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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER IX.

WRONGS TO POSSESSION AND PROPERTY.

I.—

Duties regarding Property generally.

Absolute duty to respect others’ property.Every kind of intermeddling with anything which is the subject of property is a wrong unless it is either authorized by some person entitled to deal with the thing in that particular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mistaken supposition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mistake in acting for our own interest(a) , or even an honest intention to act for the benefit of the true owner(b) , will avail us nothing if we transgress.

Title, justification, excuse. A man may be entitled in divers ways to deal with property moveable or immoveable, and within a wider or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific purpose. It belongs to the law of property to tell us what are the rights of owners and possessors, and by what acts in the law they may be created, transferred, or destroyed. Again, a man may have the right of using property to a limited extent, and either to the exclusion of all other persons besides the owner or possessor, or concurrently with other persons, without himself being either owner or possessor. The definition of such rights belongs to that part of the law of property which deals with easements and profits. Again, he may be authorized by law, for the execution of justice or for purposes of public safety and convenience, or under exceptional conditions for the true owner’s benefit, to interfere with property to which he has no title and does not make any claim. We have seen somewhat of this in the chapter of “General Exceptions.” Again, he may be justified by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known as a licence.

Title dependent on contract. Title to property, and authority to deal with property in specified ways, are commonly conferred by contract or in pursuance of some contract. Thus it oftentimes depends on the existence or on the true construction of a contract whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another purchaser who buys in good faith, reasonably supposing that he is dealing with the true owner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him, on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate purchaser in good faith has a good title. But the circumstances of the fraud may have been such that there was no true consent on the part of the first owner, no contract at all, and no right of property whatever, not so much as lawful possession, acquired by the apparent purchaser. If so, the defrauder has not any lawful interest which he can transfer even to a person acting in good faith and reasonably: and the ultimate purchaser acquires no manner of title, and notwithstanding his innocence is liable as a wrong-doer(c) . Principles essentially similar, but affected in their application, and not unfrequently disguised, by the complexity of our law of real property, hold good of dealings with land(d) .

Exceptional protection of certain dealings in good faith. Acts of persons dealing in good faith with an apparent owner may be, and have been, protected in various ways and to a varying extent by different systems of law. The purchaser from an apparent owner may acquire, as under the common-law rule of sales in market overt, a better title than his vendor had; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Acts(e) ; or one who has innocently dealt with goods which he is now unable to produce or restore specifically may be held personally excused, saving the true owner’s liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be available under a contract of sale or a warranty for the person dispossessed by the true owner. Excuse of this kind is however rarely admitted, though much the same result may sometimes be arrived at on special technical grounds.

The rights and remedies known to the common law are possessory. It would seem that, apart from doubtful questions of title (which no system of law can wholly avoid), there ought not to be great difficulty in determining what amounts to a wrong to property, and who is the person wronged. But in fact the common law does present great difficulties; and this because its remedies were bound, until a recent date, to medieval forms, and limited by medieval conceptions. The forms of action brought not Ownership but Possession to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full existence or being capable of transfer and succession unless in close connexion with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole(f) . An owner in possession was protected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it continues so with regard to chattels. For many purposes the “true owner” of goods is the person, and only the person, entitled to immediate possession. The term is a short and convenient one, and may be used without scruple, but on condition of being rightly understood. Regularly the common law protects ownership only through possessory rights and remedies. The reversion or reversionary interest of the freeholder or general owner out of possession is indeed well known to our authorities, and by conveyancers it is regarded as a present estate or interest. But when it has to be defended in a court of common law, the forms of action treat it rather as the shadow cast before by a right to possess at a time still to come. It has been said that there is no doctrine of possession in our law. The reason of this appearance, an appearance capable of deceiving even learned persons, is that possession has all but swallowed up ownership; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a common phrase in our books that possession is prima facie evidence of title. It would be less intelligible at first sight, but not less correct, to say that in the developed system of common law pleading and procedure, as it existed down to the middle of this century, proof of title was material only as evidence of a right to possess. And it must be remembered that although forms of action are no longer with us, causes of action are what they were, and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin); if at the time of the wrong done the person entitled to possess was not in actual legal possession, his remedy was detinue, or, in the developed system, trover. An owner who had neither possession nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical name.

Possession and detention. Notwithstanding first appearances, then, the common law has a theory of possession, and a highly elaborated one. To discuss it fully would not be appropriate here(g) ; but we have to bear in mind that it must be known who is in legal possession of any given subject of property, and who is entitled to possess it, before we can tell what wrongs are capable of being committed, and against whom, by the person having physical control over it, or by others. Legal possession does not necessarily coincide either with actual physical control or the present power thereof (the “detention” of Continental terminology), or with the right to possess (constantly called “property” in our books); and it need not have a rightful origin. The separation of detention, possession in the strict sense, and the right to possess, is both possible and frequent. A lends a book to B., gratuitously and not for any fixed time, and B. gives the book to his servant to carry home. Here B.’s servant has physical possession, better named custody or detention, but neither legal possession(h) nor the right to possess; B. has legal and rightful possession, and the right to possess as against every one but A.; while A. has not possession, but has a right to possess which he can make absolute at any moment by determining the bailment to B., and which the law regards for many purposes as if it were already absolute. As to an actual legal possession (besides and beyond mere detention) being acquired by wrong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very substance of trespass by taking and carrying away goods (debonis asportatis), and as such it was and is a necessary condition of the offence of larceny at common law.

The common law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter course. In Roman law there is no such general tendency, though the results are often similar(i) .

Trespass and conversion. Trespass is the wrongful disturbance of another person’s possession of land(j) or goods. Therefore it cannot be committed by a person who is himself in possession(k) ; though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control, make himself a mere trespasser. But a possessor may do wrong in other ways. He may commit waste as to the land he holds, or he may become liable to an action of ejectment by holding over after his title or interest is determined. As to goods he may detain them without right after it has become his duty to return them, or he may convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which we have lawfully gotten under a limited title; and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was given by beneficent fictions which (like most indirect and gradual reforms) extended the usefulness of the law at the cost of making it intricate and difficult to understand. On the one hand the remedies of an actual possessor were freely accorded to persons who had only the right to possess(l) ; on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the trespasser had only abused a lawful or at any rate excusable possession.

Alternative remedies. In the later history of common law pleading trespass and conversion became largely though not wholly interchangeable. Detinue, the older form of action for the recovery of chattels, was not abolished, but it was generally preferable to treat the detention as a conversion and sue in trover(m) , so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby a freeholder could recover possession of the land, were superseded by ejectment, a remedy at first introduced merely for the protection of leasehold interests. With all their artificial extensions these forms of action did not completely suffice. There might still be circumstances in which a special action on the case was required. And these complications cannot be said to be even now wholly obsolete. For exceptional circumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrongfully dealt with or only for his actual damage, which may be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law(n) , but while it exists we must take account of it.

II.—

Trespass.

What shall be said a trespass. Trespass may be committed by various kinds of acts, of which the most obvious are entry on another’s land (trespass quare clausum fregit), and taking another’s goods (trespass de bonis asportatis)(o) . Notwithstanding that trespasses punishable in the king’s court were said to be vi et armis, and were supposed to be punishable as a breach of the king’s peace, neither the use of force, nor the breaking of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. “Every invasion of private property, be it ever so minute, is a trespass”(p) . There is no doubt that if one walks across a stubble field without lawful authority or the occupier’s leave, one is technically a trespasser, and it may be doubted whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor(q) , a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified part of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to use the land or ways in conformity with the owner’s will thus expressed. But even so, persons using the land are no more than “bare licensees,” and their right is of the slenderest. Loitering on a highway, not for the purpose of using it as a highway, but for the purpose of annoying the owner of the soil in his lawful use of the adjacent land, may be a trespass against that owner(r) .

Quaere concerning balloons. It has been doubted whether it is a trespass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as shot fired from a gun, to pass over it. Lord Ellenborough thought it was not in itself a trespass “to interfere with the column of air superincumbent on the close,” and that the remedy would be by action on the case for any actual damage: though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neighbour’s land(s) . Fifty years later Lord Blackburn inclined to think differently(t) , and his opinion seems the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why an entry at any height above the surface should not also be a trespass. The improbability of actual damage may be an excellent practical reason for not suing a man who sails over one’s land in a balloon; but this appears irrelevant to the pure legal theory. Trespasses clearly devoid of legal excuse are committed every day on the surface itself, and yet are of so harmless a kind that no reasonable occupier would or does take any notice of them. Then one can hardly doubt that it might be a nuisance, apart from any definite damage, to keep a balloon hovering over another man’s land: but if it is not a trespass in law to have the balloon there at all, one does not see how a continuing trespass is to be committed by keeping it there. Again, it would be strange if we could object to shots being fired across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. The doctrine suggested by Lord Ellenborough’s dictum, if generally accepted and acted on, would so far be for the benefit of the public service that the existence of a right of “innocent passage” for projectiles over the heads and lands of the Queen’s subjects would increase the somewhat limited facilities of the land forces for musketry and artillery practice at long ranges. But we are not aware that such a right has in fact been claimed or exercised.

Trespass by a man’s cattle is dealt with exactly like trespass by himself; but in the modern view of the law this is only part of a more general rule or body of rules imposing an exceptionally strict and unqualified duty of safe custody on grounds of public expediency. In that connexion we shall accordingly return to the subject(u) .

Encroachment under or above ground by the natural growth of roots or branches of a tree standing in adjacent land is not a trespass, though it may be a nuisance(v) .

Trespass to goods. Trespass to goods may be committed by taking possession of them, or by any other act “in itself immediately injurious” to the goods in respect of the possessor’s interest(x) , as by killing(y) , beating(z) , or chasing(a) animals, or defacing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cepit et asportavit for inanimate chattels, abduxit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences under the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being “merged in the felony” when the trespass is felonious has been considered in an earlier chapter(b) . Authority, so far as known to the present writer, does not clearly show whether it is in strictness a trespass merely to lay hands on another’s chattel without either dispossession(c) or actual damage. By the analogy of trespass to land it seems that it must be so. There is no doubt that the least actual damage would be enough(d) . And cases are conceivable in which the power of treating a mere unauthorized touching as a trespass might be salutary and necessary, as where valuable objects are exhibited in places either public or open to a large class of persons. In the old precedents trespass to goods hardly occurs except in conjunction with trespass to land(e) .

III.—

Injuries to Reversion.

Wrongs to an owner not in possession. A person in possession of property may do wrong by refusing to deliver possession to a person entitled, or by otherwise assuming to deal with the property as owner or adversely to the true owner, or by dealing with it under colour of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started from entirely distinct conceptions of the mere detaining of property from the person entitled, and the spoiling or altering it to the prejudice of one in reversion or remainder, or a general owner(f) . For the former case the common law provided its most ancient remedies—the writ of right (and later the various assizes and the writ of entry) for land, and the parallel writ of detinue (parallel as being merely a variation of the writ of debt, which was precisely similar in form to the writ of right) for goods; to this must be added, in special, but once frequent and important cases, replevin(g) . For the latter the writ of waste (as extended by the Statutes of Marlbridge and Gloucester) was available as to land; later this was supplanted by an action on the case(h) “in the nature of waste,” and in modern times the power and remedies of courts of equity have been found still more effectual(i) . The process of devising a practical remedy for owners of chattels was more circuitous; they were helped by an action on the case which became a distinct species under the name of trover, derived from the usual though not necessary form of pleading, which alleged that the defendant found the plaintiff’s goods and converted them to his own use(k) . The original notion of conversion in personal chattels answers closely to that of waste in tenements; but it was soon extended so as to cover the whole ground of detinue(l) , and largely overlap trespass; a mere trespasser whose acts would have amounted to conversion if done by a lawful possessor not being allowed to take exception to the true owner “waiving the trespass,” and professing to assume in the defendant’s favour that his possession had a lawful origin.

IV.—

Waste.

