy of notice that in Stanley v. Gaylord, supra, the property was taken by the defendant without delivery; but the case was not decided upon this ground.

The foregoing principles result from the very definition of a trespass which, when applied to property, means a wrongful entry upon, or taking, or injury of real or personal property of a corporeal and tangible nature. 2 Hilliard, Torts, 71 (3d ed.). And this show's one of the distinctions between trespass and trover. The latter action is a remedy only for the conversion of personal property. It results that a judgment in trespass is not necessarily a bar to an action of trover in respect of the same goods. Ib. p. 73. And the author just cited refers to the following case: "Thus, if, in trespass for taking cattle, the defendant justifies for a heriot, and obtains a verdict, yet, if it appear that the plaintiff mistook the nature of his action, and that he ought to have brought trover instead of trespass, this recovery cannot be pleaded in bar to trover for the cattle." Putt v. Rawstern, 3 Mod. 1. This case appears to be erroneously reported in 2 Mod. 318. See 2 W. Black. 779; 3 Mod. 2, note.

The principal case, Malcom v. Spoor, illustrates the principle that though a person's original act or conduct may have been lawful, there may afterwards be such an abuse of the powers or privileges which the law confers upon

him as will render him liable to an action as for a trespass in the first instance. 1 Hilliard, Torts, 113 (4th ed.).

Upon this principle rests the old doctrine of trespass ab initio, a doctrine which, by the quite general abolition of the distinction between trespass and case, has become of less importance than it formerly possessed.

It is worthy of notice that in those cases where the original entry or act was lawful (being justified by the license of the plaintiff or of the law), the subsequent abuse must be of such a character as to be in itself actionable. Adams v. Rivers, 11 Barb. 390. In this case Mr. Justice Willard, referring to the Six Carpenters' Case, said: "In all the cases put by Coke, the acts complained of as abuses of the power were distinct acts of trespass. And it seems to be the better opinion that a man cannot become a trespasser ab initio by any act or omission which would not itself, if not protected by a license, be the subject of trespass. Thus, in Shorland v. Govett, 5 Barn. & C. 485, the sheriff's officer justified a trespass under a fi. fa., and it was held that a demand by the officer of more than was due by the warrant did not make him a trespasser from the beginning. The reason is, that the original levy was lawful, and extortion is not an act for which trespass will lie." And the learned judge proceeds to refer to cases in which it is held that the subject of the action must be a positive act, and not a mere nonfeasance. Gates v. Lounsbury, 20 Johns. 429; Gardner v. Campbell, 15 Johns. 402; Hale v. Clark, 19 Wend. 498. But see Adams v. Adams, 13 Pick. 384; Bond v. Wilder, 16 Vt. 393.

In the Six Carpenters' Case, the

court took a distinction between a license by law and a license by the party.

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It was resolved," says the report (8 Coke, 146), "when entry, authority, or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio; but where an entry, authority, or license is given by the party, and he [to whom it is given] abuses it, there he must be punished for his abuse, but shall not be a trespasser ab initio. Another reason of this difference is, that in the case of a general authority or license of law, the law adjudges by the subsequent act quo animo, or to what intent, he entered, for acta exteriora indicant interiora secreta. Vide 11 Hen. 4, 75 b. But when the party gives an authority or license himself to do any thing, he cannot for any subsequent cause punish that which is done by his own authority or license." That is, the entry cannot be made unlawful in this case by any subsequent abuse; while it is otherwise where the license was given by law. In the former case the subsequent abuse is the gist of the action; in the latter the entry becomes the gist, and the abuse is only aggravation.

In Allen v. Crofoot, 5 Wend. 506, 509, it is said that a better reason for the above distinction is given in Bacon's Abr. Trespass, B, to wit: Where the law has given an authority, it is reasonable that it should make void every thing done by the abuse of that authority, and leave the abuser as if he had done every thing without authority. But where a man who was under no necessity to give an authority does so, and the person receiving the authority abuses it, there is no reason why the law should interpose to make void every thing done by such abuse, because it was the man's folly to trust another with