Waste. Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance. Such injury need not consist in loss of market value; an alteration not otherwise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that every conversion of land from one species to another—as ploughing up woodland, or turning arable into pasture land—is waste, and it has even been said that building a new house is waste(m) . But modern authority does not bear this out; “in order to prove waste you must prove an injury to the inheritance” either “in the sense of value” or “in the sense of destroying identity”(n) . And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the land—clearing wild woods for example—which in England, or even in the Eastern States, would be manifest waste(o) . As to permissive waste, i.e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate; otherwise he is not(p) . It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, “having regard to its character and to the purposes for which it was intended to be used”(q) , whatever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin(r) . Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor. The reason will be more conveniently explained hereafter(s) .

Modern law of waste: tenants for life. In modern practice, questions of waste arise either between a tenant for life(t) and those in remainder, or between landlord and tenant. In the former case, the unauthorized cutting of timber is the most usual ground of complaint; in the latter, the forms of misuse or neglect are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed that there are “timber estates” on which wood is grown for the purpose of periodical cutting and sale, so that “cutting the timber is the mode of cultivation”(u) . On such land cutting the timber is equivalent to taking a crop off arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for ornament (save so far as the cutting of part is required for the preservation of the rest)(x) open a mine in a garden or pleasure-ground, or do like acts destructive to the individual character and amenity of the dwelling-place(y) . The commission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance: but, when it is once committed, the normal measure of damages can only be the actual loss of value(z) . Further details on the subject would not be appropriate here. They belong rather to the law of Real Property.

Landlord and tenant. As between landlord and tenant the real matter in dispute, in a case of alleged waste, is commonly the extent of the tenant’s obligation, under his express or implied covenants, to keep the property demised in safe condition or repair. Yet the wrong of waste is none the less committed (and under the old procedure was no less remediable by the appropriate action on the case) because it is also a breach of the tenant’s contract(a) . Since the Judicature Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort(b) : doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class.

V.—

Conversion.

Conversion: relation of trover to trespass. Conversion, according to recent authority, may be described as the wrong done by “an unauthorized act which deprives another of his property permanently or for an indefinite time”(c) . Such an act may or may not include a trespass; whether it does or not is immaterial as regards the right of the plaintiff in a civil action, for even under the old forms he might “waive the trespass”; though as regards the possibility of the wrong-doer being criminally liable it may still be a vital question, trespass by taking and carrying away the goods being a necessary element in the offence of larceny at common law. But the definition of theft (in the first instance narrow but strictly consistent, afterwards complicated by some judicial refinements and by numerous unsystematic statutory additions) does not concern us here. The “property” of which the plaintiff is deprived—the subject-matter of the right which is violated—must be something which he has the immediate right to possess; only on this condition could one maintain the action of trover under the old forms. Thus, where goods had been sold and remained in the vendor’s possession subject to the vendor’s lien for unpaid purchase-money, the purchaser could not bring an action of trover against a stranger who removed the goods, at all events without payment or tender of the unpaid balance(d) .

But an owner not entitled to immediate possession might have a special action on the case, not being trover, for any permanent injury to his interest, though the wrongful act might also be a trespass, conversion, or breach of contract as against the immediate possessor(e) . As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these last-mentioned cases.

What amounts to conversion. On the other hand, the name has been thought altogether objectionable by considerable authorities(f) : and certainly the natural meaning of converting property to one’s own use has long been left behind. It came to be seen that the actual diversion of the benefit arising from use and possession was only one aspect of the wrong, and not a constant one. It did not matter to the plaintiff whether it was the defendant, or a third person taking delivery from the defendant, who used his goods, or whether they were used at all; the essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion.

The grievance is the unauthorized assumption of the powers of the true owner. Actually dealing with another’s goods as owner for however short a time and however limited a purpose(g) is therefore conversion; so is an act which in fact enables a third person to deal with them as owner, and which would make such dealing lawful only if done by the person really entitled to possess the goods(h) . It makes no difference that such acts were done under a mistaken but honest and even reasonable supposition of being lawfully entitled(g) , or even with the intention of benefiting the true owner(h) ; nor is a servant, or other merely ministerial agent, excused for assuming the dominion of goods on his master’s or principal’s behalf, though he “acted under an unavoidable ignorance and for his master’s benefit”(i) . It is common learning that a refusal to deliver possession to the true owner on demand is evidence of a conversion, but evidence only(k) ; that is, one natural inference if I hold a thing and will not deliver it to the owner is that I repudiate his ownership and mean to exercise dominion in despite of his title either on my own behalf or on some other claimant’s. “If the refusal is in disregard of the plaintiff’s title, and for the purpose of claiming the goods either for the defendant or for a third person, it is a conversion”(l) . But this is not the only possible inference and may not be the right one. The refusal may be a qualified and provisional one: the possessor may say, “I am willing to do right, but that I may be sure I am doing right, give me reasonable proof that you are the true owner”: and such a possessor, even if over-cautious in the amount of satisfaction he requires, can hardly be said to repudiate the true owner’s claim(m) . Or a servant having the mere custody of goods under the possession of his master as bailee—say the servant of a warehouseman having the key of the warehouse—may reasonably and justifiably say to the bailor demanding his goods: “I cannot deliver them without my master’s order”; and this is no conversion. “An unqualified refusal is almost always conclusive evidence of a conversion; but if there be a qualification annexed to it, the question then is whether it be a reasonable one”(n) . Again there may be a wrongful dealing with goods, not under an adverse claim, but to avoid having anything to do with them or with their owner. Where a dispute arises between the master of a ferryboat and a passenger, and the master refuses to carry the passenger and puts his goods on shore, this may be a trespass, but it is not of itself a conversion(o) . This seems of little importance in modern practice, but we shall see that it might still affect the measure of damages.

In many cases the refusal to deliver on demand not only proves but constitutes the conversion. When this is so, the Statute of Limitation runs from the date of the refusal, without regard to any prior act of conversion by a third person(p) .

By a conversion the true owner is, in contemplation of law, totally deprived of his goods; therefore, except in a few very special cases(q) , the measure of damages in an action of trover was the full value of the goods, and by a satisfied judgment(r) for the plaintiff the property in the goods, if they still existed in specie, was transferred to the defendant.

Acts not amounting to conversion. The mere assertion of a pretended right to deal with goods or threatening to prevent the owner from dealing with them is not conversion, though it may perhaps be a cause of action, if special damage can be shown(s) ; indeed it is doubtful whether a person not already in possession can commit the wrong of conversion by any act of interference limited to a special purpose and falling short of a total assumption of dominion against the true owner(t) . An attempted sale of goods which does not affect the property, the seller having no title and the sale not being in market overt, nor yet the possession, there being no delivery, is not a conversion. If undertaken in good faith, it would seem not to be actionable at all; otherwise it might come within the analogy of slander of title. But if a wrongful sale is followed up by delivery, both the seller(u) and the buyer(x) are guilty of a conversion. Again, a mere collateral breach of contract in dealing with goods entrusted to one is not a conversion; as where the master of a ship would not sign a bill of lading except with special terms which he had no right to require, but took the cargo to the proper port and was willing to deliver it, on payment of freight, to the proper consignee(y) .

Dealings under authority of apparent owner. A merely ministerial dealing with goods, at the request of an apparent owner having the actual control of them, appears not to be conversion(z) ; but the extent of this limitation or exception is not precisely defined. The point is handled in the opinion delivered to the House of Lords in Hollins v. Fowler(a) by Lord Blackburn, then a Justice of the Queen’s Bench; an opinion which gives in a relatively small compass a lucid and instructive view of the whole theory of the action of trover. It is there said that “on principle, one who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodian is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession(b) , if he was a finder of the goods, or intrusted with their custody.” This excludes from protection, and was intended to exclude, such acts as those of the defendants in the case then at bar: they had bought cotton, innocently and without negligence, from a holder who had obtained it by fraud, and had no title, and they had immediately resold it to a firm for whom they habitually acted as cotton brokers, not making any profit beyond a broker’s commission. Still it appeared to the majority of the judges and to the House of Lords that the transaction was not a purchase on account of a certain customer as principal, but a purchase with a mere expectation of that customer (or some other customer) taking the goods; the defendants therefore exercised a real and effective though transitory dominion: and having thus assumed to dispose of the goods, they were liable to the true owner(c) . So would the ultimate purchasers have been (though they bought and used the cotton in good faith), had the plaintiffs thought fit to sue them(d) .

Acts of servants. But what of the servants of those purchasers, who handled the cotton under their authority and apparent title, and by making it into twist wholly changed its form? Assuredly this was conversion enough in fact and in the common sense of the word; but was it a conversion in law? Could any one of the factory hands have been made the nominal defendant and liable for the whole value of the cotton? Or if a thief brings corn to a miller, and the miller, honestly taking him to be the true owner, grinds the corn into meal and delivers the meal to him without notice of his want of title; is the miller, or are his servants, liable to the true owner for the value of the corn? Lord Blackburn thought these questions open and doubtful(e) . There appears to be nothing in the authorities to prevent it from being excusable to deal with goods merely as the servant or agent of an apparent owner in actual possession, or under a contract with such owner, according to the apparent owner’s direction; neither the act done, nor the contract (if any), purporting to involve a transfer of the supposed property in the goods, and the ostensible owner’s direction being one which he could lawfully give if he were really entitled to his apparent interest, and being obeyed in the honest(f) belief that he is so entitled. It might or might not be convenient to hold a person excused who in good faith assumes to dispose of goods as the servant and under the authority and for the benefit of a person apparently entitled to possession but not already in possession. But this could not be done without overruling accepted authorities(g) .

Redelivery by bailees. A bailee is prima facie estopped as between himself and the bailor from disputing the bailor’s title(h) . Hence, as he cannot be liable to two adverse claimants at once, he is also justified in redelivering to the bailor in pursuance of his employment, so long as he has not notice (or rather is not under the effective pressure)(h) of any paramount claim: it is only when he is in danger of such a claim that he is not bound to redeliver to the bailor(i) . When there are really conflicting claims, the contract of bailment does not prevent a bailee from taking interpleader proceedings(k) . This case evidently falls within the principle suggested by Lord Blackburn; but the rules depend on the special character of a bailee’s contract.

Abuse of limited interest. Where a bailee has an interest of his own in the goods (as in the common cases of hiring and pledge) and under colour of that interest deals with the goods in excess of his right, questions of another kind arise. Any excess whatever by the possessor of his rights under his contract with the owner will of course be a breach of contract, and it may be a wrong. But it will not be the wrong of conversion unless the possessor’s dealing is “wholly inconsistent with the contract under which he had the limited interest,” as if a hirer for example destroys or sells the goods(l) . That is a conversion, for it is deemed to be a repudiation of the contract, so that the owner who has parted with possession for a limited purpose is by the wrongful act itself restored to the immediate right of possession, and becomes the effectual “true owner” capable of suing for the goods or their value. But a merely irregular exercise of power, as a sub-pledge(m) or a premature sale(n) , is not a conversion; it is at most a wrong done to the reversionary interest of an owner out of possession, and that owner must show that he is really damnified(o) .

The technical distinction between an action of detinue or trover and a special action on the case here corresponds to the substantial and permanent difference between a wrongful act for which the defendant’s rightful possession is merely the opportunity, and a more or less plausible abuse of the right itself.

The case of a common law lien, which gives no power of disposal at all, is different; there the holder’s only right is to keep possession until his claim is satisfied. If he parts with possession, his right is gone, and his attempted disposal merely wrongful, and therefore he is liable for the full value(p) . But a seller remaining in possession who re-sells before the buyer is in default is liable to the buyer only for the damage really sustained, that is, the amount (if any) by which the market price of the goods, at the time when the seller ought to have delivered them, exceeds the contract price(q) . The seller cannot sue the buyer for the price of the goods, and if the buyer could recover the full value from the seller he would get it without any consideration: the real substance of the cause of action is the breach of contract, which is to be compensated according to the actual damage(r) . A mortgagor having the possession and use of goods under covenants entitling him thereto for a certain time, determinable by default after notice, is virtually a bailee for a term, and, like bailees in general, may be guilty of conversion by an absolute disposal of the goods; and so may assignees claiming through him with no better title than his own; the point being, as in the other cases, that the act is entirely inconsistent with the terms of the bailment(s) . One may be allowed to doubt, with Lord Blackburn, whether these fine distinctions have done much good, and to wish “it had been originally determined that even in such cases the owner should bring a special action on the case and recover the damage which he actually sustained”(t) . Certainly the law would have been simpler, perhaps it would have been juster. It may not be beyond the power of the House of Lords or the Court of Appeal to simplify it even now; but our business is to take account of the authorities as they stand. And, as they stand, we have to distinguish between—

• (i.) Ordinary cases of conversion where the full value can be recovered:
• (ii.) Cases where there is a conversion but only the plaintiff’s actual damage can be recovered:
• (iii.) Cases where there is a conversion but only nominal damages can be recovered; but such cases are anomalous, and depend on the substantial cause of action being the breach of a contract between the parties; it seems doubtful whether they ought ever to have been admitted:
• (iv.) Cases where there is not a conversion, but an action (formerly a special or innominate action on the case) lies to recover the actual damage.

Conversion by estoppel. A man may be liable by estoppel as for the conversion of goods which he has represented to be in his possession or control, although in fact they were not so at any time when the plaintiff was entitled to possession(u) . And he may be liable for conversion by refusal to deliver, when he has had possession and has wrongfully delivered the goods to a person having no title. He cannot deliver to the person entitled when the demand is made, but, having disabled himself by his own wrong, he is in the same position as if he still had the goods and refused to deliver(x) .

VI.—

Injuries between Tenants in Common.

Trespasses between tenants in common. As between tenants in common of either land or chattels there cannot be trespass unless the act amounts to an actual ouster, i.e. dispossession. Short of that “trespass will not lie by the one against the other so far as the land is concerned”(y) . In the same way acts of legitimate use of the common property cannot become a conversion through subsequent misappropriation, though the form in which the property exists may be wholly converted, in a wider sense, into other forms. There is no wrong to the co-tenant’s right of property until there is an act inconsistent with the enjoyment of the property by both. For every tenant or owner in common is equally entitled to the occupation and use of the tenement or property(z) ; he can therefore become a trespasser only by the manifest assumption of an exclusive and hostile possession. It was for some time doubted whether even an actual expulsion of one tenant in common by another were a trespass; but the law was settled, in the latest period of the old forms of pleading, that it is(a) . At first sight this seems an exception to the rule that a person who is lawfully in possession cannot commit trespass: but it is not so, for a tenant in common has legal possession only of his own share. Acts which involve the destruction of the property held in common, such as digging up and carrying away the soil, are deemed to include ouster(b) ; unless, of course, the very nature of the property (a coal-mine for example) be such that the working out of it is the natural and necessary course of use and enjoyment, in which case the working is treated as rightfully undertaken for the benefit of all entitled, and there is no question of trespass to property, but only, if dispute arises, of accounting for the proceeds(c) .

The normal rights of co-owners as to possession and use may be modified by contract. One of them may thus have the exclusive right to possess the chattel, and the other may have temporary possession or custody, as his bailee or servant, without the power of conferring any possessory right on a third person even as to his own share. In Nyberg v. Handelaar(d) , A. had sold a half share of a valuable chattel to B., on the terms that A. should retain possession until the chattel (a gold enamel box) could be sold for their common benefit. Afterwards A. let B. have the box to take it to an auction room. Then B., thus having manual possession of the box, delivered it to Z. by way of pledge for a debt of his own. The Court of Appeal held that Z. had no defence to an action by A. The judgments proceed on the assumption that B., while remaining owner in common as to half the property, had acquired possession only as bailee for a special purpose, and his wrongful dealing with it determined the bailment, and re-vested A.’s right to immediate possession(e) .

VII.—

Extended Protection of Possession.

Rights of de facto possessor against strangers. An important extension of legal protection and remedies has yet to be noticed. Trespass and other violations of possessory rights can be committed not only against the person who is lawfully in possession, but against any person who has legal possession, whether rightful in its origin or not, so long as the intruder cannot justify his act under a better title. A mere stranger cannot be heard to say that one whose possession he has violated was not entitled to possess. Unless and until a superior title or justification is shown, existing legal possession is not only presumptive but conclusive evidence of the right to possess. Sometimes mere detention may be sufficient: but on principle it seems more correct to say that physical control or occupation is prima facie evidence that the owner is in exercise (on his own behalf or on that of another) of an actual legal possession, and then, if the contrary does not appear, the incidents of legal possession follow. The practical result is that an outstanding claim of a third party (jus tertii, as it is called) cannot be set up to excuse either trespass or conversion: “against a wrong-doer, possession is a title”: “any possession is a legal possession against a wrong-doer”: or, as the Roman maxim runs, “adversus extraneos vitiosa possessio prodesse solet”(f) . As regards real property, a possession commencing by trespass can be defended against a stranger not only by the first wrongful occupier, but by those claiming through him; in fact it is a good root of title as against every one except the person really entitled(g) ; and ultimately, by the operation of the Statutes of Limitation, it may become so as against him also.

The authorities do not clearly decide, but seem to imply, that it would make no difference if the de facto possession violated by the defendant were not only without title, but obviously wrongful. But the rule is in aid of de facto possession only. It will not help a claimant who has been in possession but has been dispossessed in a lawful manner and has not any right to possess(h) .

This rule in favour of possessors is fundamental in both civil and criminal jurisdiction. It is indifferent for most practical purposes whether we deem the reason of the law to be that the existing possession is prima facie evidence of ownership or of the right to possess—“the presumption of law is that the person who has possession has the property”(i) :—or, that for the sake of public peace and security, and as “an extension of that protection which the law throws around the person”(k) , the existing possession is protected, without regard to its origin, against all men who cannot make out a better right:—or say(l) that the law protects possession for the sake of true owners, and to relieve them from the vexatious burden of continual proof of title, but cannot do this effectually without protecting wrongful possessors also. Such considerations may be guides and aids in the future development of the law, but none of them will adequately explain how or why it came to be what it is.

Rights of owner entitled to resume possession. Again, as de facto possession is thus protected, so de jure possession—if by that term we may designate an immediate right to possess when separated from actual legal possession—was even under the old system of pleading invested with the benefit of strictly possessory remedies; that is, an owner who had parted with possession, but was entitled to resume it at will, could sue in trespass for a disturbance by a stranger. Such is the case of a landlord where the tenancy is at will(m) , or of a bailor where the bailment is revocable at will, or on a condition that can be satisfied at will; which last case includes that of a trustee of chattels remaining in the control and enjoyment of the cestui que trust, for the relation is that of bailment at will as regards the legal interest(n) . In this way the same act may be a trespass both against the actual possessor and against the person entitled to resume possession. “He who has the property may have a writ of trespass, and he who has the custody another writ of trespass”(o) . “If I let my land at will, and a stranger enters and digs in the land, the tenant may bring trespass for his loss, and I may bring trespass for the loss and destruction of my land”(m) . And a lessor or bailor at will might have an action of trespass vi et armis against the lessee or bailee himself where the latter had abused the subject-matter in a manner so inconsistent with his contract as to amount to a determination of the letting or bailment. “If tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land, or my oxen to plow the land, and he killeth my cattle, I may well have an action of trespass against him notwithstanding the lending”(p) .

An exclusive right of appropriating things in which property is acquired only by capture is on the same footing in respect of remedies as actual possession(q) .

Rights of derivative possessors. Derivative possession is equally protected, through whatever number of removes it may have to be traced from the owner in possession, who (by modern lawyers at any rate) is assumed as the normal root of title. It may happen that a bailee delivers lawful possession to a third person, to hold as under-bailee from himself, or else as immediate bailee from the true owner: nay more, he may re-deliver possession to the bailor for a limited purpose, so that the bailor has possession and is entitled to possess, not in his original right, but in a subordinate right derived from his own bailee(r) . Such a right, while it exists, is as fully protected as the primary right of the owner would have been, or the secondary right of the bailee would be.

Possession derived through trespasser. Troublesome questions were raised under the old law by the position of a person who had got possession of goods through delivery made by a mere trespasser or by an originally lawful possessor acting in excess of his right. One who receives from a trespasser, even with full knowledge, does not himself become a trespasser against the true owner, as he has not violated an existing lawful possession(s) . The best proof that such is the law is the existence of the offence of receiving stolen goods as distinct from theft; if receiving from a trespasser made one a trespasser, the receipt of stolen goods with the intention of depriving the true owner of them would have been larceny at common law. Similarly where a bailee wrongfully delivers the goods over to a stranger; though the bailee’s mere assent will not prevent a wrongful taking by the stranger from being a trespass(t) .

The old law of real property was even more favourable to persons claiming through a disseisor; but it would be useless to give details here. At the present day the old forms of action are almost everywhere abolished; and it is quite certain that the possessor under a wrongful title, even if he is himself acting in good faith, is by the common law liable in some form to the true owner(u) , and in the case of goods must submit to recapture if the owner can and will retake them(x) . In the theoretically possible case of a series of changes of possession by independent trespasses, it would seem that every successive wrong-doer is a trespasser only as against his immediate predecessor, whose de facto possession he disturbed: though as regards land exceptions to this principle, the extent of which is not free from doubt, were introduced by the doctrine of “entry by relation” and the practice as to recovery of mesne profits. But this too is now, as regards civil liability, a matter of mere curiosity(y) .

VIII.—

Wrongs to Easements, etc.

Violation of incorporeal rights. Easements and other incorporeal rights in property, “rather a fringe to property than property itself” as they have been ingeniously called(z) , are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled: “a man who has used a way ten years without title cannot sue even a stranger for stopping it”(a) . The only possession that can come in question is the possession of the dominant tenement itself, the texture of legal rights and powers to which the “fringe” is incident. Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage(b) ; the action was on the case under the old forms of pleading, since trespass was technically impossible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff’s option.

To consider what amounts to the disturbance of rights in re aliena is in effect to consider the nature and extent of the rights themselves(c) , and this does not enter into our plan, save so far as such matters come under the head of Nuisance, to which a separate chapter is given.

Franchises and incorporeal rights of the like nature, as patent and copyrights, present something more akin to possession, for their essence is exclusiveness; and indeed trespass was the proper remedy for the disturbance of a strictly exclusive right. “Trespass lies for breaking and entering a several fishery, though no fish are taken.” And so it has always been held of a free warren(d) . But the same remark applies; in almost every disputed case the question is of defining the right itself, or the conditions of the right(c) ; and de facto enjoyment does not even provisionally create any substantive right, but is material only as an incident in the proof of title.

IX.—

Grounds of Justification and Excuse.

Licence. Acts of interference with land or goods may be justified by the consent of the occupier or owner; or they may be justified or excused (sometimes excused rather than justified, as we shall see) by the authority of the law. That consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful, is called a licence. There may be licences not affecting the use of property at all, and on the other hand a licence may be so connected with the transfer of property as to be in fact inseparable from it.

“A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which without licence had been unlawful. But a licence to hunt in a man’s park and carry away the deer killed to his own use, to cut down a tree in a man’s ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down they are grants. So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by; as to the actions of eating, firing my wood and warming him, they are licences: but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and in the wood burnt. So as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property”(e) .

Revocation of licence: distinction when coupled with interest. Generally speaking, a licence is a mere voluntary suspension of the licensor’s right to treat certain acts as wrongful, comes to an end by any transfer of the property with respect to which the licence is given(f) , and is revoked by signifying to the licensee that it is no longer the licensor’s will to allow the acts permitted by the licence. The revocation of a licence is in itself no less effectual though it may be a breach of contract. If the owner of land or a building admits people thereto on payment, as spectators of an entertainment or the like, it may be a breach of contract to require a person who has duly paid his money and entered to go out, but a person so required has no title to stay, and if he persists in staying he is a trespasser. His only right is to sue on the contract(f) : when, indeed, he may get an injunction, and so be indirectly restored to the enjoyment of the licence(g) . But if a licence is part of a transaction whereby a lawful interest in some property, besides that which is the immediate subject of the licence, is conferred on the licensee, and the licence is necessary to his enjoyment of that interest, the licence is said to be “coupled with an interest” and cannot be revoked until its purpose is fulfilled: nay more, where the grant obviously cannot be enjoyed without an incidental licence, the law will annex the necessary licence to the grant. “A mere licence is revocable; but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it so as to defeat his grant to which it was incident”(h) . Thus the sale of a standing crop or of growing trees imports a licence to the buyer to enter on the land so far and so often as reasonably necessary for cutting and carrying off the crop or the trees, and the licence cannot be revoked until the agreed time, if any, or otherwise a reasonable time for that purpose has elapsed(i) . The diversity to be noted between licence and grant is of respectable antiquity. In 1460 the defendant in an action of trespass set up a right of common; the plaintiff said an excessive number of beasts were put in; the defendant said this was by licence of the plaintiff; to which the plaintiff said the licence was revoked before the trespass complained of; Billing, then king’s serjeant, afterwards Chief Justice of the King’s Bench under Edward IV., argued that a licence may be revoked at will even if expressed to be for a term, and this seems to have so much impressed the Court that the defendant, rather than take the risk of demurring, alleged a grant: the reporter’s note shows that he thought the point new and interesting(k) . But a licensee who has entered or placed goods on land under a revocable licence is entitled to have notice of revocation and a reasonable time to quit or remove his goods(l) .

Executed licences. Again, if the acts licensed be such as have permanent results, as in altering the condition of land belonging to the licensee in a manner which, but for the licence, would be a nuisance to adjacent land of the licensor; there the licensor cannot, by merely revoking the licence, cast upon the licensee the burden of restoring the former state of things. A licence is in its nature revocable(m) , but the revocation will not make it a trespass to leave things as the execution of the licence has made them. In this sense it is said that “a licence executed is not countermandable”(n) . When a licence to do a particular thing once for all has been executed, there is nothing left to revoke.

Whether and how far the licensor can get rid of the consequences if he mislikes them afterwards is another and distinct inquiry, which can be dealt with only by considering what those consequences are. He may doubtless get rid of them at his own charges if he lawfully can; but he cannot call on the licensee to take any active steps unless under some right expressly created or reserved.

For this purpose, therefore, there is a material difference between “a licence to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like,” which may be countermanded without putting the licensee in any worse position than before the licence was granted, and “a licence to construct a work which is attended with expense to the party using the licence, so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss”(o) . And this rule is as binding on a licensor’s successors in title as on himself(p) . But it is not applicable (in this country at any rate) to the extent of creating in or over land of the licensor an easement or other interest capable of being created only by deed(q) .

In those cases, however, the licensee is not necessarily without remedy, for the facts may be such as to confer on him an interest which can be made good by way of equitable estoppel(r) . This form of remedy has been extensively applied in the United States to meet the hardship caused by untimely revocation of parol licences to erect dams, divert water-courses, and the like(s) .

The case of a contract to grant an easement or other interest in land must be carefully distinguished when it occurs(t) .

Expression of licensor’s will. The grant or revocation of a licence may be either by express words or by any act sufficiently signifying the licensor’s will: if a man has leave and licence to pass through a certain gate, the licence is as effectually revoked by locking the gate as by a formal notice(u) . In the common intercourse of life between friends and neighbours tacit licences are constantly given and acted on.

Distinction from grant as regards strangers. We shall have something to say in another connexion(x) of the rights—or rather want of rights—of a “bare licensee.” Here we may add that a licence, being only a personal right—or rather a waiver of the licensor’s rights—is not assignable, and confers no right against any third person. If a so-called licence does operate to confer an exclusive right capable of being protected against a stranger, it must be that there is more than a licence, namely the grant of an interest or easement. And the question of grant or licence may further depend on the question whether the specified mode of use or enjoyment is known to the law as a substantive right or interest(y) : a question that may be difficult. But it is submitted that on principle the distinction is clear. I call at a friend’s house; a contractor who is doing some work on adjacent land has encumbered my friend’s drive with rubbish; can it be said that this is a wrong to me without special damage? With such damage, indeed, it is(z) , but only because a stranger cannot justify that which the occupier himself could not have justified. The licence is material only as showing that I was not a wrong-doer myself; the complaint is founded on actual and specific injury, not on a quasi trespass. Our law of trespass is not so eminently reasonable that one need be anxious to extend to licensees the very large rights which it gives to owners and occupiers.

Justification by law. As to justification by authority of the law, this is of two kinds:

1. In favour of a true owner against a wrongful possessor; under this head come re-entry on land and retaking of goods.

2. In favour of a paramount right conferred by law against the rightful possessor; which may be in the execution of legal process, in the assertion or defence of private right, or in some cases by reason of necessity.

Re-entry: herein of forcible entry. A person entitled to the possession of lands or tenements does no wrong to the person wrongfully in possession by entering upon him; and it is said that by the old common law he might have entered by force. But forcible entry is an offence under the statute of 5 Ric. II. (ad 1381), which provided that “none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case not with strong hand nor with multitude of people, but only in peaceable and easy [the true reading of the Parliament Roll appears to be ‘lisible, aisee, & peisible’] manner.” This statute is still in force here, and “has been re-enacted in the several American States, or recognized as a part of the common law”(a) . The offence is equally committed whether the person who enters by force is entitled to possession or not: but opinions have differed as to the effect of the statute in a court of civil jurisdiction. It has been held that a rightful owner who enters by force is not a trespasser, as regards the entry itself, but is liable for any independent act done by him in the course of his entry which is on the face of it wrongful, and could be justified only by a lawful possession(b) ; and, it should seem, for any other consequential damage, within the general limit of natural and probable consequence, distinguishable from the very act of eviction. This is a rather subtle result, and is further complicated by the rule of law which attaches legal possession to physical control, acquired even for a very short time, so it be “definite and appreciable”(c) , by the rightful owner. A., being entitled to immediate possession (say as a mortgagee having the legal estate) effects an actual entry by taking off a lock, without having given any notice to quit to B. the precarious occupier; thus, “in a very rough and uncourteous way,” that is, peaceably but only just peaceably, he gets possession: once gotten, however, his possession is both legal and rightful. If therefore B. turns him out again by force, there is reasonable and probable cause to indict B. for a forcible entry. So the House of Lords has decided(d) . Nevertheless, according to later judgments, delivered indeed in a court of first instance, but one of them after consideration, and both learned and careful, A. commits a trespass if, being in possession by a forcible entry, he turns out B.(e) . Moreover, the old authorities say that a forcible turning out of the person in present possession is itself a forcible entry, though the actual ingress were without violence. “He that entereth in a peaceable show (as the door being either open or but closed with a latch only), and yet when he is come in useth violence, and throweth out such as he findeth in the place, he (I say) shall not be excused: because his entry is not consummate by the only putting of his foot over the threshold, but by the action and demeanour that he offereth when he is come into the house”(f) . And under the old statutes and practice, “if A. shall disseise B. of his land, and B. do enter again, and put out A. with force, A. shall be restored to his possession by the help of the justices of the peace, although his first entry were utterly wrongful: and (notwithstanding the same restitution is made) yet B. may well have an assize against A., or may enter peaceably upon him again”(g) .

But old authorities also distinctly say that no action is given by the statute to a tenant who is put out with force by the person really entitled, “because that that entry is not any disseisin of him”(h) . There is nothing in them to countenance the notion of the personal expulsion being a distinct wrong. The opinion of Parke and Alderson was in accordance with this(i) , and the decision from which they dissented is reconcileable with the old books only by the ingenious distinction—certainly not made by the majority(k) —of collateral wrongs from the forcible eviction itself. The correct view seems to be that the possession of a rightful owner gained by forcible entry is lawful as between the parties, but he shall be punished for the breach of the peace by losing it, besides making a fine to the king. If the latest decisions are correct, the dispossessed intruder might nevertheless have had a civil remedy in some form (by special action on the case, it would seem) for incidental injuries to person or goods, provided that they were incidental to the unlawful force and not to the entry in itself(l) . This refinement does not appear to have occurred to any of the old pleaders.

Fresh reentry on trespasser. A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner. His condition is quite different from that of a rightful owner out of possession, who can recover legal possession by any kind of effective interruption of the intruder’s actual and exclusive control. A person who had been dismissed from the office of schoolmaster and had given up possession of a room occupied by him in virtue of his office, but had afterwards re-entered and occupied for eleven days, was held not entitled to sue in trespass for an expulsion by the trustees at the end of that time. “A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can without delay reinstate himself in his former possession”(l) . There must be not only occupation, but effective occupation, for the acquisition of possessory rights. “In determining whether a sufficient possession was taken, much more unequivocal acts must be proved when the person who is said to have taken possession is a mere wrong-doer than when he has a right under his contract to take possession”(m) . And unless and until possession has been acquired, the very continuance of the state of things which constitutes the trespass is a new trespass at every moment(n) . We shall see that this has material consequences as regards the determination of a cause of excuse.

Recaption of goods. As regards goods which have been wrongfully taken, the taker is a trespasser all the time that his wrongful possession continues, so much so that “the removal of goods, wrongfully taken at first, from one place to another, is held to be a several trespass at each place”(o) , and a supervening animus furandi at any moment of the continuing trespassory possession will complete the offence of larceny and make the trespasser a thief(p) . Accordingly the true owner may retake the goods if he can, even from an innocent third person into whose hands they have come; and, as there is nothing in this case answering to the statutes of forcible entry, he may use (it is said) whatever force is reasonably necessary for the recaption(q) . He may also enter on the first taker’s land for the purpose of recapture if the taker has put the goods there(r) ; for they came there by the occupier’s own wrong(s) ; but he cannot enter on a third person’s land unless, it is said, the original taking was felonious(t) , or perhaps, as it has been suggested, after the goods have been claimed and the occupier of the land has refused to deliver them(u) . Possession is much more easily changed in the case of goods than in the case of land; a transitory and almost instantaneous control has often, in criminal courts, been held to amount to asportation. The difference may have been sharpened by the rules of criminal justice, but in a general way it lies rather in the nature of the facts than in any arbitrary divergence of legal principles in dealing with immoveable and moveable property.

Process of law: breaking doors. One of the most important heads of justification under a paramount right is the execution of legal process. The mere taking and dealing with that which the law commands to be so taken and dealt with, be it the possession of land or goods, or both possession and property of goods, is of course no wrong; and in particular if possession of a house cannot be delivered in obedience to a writ without breaking the house open, broken it must be(x) . It is equally settled on the other hand that “the sheriff must at his peril seize the goods of the party against whom the writ issues,” and not any other goods which are wrongly supposed to be his; even unavoidable mistake is no excuse(y) . More special rules have been laid down as to the extent to which private property which is not itself the immediate object of the process may be invaded in executing the command of the law. The broad distinction is that outer doors may not be broken in execution of process at the suit of a private person; but at the suit of the Crown, or in execution of process for contempt of a House of Parliament(z) , or of a Superior Court, they may, and must; and this, in the latter case, though the contempt consist in disobedience to an order made in a private suit(a) . The authorities referred to will guide the reader, if desired, to further details.

Constables, revenue officers, and other public servants, and in some cases private persons, are authorized by divers statutes to enter on lands and into houses for divers purposes, with a view to the discovery or prevention of crime, or of frauds upon the public revenue. We shall not attempt to collect these provisions.

Distress. The right of distress, where it exists, justifies the taking of goods from the true owner: it seems that the distrainor, unlike a sheriff taking goods in execution, does not acquire possession, the goods being “in the custody of the law”(b) . Most of the practical importance of the subject is in connexion with the law of landlord and tenant, and we shall not enter here on the learning of distress for rent and other charges on land(c) .

Damage feasant. Distress damage feasant is the taking by an occupier of land of chattels (commonly but not necessarily animals)(d) found encumbering or doing damage on the land, either to the land itself or to chattels on the land(e) . The right given by the law is therefore a right of self-protection against the continuance of a trespass already commenced. It must be a manifest trespass; distress damage feasant is not allowed against a party having any colour of right, e.g., one commoner cannot distrain upon another commoner for surcharging(f) . And where a man is lawfully driving cattle along a highway, and some of them stray from it into ground not fenced off from the way, he is entitled to a reasonable time for driving them out before the occupier may distrain, and is excused for following them on the land for that purpose. What is reasonable time is a question of fact, to be determined with reference to all the circumstances of the transaction(g) . And where cattle stray by reason of the defect of fences which the occupier is bound to repair, there is no actionable trespass and no right to distrain until the owner of the cattle has notice(h) . In one respect distress damage feasant is more favoured than distress for rent. “For a rent or service the lord cannot distreine in the night, but in the day time: and so it is of a rent charge. But for damage feasant one may distreine in the night, otherwise it may be the beasts will be gone before he can take them”(i) . But in other respects “damage feasant is the strictest distress that is, for the thing distrained must be taken in the very act,” and held only as a pledge for its own individual trespass, and other requirements observed. Distress damage feasant suspends the right of action for the trespass(k) .

The right of distress damage feasant does not exclude the right to chase out trespassing beasts at one’s election(l) , or to remove inanimate chattels and replace them on the owner’s land(m) .

Entry of distrainor. Entry to take a distress must be peaceable and without breaking in; it is not lawful to open a window, though not fastened, and enter thereby(n) . Distrainors for rent have been largely holpen by statute, but the common law has not forgotten its ancient strictness where express statutory provision is wanting.

In connexion with distress the Acts for the prevention of cruelty to animals have introduced special justifications: any one may enter a pound to supply necessary food and water to animals impounded, and there is an eventual power of sale, on certain conditions, to satisfy the cost thereof(o) .

Trespasses justified by necessity. Finally there are cases in which entry on land without consent is excused by the necessity of self-preservation, or the defence of the realm(p) , or an act of charity preserving the occupier from irremediable loss, or sometimes by the public safety or convenience, as in putting out fires, or as where a highway is impassable, and passing over the land on either side is justified; but in this last-mentioned case it is perhaps rather a matter of positive common right than of excuse(q) . Justifications of this kind are discussed in a case of the early sixteenth century, where a parson sued for trespass in carrying away his corn, and the defendant justified on the ground that the corn had been set out for tithes and was in danger of being spoilt, wherefore he took it and carried it to the plaintiff’s barn to save it: to which the plaintiff demurred. Kingsmill J. said that a taking without consent must be justified either by public necessity, or “by reason of a condition in law”; neither of which grounds is present here; taking for the true owner’s benefit is justifiable only if the danger be such that he will lose his goods without remedy if they are not taken. As examples of public necessity, he gives pulling down some houses to save others (in case of fire, presumably)(r) , and entering in war time to make fortifications. “The defendant’s intention,” said Rede C. J., “is material in felony but not in trespass; and here it is not enough that he acted for the plaintiff’s good.” A stranger’s beasts might have spoilt the corn, but the plaintiff would have had his remedy against their owner. “So where my beasts are doing damage in another man’s land, I may not enter to drive them out; and yet it would be a good deed to drive them out so that they do no more damage; but it is otherwise if another man drive my horses into a stranger’s land where they do damage, there I may justify entry to drive them out, because their wrong-doing took its beginning in a stranger’s wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being lost by water, fire, or such like, for there the destruction is without remedy against any man. And so this plea is not good”(s) . Fisher J. concurred. There is little or nothing to be added to the statement of the law, though it may be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if the possessor of the land has created or contributed to the necessity by his own fault, as where the grantor of a private right of way has obstructed it so that the way cannot be used except by deviation on his adjacent land(t) .

Foxhunting not privileged. At one time it was supposed that the law justified entering on land in fresh pursuit of a fox, because the destruction of noxious animals is to be encouraged; but this is not the law now. If it ever was, the reason for it has long ceased to exist(u) . Practically foxhunters do well enough (in this part of the United Kingdom) with licence express or tacit.

Trespass ab initio. There is a curious and rather subtle distinction between justification by consent and justification or excuse under authority of law. A possessor by consent, or a licensee, may commit a wrong by abusing his power, but (subject to the peculiar exception in the case of letting or bailment at will mentioned above)(x) he is not a trespasser. If I lend you a horse to ride to York, and you ride to Carlisle, I shall not have (under the old forms of pleading) a general action of trespass, but an action on the case. So if a lessee for years holds over, he is not a trespasser, because his entry was authorized by the lessor(y) . But “when entry, authority, or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio,” that is, the authority or justification is not only determined, but treated as if it had never existed. “The law gives authority to enter into a common inn or tavern(z) ; so to the lord to distrain; to the owner of the ground to distrain damage feasant; to him in reversion to see if waste be done; to the commoner to enter upon the land to see his cattle; and such like . . . . But if he who enters into the inn or tavern doth a trespass, as if he carries away anything; or if the lord who distrains for rent(a) , or the owner for damage feasant, works or kills the distress; or if he who enters to see waste breaks the house or stays there all night; or if the commoner cuts down a tree; in these and the like cases the law adjudges that he entered for that purpose, and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio”(b) . Or to state it less artificially, the effect of an authority given by law without the owner’s consent is to protect the person exercising that authority from being dealt with as a trespasser so long—but so long only—as the authority is not abused. He is never doing a fully lawful act: he is rather an excusable trespasser, and becomes a trespasser without excuse if he exceeds his authority(c) : “it shall be adjudged against the peace”(d) . This doctrine has been applied in modern times to the lord of a manor taking an estray(e) , and to a sheriff remaining in a house in possession of goods taken in execution for an unreasonably long time(f) . It is applicable only when there has been some kind of active wrong-doing; not when there has been a mere refusal to do something one ought to do—as to pay for one’s drink at an inn(g) or deliver up a distress upon a proper tender of the rent due(h) . “If I distrain for rent, and afterwards the termor offers me the rent and the arrears, and I withhold the distress from him, yet he shall not have an action of trespass against me, but detinue, because it was lawful at the beginning, when I took the distress; but if I kill them or work them in my own plow, he shall have an action of trespass”(i) . But it is to be observed that retaining legal possession after the expiration of authority has been held equivalent to a new taking, and therefore a positive act: hence (it seems) the distinction between the liability of a sheriff, who takes possession of the execution debtor’s goods, and of a distrainor; the latter only takes the goods into “the custody of the law,” and “the goods being in the custody of the law, the distrainor is under no legal obligation actively to re-deliver them”(k) . Formerly these refinements were important as determining the proper form of action. Under the Judicature Acts they seem to be obsolete for most purposes of civil liability, though it is still possible that a question of the measure of damages may involve the point of trespass ab initio. Thus in the case of the distrainor refusing to give up the goods, there was no doubt that trover or detinue would lie(l) : so that under the present practice there would be nothing to discuss.

X.—

Remedies.

Taking or retaking goods. The only peculiar remedy available for this class of wrongs is distress damage feasant, which, though an imperfect remedy, is so far a remedy that it suspends the right of action for the trespass. The distrainor “has an adequate satisfaction for his damage till he lose it without default in himself;” in which case he may still have his action(m) . It does not seem that the retaking of goods taken by trespass extinguishes the true owner’s right of action, though it would of course affect the amount of damages.

Costs where damages nominal. Actions for merely trifling trespasses were formerly discouraged by statutes providing that when less than 40s. were recovered no more costs than damages should be allowed except on the judge’s certificate that the action was brought to try a right, or that the trespass was “wilful and malicious:” yet a trespass after notice not to trespass on the plaintiff’s lands was held to be “wilful and malicious,” and special communication of such notice to the defendant was not required(n) . But these and many other statutes as to costs were superseded by the general provisions of the Judicature Acts, and the rule that a plaintiff recovering less than 10l. damages in an action “founded on tort” gets costs only on the County Court scale, unless by special certificate or order(o) ; and they are now expressly repealed(p) .

The Court is therefore not bound by any fixed rule; but it might possibly refer to the old practice for the purpose of informing its discretion. It seems likely that the common practice of putting up notice boards with these or the like words: “Trespassers will be prosecuted according to law”—words which are “if strictly construed, a wooden falsehood”(q) , simple trespass not being punishable in courts of criminal jurisdiction—was originally intended to secure the benefit of these same statutes in the matter of costs. At this day it may be a question whether the Court would not be disposed to regard the threat of an impossible criminal prosecution as a fraud upon the public, and rather a cause for depriving the occupier of costs than for awarding them(r) . Several better and safer forms of notice are available; a common American one, “no trespassing,” is as good as any.

“Nothing on earth,” said Sir Walter Scott, “would induce me to put up boards threatening prosecution, or cautioning one’s fellow-creatures to beware of man-traps and spring-guns. I hold that all such things are not only in the highest degree offensive and hurtful to the feelings of people whom it is every way important to conciliate, but that they are also quite inefficient”(s) . It must be remembered that Scott never ceased to be a lawyer as well as a man of letters. It was partly the legal knowledge and tastes displayed in the Waverley Novels that identified him in the eyes of the best critics as the author.

Injunctions. An injunction can be granted to restrain a continuing trespass, such as the laying and keeping of waterpipes under a man’s ground without either his consent or justification by authority of law; and the plaintiff need not prove substantial damage to entitle himself to this form of relief(t) . On the other hand the right to an injunction does not extend beyond the old common-law right to sue for damages: a reversioner cannot have an injunction without showing permanent injury to the reversion(u) .

Of course it may be a substantial injury, though without any direct damage, to do acts on another man’s land for one’s own profit without his leave; for he is entitled to make one pay for the right to do them, and his power of withholding leave is worth to him precisely what it is worth to the other party to have it(x) .

Effect of changes in procedure. Before the Common Law Procedure Acts an owner, tenant, or reversioner who had suffered undoubted injury might be defeated by bringing his action in the wrong form, as where he brought trespass and failed to show that he was in present possession at the time of the wrong done(y) . But such cases can hardly occur now.

[(a) ]Hollins v. Fowler (1875) L.R. 7 H. L. 757, 44 L. J. Q. B. 169.

[(b) ]In trespass, Kirk v. Gregory (1876) 1 Ex. D. 55, 45 L. J. Ex. 186: in trover, Hiort v. Bott (1874) L. R. 9 Ex. 86, 43 L. J. Ex. 81.

[(c) ]Hollins v. Fowler (1875) L. R. 7 H. L. 757, 44 L. J. Q. B. 169; Cundy v. Lindsay (1878) 3 App. Ca. 459, 47 L. J. Q. B. 481.

[(d) ]See Pilcher v. Rawlins (1871) L. R. 7 Ch. 259, 41 L. J. Ch. 485.

[(e) ]Consolidated by the Factors Act, 1889, 52 & 53 Vict. c. 45.

[(f) ]See Mr. F. W. Maitland’s articles on “The Seisin of Chattels” and “The Mystery of Seisin,” L. Q. R. i. 324, ii. 481, where divers profitable comparisons of the rules concerning real and personal property will be found.

[(g) ]See “An Essay on Possession in the Common Law” by Mr. (now Justice) R. S. Wright and the present writer (Oxford: Clarendon Press, 1888).

[(h) ]Yet it is not certain that he could not maintain trespass against a stranger; see Moore v. Robinson (1831), 2 B. & Ad. 817. The law about the custody of servants and persons in a like position has vacillated from time to time, and has never been defined as a whole.

[(i) ]Cp. Holland, “Elements of Jurisprudence,” 6th ed. pp. 170—179.

[(j) ]Formerly it was said that trespass to land was a disturbance not amounting to disseisin, though it might be “vicina disseisinae,” which is explained by “si ad commodum uti non possit.” Bracton, fo. 217 a. I do not think this distinction was regarded in any later period, or was ever attempted as to goods.

[(k) ]E.g., a mortgagee of chattels who has taken possession cannot commit a trespass by removing the goods, although the mortgagor may meanwhile have tendered the amount due: Johnson v. Diprose, ’93, 1 Q. B. 512, 62 L. J. Q. B. 291, 4 R. 291, C. A.

[(l) ]See Smith v. Milles (1786), 1 T. R. 475, 480, and note that “constructive possession,” as used in our books, includes (i.) possession exercised through a servant or licensee; (ii.) possession conferred by law, in certain cases, e.g. on an executor, independently of any physical apprehension or transfer; (iii.) an immediate right to possess, which is distinct from actual possession.

[(m) ]Blackst. iii. 152.

[(n) ]See per Thesiger L. J., 4 Ex. Div. 199.

[(o) ]The exact parallel to trespass de bonis asportatis is of course not trespass qu. cl. fr. simply, but trespass amounting to a disseisin of the freeholder or ouster of the tenant for years or other interest not freehold.

[(p) ]Entick v. Carrington, 19 St. Tr. 1066. “Property” here, as constantly in our books, really means possession or a right to possession.

[(q) ]As a matter of fact, the Dartmoor hunt has an express licence from the Duchy of Cornwall.

[(r) ]Harrison v. Duke of Rutland, ’93, 1 Q. B. 142, 62 L. J. Q. B. 117, 4 R. 155, C. A.

[(s) ]Pickering v. Rudd (1815) 4 Camp. 219, 221, 16 R. R. 777.

[(t) ]Kenyon v. Hart (1865) 6 B. & S. 249, 252, 34 L. J. M. C. 87; and see per Fry L. J. in Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q. B. Div. 904, 927, 53 L. J. Q. B. 449. It may be otherwise, as in that case, where statutory interests in land are conferred for special purposes.

[(u) ]Chapter XII. below.

[(v) ]Lemmon v. Webb, ’94, 3 Ch. 1, 7 R. July, 111, affd. in H. L. Nov. 27, 1894.

[(x) ]Blackst. iii. 153.

[(y) ]Wright v. Ramscot, 1 Saund. 83, 1 Wms. Saund. 108 (trespass for killing a mastiff).

[(z) ]Dand v. Sexton, 3 T. R. 37 (trespass vi et armis for beating the plaintiff’s dog).

[(a) ]A form of writ is given for chasing the plaintiff’s sheep with dogs, F. N. B. 90 L.; so for shearing the plaintiff’s sheep, ib. 87 G.

[(b) ]P. 185, above.

[(c) ]See Gaylard v. Morris (1849) 3 Ex. 695, 18 L. J. Ex. 297.

[(d) ]“Scratching the panel of a carriage would be a trespass,” Alderson B. in Fouldes v. Willoughby, 8 M. & W. 549. In Kirk v. Gregory (1876) 1 Ex. D. 55, the trespass complained of was almost nominal, but there was a complete asportation while the intermeddling lasted.

[(e) ]See F. N. B. 86-88, passim.

[(f) ]As to the term “reversionary interest” applied to goods, cp. Dicey on Parties, 345. In one way “reversioner” would be more correct than “owner” or “general owner,” for the person entitled to sue in trover or prosecute for theft is not necessarily dominus, and the dominus of the chattel may be disqualified from so suing or prosecuting.

[(g) ]It seems useless to say more of replevin here. The curious reader may consult Mennie v. Blake (1856) 6 E. & B. 842, 25 L. J. Q. B. 399. For the earliest form of writ of entry see Close Rolls, vol. i. p. 32. Blackstone is wrong in stating it to have been older than the assizes.

[(h) ]Under certain conditions waste might amount to trespass, Litt. s. 71, see more in sect. vii. of the present chapter.

[(i) ]For the history and old law, see Co. Litt. 53, 54; Blackst. ii. 281, iii. 225; notes to Greene v. Cole, 2 Wms. Saund. 644; and Woodhouse v. Walker (1880), 5 Q. B. D. 404. The action of waste proper could be brought only “by him that hath the immediate estate of inheritance,” Co. Litt. 53 a.

[(k) ]Blackst. iii. 152, cf. the judgment of Martin B. in Burroughes v. Bayne (1860) 5 H. & N. 296, 29 L. J. Ex. 185, 188; and as to the forms of pleading, Bro. Ab. Accion sur le Case, 103, 109, 113, and see Littleton’s remark in 33 H. VI., 27, pl. 12, an action of detinue where a finding by the defendant was alleged, that “this declaration per inventionem is a new found Haliday”; the case is translated by Mr. Justice Wright in Pollock and Wright on Possession, 174.

[(l) ]Martin B., l. c., whose phrase “in very ancient times” is a little misleading, for trover, as a settled common form, seems to date only from the 16th century; Reeves Hist. Eng. L. iv. 526.

[(m) ]“If the tenant build a new house, it is waste; and if he suffer it to be wasted, it is a new waste.” Co. Litt. 53 a.

[(n) ]Jones v. Chappell (1875) 20 Eq. 539, 540-2 (Jessel M. R.); Meux v. Cobley, ’92, 2 Ch. 253, 61 L. J. Ch. 449.

[(o) ]Cooley on Torts, 333.

[(p) ]Re Cartwright, Avis v. Newman (1889) 41 Ch. D. 532, 58 L. J. Ch. 590. An equitable tenant for life is not liable for permissive waste: Powys v. Blagrave (1854) 4 D. M. G. 448; Re Hotchkys, Freke v. Calmady (1886) 32 Ch. D. 408, 55 L. J. Ch. 546.

[(q) ]Manchester Bonded Warehouse Co. v. Carr (1880) 5 C. P. D. 507, 512, 49 L. J. C. P. 809; following Saner v. Bilton (1878) 7 Ch. D. 815, 821, 47 L. J. Ch. 267; cp. Job v. Potton (1875) 20 Eq. 84, 44 L. J. Ch. 262.

[(r) ]Elias v. Snowdon Slate Quarries Co. (1879) 4 App. Ca. 454, 465, 48 L. J. Ch. 811.

[(s) ]See below in sect. vii. of this chapter.

[(t) ]In the United States, where tenancy in dower is still common, there are many modern decisions on questions of waste arising out of such tenancies. See Cooley on Torts 333, or Scribner on Dower (2nd ed. 1883) i. 212—214; ii. 795 sqq.

[(u) ]As to the general law concerning timber, and its possible variation by local custom, see the judgment of Jessel M. R., Honywood v. Honywood (1874) 18 Eq. 306, 309, 43 L. J. Ch. 652, and Dashwood v. Magniac, ’91, 3 Ch. 306, 60 L. J. Ch. 809, C. A.

[(x) ]See Baker v. Sebright (1879) 13 Ch. D. 179, 49 L. J. Ch. 65; but it seems that a remainderman coming in time would be entitled to the supervision of the Court in such case; 13 Ch. D. at p. 188.

[(y) ]Waste of this kind was known as “equitable waste,” the commission of it by a tenant unimpeachable for waste not being treated as wrongful at common law; see now 36 & 37 Vict. c. 66 (the Supreme Court of Judicature Act, 1873), s. 25, sub-s. 3.

[(z) ]Bubb v. Yelverton (1870) 10 Eq. 465. Here the tenant for life had acted in good faith under the belief that he was improving the property. Wanton acts of destruction would be very differently treated.

[(a) ]2 Wms. Saund. 646.

[(b) ]E. g. Tucker v. Linger (1882) 21 Ch. Div. 18, 51 L. J. Ch. 713.

[(c) ]Bramwell B., adopting the expression of Bosanquet, arg., Hiort v. Bott (1874) L. R. 9 Ex. 86, 89, 43 L. J. Ex. 81. All, or nearly all, the learning on the subject down to 1871 is collected (in a somewhat formless manner it must be allowed) in the notes to Wilbraham v. Snow, 2 Wms. Saund. 87.

[(d) ]Lord v. Price (1874) L. R. 9 Ex. 54, 43 L. J. Ex. 49.

[(e) ]Mears v. L. & S. W. R. Co. (1862) 11 C. B. N. S. 850, 31 L. J. C. P. 220. This appears to have been overlooked in the reasoning if not in the decision of the Court in Coupé Co. v. Maddick, ’91, 2 Q. B. 413, 60 L. J. Q. B. 676, which assumes that a bailor for a term has no remedy against a stranger who injures the chattel.

[(f) ]See 2 Wms. Saund. 108, and per Bramwell L. J., 4 Ex. D. 194.

[(g) ]Hollins v. Fowler (1875) L. R. 7 H. L. 757, 44 L. J. Q. B. 169. Cashing a bill in good faith on a forged indorsement is a conversion: Kleinwort v. Comptoir d’Escompte, ’94, 10 R. July, 277.

[(h) ]Hiort v. Bott, L. R. 9 Ex. 86, 43 L. J. Ex. 81.

[(i) ]Stephens v. Elwall (1815) 4 M. & S. 259, 16 R. R. 458; admitted to be good law in Hollins v. Fowler, L. R. 7 H. L. at pp. 769, 795, and followed in Barker v. Furlong, ’91, 2 Ch. 172, 60 L. J. Ch. 368. Cp. Fine Art Society v. Union Bank of London (1886) 17 Q. B. Div. 705, 56 L. J. Q. B. 70.

[(k) ]Balme v. Hutton, Ex. Ch. (1833) 9 Bing. 471, 475.

[(l) ]Opinion of Blackburn J. in Hollins v. Fowler, L. R. 7 H. L. at p. 766.

[(m) ]See Burroughes v. Bayne (1860) 5 H. & N. 296, 29 L. J. Ex. 185, 188, supra, p. 312.

[(n) ]Alexander v. Southey (1821) 5 B. & A. 247, per Best J. at p. 250.

[(o) ]Fouldes v. Willoughby, 8 M. & W. 540; cp. Wilson v. McLaughlin (1871) 107 Mass. 587.

[(p) ]Miller v. Dell, ’91, 1 Q. B. 468, 60 L. J. Q. B. 404, C. A.

[(q) ]See per Bramwell L. J., 3 Q. B. D. 490; Hiort v. L. & N. W. R. Co. (1879) 4 Ex. Div. 188, 48 L. J. Ex. 545, where however Bramwell L. J. was the only member of the Court who was clear that there was any conversion at all.

[(r) ]Not by judgment without satisfaction; Ex parte Drake (1877) 5 Ch. Div. 866, 46 L. J. Bk. 29; following Brinsmead v. Harrison (1871) L. R. 6 C. P. 584, 40 L. J. C. P. 281.

[(s) ]England v. Cowley (1873) L. R. 8 Ex. 126, see per Kelly C. B. at p. 132, 42 L. J. Ex. 80.

[(t) ]See per Bramwell B. and Kelly C. B. ib. 131, 132.

[(u) ]Lancashire Waggon Co. v. Fitzhugh (1861) 6 H. & N. 502, 30 L. J. Ex. 231 (action by bailor against sheriff for selling the goods absolutely as goods of the bailee under a fi. fa.; the decision is on the pleadings only).

[(x) ]Cooper v. Willomatt (1845) 1 C. B. 672, 14 L. J. C. P. 219.

[(y) ]Jones v. Hough (1879) 5 Ex. Div. 115, 49 L. J. Ex. 211; cp. Heald v. Carey (next note).

[(z) ]Heald v. Carey (1852) 11 C. B. 977, 21 L. J. C. P. 97; but this is really a case of the class last mentioned, for the defendant received the goods on behalf of the true owner, and was held to have done nothing with them that he might not properly do.

[(a) ]L. R. 7 H. L. at pp. 766—768.

[(b) ]Observe that this means physical possession; in some of the cases proposed it would be accompanied by legal possession, in others not.

[(c) ]See per Lord Cairns, 7 H. L. at p. 797. This principle applies to sale and delivery by an auctioneer without notice of the apparent owner’s want of title: Consolidated Co. v. Curtis, ’92, 1 Q. B. 495, 61 L. J. Q. B. 325.

[(d) ]Blackburn, J., 7 H. L. 764, 768.

[(e) ]See last note.

[(f) ]Should we say “honest and reasonable”? It seems not; a person doing a ministerial act of this kind honestly but not reasonably ought to be liable for negligence to the extent of the actual damage imputable to his negligence, not in trover for the full value of the goods; and even apart from the technical effect of conversion, negligence would be the substantial and rational ground of liability. Behaviour grossly inconsistent with the common prudence of an honest man might here, as elsewhere, be evidence of bad faith.

[(g) ]See Stephens v. Elwall (1815) 4 M. & S. 259; 16 R. R. 458; Barker v. Furlong, ’91, 2 Ch. 172, 60 L. J. Ch. 368, p. 318, above.

[(h) ]7 Hen. VII. 22, pl. 3, per Martin. Common learning in modern books.

[(h) ]Biddle v. Bond (1865) 6 B. & S. 225, 34 L. J. Q. B. 137, where it is said that there must be something equivalent to eviction by title paramount.

[(i) ]See Sheridan v. New Quay Co. (1858) 4 C. B. N. S. 618, 28 L. J. C. P. 58; European and Australian Royal Mail Co. v. Royal Mail Steam Packet Co. (1861) 30 L. J. C. P. 247; Jessel M. R. in Ex parte Davies (1881) 19 Ch. Div. 86, 90.

[(k) ]Rogers v. Lambert, ’91, 1 Q. B. 318, 60 L. J. Q. B. 187, following Biddle v. Bond, note (h).

[(l) ]Blackburn J., L. R. 1 Q. B. 614; Cooper v. Willomatt, 1 C. B. 672, 14 L. J. C. P. 219. It can be a trespass only if the bailment is at will.

[(m) ]Donald v. Suckling (1866) L. R. 1 Q. B. 585, 35 L. J. Q. B. 232.

[(n) ]Halliday v. Holgate (1868) Ex. Ch. L. R. 3 Ex. 299; see at p. 302, 37 L. J. Ex. 174.

[(o) ]In Johnson v. Stear (1863) 15 C. B. N. S. 330, 33 L. J. C. P. 130, nominal damages were given; but it is doubtful whether, on the reasoning adopted by the majority of the Court, there should not have been judgment for the defendant: see 2 Wms. Saund. 114; Blackburn J., L. R. 1 Q. B. 617; Bramwell L. J., 3 Q. B. D. 490.

[(p) ]Mulliner v. Florence (1878) 3 Q. B. Div. 484, 47 L. J. Q. B. 700, where an innkeeper sold a guest’s goods. A statutory power of sale was given to innkeepers very shortly after this decision (41 & 42 Vict. c. 38), but the principle may still be applicable in other cases.

[(q) ]Chinery v. Viall (1860) 5 H. & N. 288, 29 L. J. Ex. 180. This rule cannot be applied in favour of a sub-vendor sued for conversion by the ultimate purchaser, there being no privity between them: Johnson v. Lancs. & Yorkshire R. Co. (1878) 3 C. P. D. 499.

[(r) ]“A man cannot merely by changing his form of action vary the amount of damage so as to recover more than the amount to which he is in law really entitled according to the true facts of the case and the real nature of the transaction:” per Cur. 29 L. J. Ex. 184.

[(s) ]Fenn v. Bittleston (1851) 7 Ex. 152, 21 L. J. Ex. 41; where see the distinctions as to trespass and larceny carefully noted in the judgment delivered by Parke B.

[(t) ]L. R. 1 Q. B. at p. 614.

[(u) ]Seton v. Lafone (1887) 19 Q. B. Div. 68, 56 L. J. Q. B. 415.

[(x) ]Bristol and W. of England Bank v. Midland R. Co., ’91, 2 Q. B. 653, 61 L. J. Q. B. 115, 65 L. T. 234, C. A.

[(y) ]Lord Hatherley, Jacobs v. Seward (1872) L. R. 5 H. L. 464, 472, 41 L. J. C. P. 221.

[(z) ]Litt. s. 323.

[(a) ]Murray v. Hall (1849) 7 C. B. 441, 18 L. J. C. P. 161, and Bigelow L. C. 343.

[(b) ]Wilkinson v. Haygarth (1846) 12 Q. B. 837, 16 L. J. Q. B. 103, Co. Litt. 200.

[(c) ]Job v. Potton (1875) 20 Eq. 84, 44 L. J. Ch. 262.

[(d) ]’92, 2 Q. B. 202, 61 L. J. Q. B. 709, C. A.

[(e) ]Cp. Fenn v. Bittleston (1851), 7 Ex. 152, p. 326, above, and similar cases cited in text. Qu. whether, on the facts, B. was even a bailee, or was not rather in the position of a servant having bare custody. The action would have been detinue or trover under the old practice, and was so treated by the Court.

[(f) ]Graham v. Peat (1801) 1 East 244, 246, 6 R. R. 268; Jeffries v. G. W. R. Co. (1856) 5 E. & B. 802, 25 L. J. Q. B. 107; Bourne v. Fosbrooke (1865) 18 C. B. N. S. 515, 34 L. J. C. P. 164; extending the principle of Armory v. Delamirie (1722) 1 Str. 504 [505], and in 1 Sm. L. C.; D. 41. 3, de poss. 53, cf. Paulus Sent. Rec. v. 11 § 2: “sufficit ad probationem si rem corporaliter teneam.” And such use and enjoyment as the nature of the subject-matter admits of is good evidence of possession. See Harper v. Charlesworth (1825) 4 B. & C. 574, and other authorities collected in Pollock and Wright on Possession, 31—35.

[(g) ]Asher v. Whitlock (1865) L. R. 1 Q. B. 1, 35 L. J. Q. B. 17; cp. Cutts v. Spring (1818) 15 Mass. 135, and Bigelow L. C. 341; and Rosenberg v. Cook (1881) 8 Q. B. Div. 62, 51 L. J. Q. B. 170, and see further Pollock and Wright, op. cit. 95—99.

[(h) ]Buckley v. Gross (1863) 3 B. & S. 566, 32 L. J. Q. B. 129.

[(i) ]Lord Campbell C. J. in Jeffries v. G. W. R. Co. (1856) 5 E. & B. at p. 806, 25 L. J. Q. B. 107; but this does not seem consistent with the protection of even a manifestly wrongful possessor against a new extraneous wrong-doer. In Roman law a thief has the interdicts though not the actio furti, which requires a lawful interest in the plaintiff; in the common law it seems that he can maintain trespass.

[(k) ]Lord Denman C. J. in Rogers v. Spence (1844) 13 M. & W. at p. 581. This is precisely Savigny’s theory, which however is not now generally accepted by students of Roman Law. In some respects it fits the common law better. Mr. Justice Holmes in “The Common Law” takes a view ejusdem generis, but distinct.

[(l) ]With Ihering (Grund des Besitzesschutzes, 2d ed. 1869). Cp. the same author’s “Der Besitzwille,” 1889.

[(m) ]Bro. Ab. Trespas, pl. 131; 19 Hen. VI. 45, pl. 94, where it is pointed out that the trespasser’s act is one, but the causes of action are “diversis respectibus,” as where a servant is beaten and the master has an action for loss of service.

[(n) ]See Barker v. Furlong, ’91, 2 Ch. 172, 60 L. J. Ch. 368.

[(o) ]48 Edw. III. 20, pl. 8.

[(p) ]Litt. s. 71. If any doubt be implied in Littleton’s “it is said,” Coke’s commentary removes it. Such an act “concerneth so much the freehold and inheritance, as it doth amount in law to a determination of his will.”

[(q) ]Holford v. Bailey (1849) 13 Q. B. 426, 18 L. J. Q. B. 109, Ex. Ch.

[(r) ]Roberts v. Wyatt (1810) 2 Taunt. 268; 11 R. R. 566.

[(s) ]Wilson v. Barber (1833) 4 B. & Ad. 614.

[(t) ]27 Hen. VII. 39, pl. 49; cp. 16 Hen. VII. 2, pl. 7; Mennie v. Blake (1856) 6 E. & B. 842, 25 L. J. Q. B. 399.

[(u) ]12 Edw. IV. 13, pl. 9; but this was probably an innovation at the time, for Brian dissented. The action appears to have been on the case for spoiling the goods.

[(x) ]See Blades v. Higgs (1865) 11 H. L. C. 621, 34 L. J. C. P. 286, where this was assumed without discussion, only the question of property being argued. But probably that case goes too far in allowing recapture by force, except perhaps on fresh pursuit: see p. 347, below.

[(y) ]The common law might conceivably have held that there was a kind of privity of wrongful estate between an original trespasser und persons claiming through him, and thus applied the doctrine of continuing trespass to such persons; and this would perhaps have been the more logical course. But the natural dislike of the judges to multiplying capital felonies, operating on the intimate connexion between trespass and larceny, has in several directions prevented the law of trespass from being logical. For the law of trespass to land as affected by relation, see Barnett v. Guildford (1855) 11 Ex. 19, 24 L. J. Ex. 280; Anderson v. Radcliffe (1860) Ex. Ch., E. B. & E. 819, 29 L. J. Q. B. 128, and Bigelow L. C. 361—370.

[(z) ]Mr. Gibbons, Preface to the fifth edition of Gale on Easements, 1876.

[(a) ]Holmes, The Common Law, 240, 382.

[(b) ]1 Wms. Saund. 626; Harrop v. Hirst (1868) L. R. 4 Ex. 43, 46, 38 L. J. Ex. 1.

[(c) ]Thus Hopkins v. G. N. R. Co. (1877) 2 Q. B. Div. 224, 46 L. J. Q. B. 265, sets bounds to the exclusive right conferred by the franchise of a ferry, and Dalton v. Angus (1881) 6 App. Ca. 740, 50 L. J. Q. B. 689, discusses with the utmost fulness the nature and extent of the right to lateral support for buildings. Both decisions were given, in form, on a claim for damages from alleged wrongful acts. Yet it is clear that a work on Torts is not the place to consider the many and diverse opinions expressed in Dalton v. Angus, or to define the franchise of a ferry or market. Again the later case of Attorney-General v. Horner (1885) 11 App. Ca. 66, 55 L. J. Q. B. 193, interprets the grant of a market in sive juxta quodam loco, on an information alleging encroachment on public ways by the lessee of the market, and claiming an injunction.

[(d) ]Holford v. Bailey, Ex. Ch. (1848-9) 13 Q. B. 426, 18 L. J. Q. B. 109. See the authorities collected in argument, s. c. in court below, 8 Q. B. at p. 1010.

[(e) ]Vaughan C. J., Thomas v. Sorrell, Vaughan 351.

[(f) ]Wallis v. Harrison (1838) 4 M. & W. 538, 8 L. J. Ex. 44.

[(f) ]Wood v. Leadbitter (1845) 13 M. & W. 838, 14 L. J. Ex. 161; Hyde v. Graham (1862) 1 H. & C. 593, 32 L. J. Ex. 27. A contract to carry passengers does not constitute or include a licence so as to let in this doctrine, though part or the whole of the journey may be on land belonging to the railway company or other carrier: Butler v. M. S. & L. R. Co. (1888) 21 Q. B. Div. 207, 57 L. J. Q. B. 564. The reasoning is perhaps open to criticism: see L. Q. R. v. 99.

[(g) ]See Frogley v. Earl of Lovelace (1859) Joh. 333, where however the agreement was treated as an agreement to execute a legal grant.

[(h) ]Wood v. Leadbitter, 13 M. & W. 838, 844, 14 L. J. Ex. 161.

[(i) ]See further 2 Wms. Saund. 363—365, or Cooley on Torts 51.

[(k) ]39 Hen. VI. 7, pl. 12.

[(l) ]Cornish v. Stubbs (1870) L. R. 5 C. P. 334, 39 L. J. C. P. 202; Mellor v. Watkins (1874) L. R. 9 Q. B. 400.

[(m) ]Wood v. Leadbitter, note (h), last page.

[(n) ]Winter v. Brockwell (1807) 8 East 308, 9 R. R. 454. This class of cases is expressly recognized and distinguished in Wood v. Leadbitter, 13 M. & W. at p. 855.

[(o) ]Liggins v. Inge (1831) 7 Bing. 682, 694, per cur.

[(p) ]Ibid.

[(q) ]Wood v. Leadbitter, p. 338, above; Raffey v. Henderson (1851) 17 Q. B. 574, 21 L. J. Q. B. 49; Hewitt v. Isham (1851) 7 Ex. 77, 21 L. J. Ex. 35 (showing that conversely what purports to be a reservation in a parol demise may operate as a licence).

[(r) ]See Plimmer v. Mayor of Wellington, N. Z. (1884) 9 App. Ca. 699, 53 L. J. P. C. 104, where the two principles do not appear to be sufficiently distinguished. Cp. McManus v. Cooke (1887) 35 Ch. D. 681, 696, per Kay J.; 56 L. J. Ch. 662.

[(s) ]Cooley on Torts, 307—310.

It seems to have sometimes been thought in America that the only difficulty arises from the Statute of Frauds, which is of course a mistake: Wood v. Leadbitter, p. 338, above. The limits of the doctrine are in this country fixed by Ramsden v. Dyson (1866) L. R. 1 H. L. 129.

[(t) ]See Smart v. Jones (1864) 33 L. J. C. P. 154.

[(u) ]See Hyde v. Graham, note (f), p. 338.

[(x) ]Chap. XII. below, ad fin.

[(y) ]Compare Nuttall v. Bracewell (1866) L. R. 2 Ex. 1, 36 L. J. Ex. 1, with Ormerod v. Todmorden Mill Co. (1883) 11 Q. B. Div. 155, 52 L. J. Q. B. 445; and see Gale on Easements, 6th ed. 42, 283. Contra the learned editors of Smith’s Leading Cases, in the notes to Armory v. Delamirie.

[(z) ]Corby v. Hill (1858) 4 C. B. N. S. 556, 27 L. J. C. P. 318. See more in Chap. XII. below.

[(a) ]Cooley on Torts, 323. For the remedial powers given to justices of the peace by later statutes, see Lambarde’s Eirenarcha, cap. 4; 15 Ric. II. c. 2, is still nominally in force. As to what amounts to forcible entry, Jones v. Foley, ’91, 1 Q. B. 730, 60 L. J. Q. B. 464.

[(b) ]Beddall v. Maitland (1881) 17 Ch. D. 174, 50 L. J. Ch. 401; Edwick v. Hawkes (1881) 18 Ch. D. 199, 50 L. J. Ch. 577, and authorities there discussed.

[(c) ]Lord Cairns in Lows v. Telford (1876) 1 App. Ca. at p. 421.

[(d) ]Lows v. Telford (1876) 1 App. Ca. 414, 45 L. J. Ex. 613. Mr. Lightwood seems right in pointing out (Possession of Land, Lond. 1894, p. 38) that even if complete physical possession had not been gained the decision would be justified by the rule that, in case of doubt, legal possession follows title.

[(e) ]See the judgment of Fry, J. in Beddall v. Maitland, and Edwick v. Hawkes, note (b), last page.

[(f) ]Lambarde’s Eirenarcha, cap. 4, p. 142, ed. 1610.

[(g) ]Ib. 148.

[(h) ]F. N. B. 248 H., Bro. Ab. Forcible Entry, 29.

[(i) ]Newton v. Harland (1840) 1 M. & G, 644, 1 Scott N. R. 474; in Harvey v. Brydges (1845) 14 M. & W. at pp. 442-3, they declared themselves unconverted.

[(k) ]Tindal C. J. said that possession gained by forcible entry was illegal: 1 M. & G. 658.

[(l) ]See Lightwood on Possession of Land, p. 141.

[(l) ]Browne v. Dawson (1840) 12 A. & E. 624, 629, 10 L. J. Q. B. 7. If a new trespasser entered in this state of things, could the trespasser in inchoate occupation sue him, or the last possessor? Possibly both.

[(m) ]Mellish L. J., Ex parte Fletcher (1877) 5 Ch. Div. 809, 812.

[(n) ]Holmes v. Wilson (1839) 10 A. & E. 503; Bowyer v. Cook (1847) 4 C. B. 236, 16 L. J. C. P. 177; and see 2 Wms. Saund. 496.

[(o) ]1 Wms. Saund. 20.

[(p) ]Reg. v. Riley (1857) Dears. 149, 22 L. J. M. C. 48.

[(q) ]Blades v. Higgs (1861) 10 C. B. N. S. 713, but the reasons given at page 720 seem wrong, and the decision itself is contrary to the common law as understood in the thirteenth century. One who retook his own goods by force (save, perhaps, on fresh pursuit) was a trespasser and lost the goods. It was even thought needful to state that he was not a felon. See Britton, ed. Nicholls, i. 57, 116. At all events maim or wounding is not justified for this cause: but violence used in defence of a wrongful possession is a new assault, and commensurate resistance to it in personal self-defence is justifiable.

[(r) ]Patrick v. Colerick (1838) 3 M. & W. 483, explaining Blackst. Comm. iii. 4.

[(s) ]Per Littleton J., 9 Edw. IV. 35, pl. 10.

[(t) ]Blackstone, l. c.; Anthony v. Haney (1832) 8 Bing. 187, and Bigelow L. C. 374.

[(u) ]Tindal C. J. in Anthony v. Haney: but this seems doubtful.

[(x) ]Semayne’s Ca. (1604-5) 5 Co. Rep. 91 b, and in 1 Sm. L. C.

[(y) ]Glasspoole v. Young (1829) 9 B. & C. 696; Garland v. Carlisle (1837) 4 Cl. & F. 693. As to the protection of subordinate officers acting in good faith, see in the Chapter of General Exceptions, p. 106, above.

[(z) ]Burdett v. Abbot (1811) 14 East 1, 12 R. R. 450, a classical case.

[(a) ]And it is contempt in the sheriff himself not to execute such process by breaking in if necessary: Harvey v. Harvey (1884) 26 Ch. D. 644, 51 L. T. 508. Otherwise where attachment is, or was, merely a formal incident in ordinary civil process.

[(b) ]See West v. Nibbs (1847) 4 C. B. 172, 17 L. J. C. P. 150.

[(c) ]As to distress in general, Blackst. Comm. book iii. c. 1.

[(d) ]“All chattels whatever are distrainable damage feasant;” Gilbert on Distress and Replevin (4th ed. 1823) 49. A locomotive has been distrained damage feasant; Ambergate, &c. R. Co. v. Midland R. Co. (1853) 2 E. & B. 793; it was not actually straying, but had been put on the Midland Company’s line without the statutable approval of that company.

[(e) ]Roscoe v. Boden, 10 R. June, 229; ’94, 1 Q. B. 608, nom. Boden v. Roscoe.

[(f) ]Cape v. Scott (1874) L. R. 9 Q. B. 269, 43 L. J. Q. B. 65. It is settled that a commoner can distrain the cattle of a stranger, notwithstanding that an action of trespass would not lie (22 Ass. pl. 48) for the disturbance.

[(g) ]Goodwin v. Cheveley (1859) 4 H. & N. 631, 28 L. J. Ex. 298.

[(h) ]2 Wms. Saund. 671.

[(i) ]Co. Litt. 142 a.

[(k) ]Vaspor v. Edwards (1701) 12 Mod. 660, where the incidents of damage feasant generally are expounded, and see p. 356, below.

[(l) ]Tyrringham’s Ca., 4 Co. Rep. 38 b.

[(m) ]Rea v. Sheward (1839) 2 M. & W. 424.

[(n) ]Nash v. Lucas (1867) L. R. 2 Q. B. 590. Otherwise where the window is already partly open: Crabtree v. Robinson (1885) 15 Q. B. D. 312, 54 L. J. Q. B. 544.

[(o) ]12 & 13 Vict. c. 92, s. 6; 17 & 18 Vict. c. 60, s. 1; superseding an earlier Act of William IV. to the same effect. See Fisher’s Digest, Distress, s. t. “Pound and Poundage.”

[(p) ]See p. 157, above.

[(q) ]The justification or right, whichever it be, does not apply where there is only a limited dedication of a way, subject to the right of the owner of the soil to do acts, such as ploughing, which make it impassable or inconvenient at certain times: Arnold v. Holbrook (1873) L. R. 8 Q. B. 96, 42 L. J. Q. B. 80.

[(r) ]Cp. Littleton J. in Y. B. 9 Ed. IV. 35; “If a man by negligence suffer his house to burn, I who am his neighbour may break down the house to avoid the danger to me, for if I let the house stand, it may burn so that I cannot quench the fire afterwards.”

[(s) ]21 Hen. VII. 27, pl. 5 (but the case seems really to belong to Hilary term of the next year, see S. C., Keilw. 88 a; Frowike was still Chief Justice of Common Pleas in Trinity term 21 Hen. VII., ib. 86 b, pl. 19; he died in the following vacation, and Rede was appointed in his stead, ib. 85 b, where for Mich. 22 Hen. VII. we should obviously read 21); cp. 37 Hen. VI. 37, pl. 26; 6 Ed. IV. 8, pl. 18, which seems to extend the justification to entry to retake goods which have come on another’s land by inevitable accident; see Story, Bailments, § 83 a, note.

[(t) ]Selby v. Nettlefold (1873) L. R. 9 Ch. 111, 43 L. J. Ch. 359.

[(u) ]Paul v. Summerhayes (1878) 4 Q. B. D. 9, 48 L. J. M. C. 33.

[(x) ]P. 332, above.

[(y) ]21 Ed. IV. 76 b, pl. 9.

[(z) ]This is in respect of the public character of the innkeeper’s employment.

[(a) ]The liability of a distrainor for rent justly due, in respect of any subsequent irregularity, was reduced to the real amount of damage by 11 Geo. II. c. 19, s. 19: but this does not apply to a case where the distress was wholly unlawful: Attack v. Bramwell (1863) 3 B. & S. 520, 32 L. J. Q. B. 146. Distrainors for damage feasant are still under the common law.

[(b) ]The Six Carpenters’ Case, 8 Co. Rep. 146 a, b.

[(c) ]Cp. Pollock and Wright on Possession, 144, 201.

[(d) ]11 Hen. IV. 75, pl. 16.

[(e) ]Oxley v. Watts (1785) 1 T. R. 12, 1 R. R. 133.

[(f) ]Ash v. Dawnay (1852) 8 Ex. 237, 22 L. J. Ex. 59, sed qu. if according to the old authorities, see Pollock and Wright on Possession, 82.

[(g) ]Six Carpenters’ Case, note (b).

[(h) ]West v. Nibbs (1847) 4 C. B. 172, 17 L. J. C. P. 150.

[(i) ]Littleton in 33 Hen. VI. 27, pl. 12.

[(k) ]West v. Nibbs, 4 C. B. at p. 184, per Wilde C. J.

[(l) ]Wilde C. J. l. c., Littleton ubi sup.

[(m) ]Vaspor v. Edwards, 12 Mod. 660, per Holt C. J.

[(n) ]See Bowyer v. Cook (1847) 4 C. B. 236, 16 L. J. C. P. 177; Reynolds v. Edwards (1794) 6 T. R. 11, even where the defendant had intended and endeavoured to avoid trespassing; but this was doubted by Pollock C. B. in Swinfen v. Bacon (1860) 6 H. & N. 184, 188, 30 L. J. Ex. 33, 36.

[(o) ]County Courts Act, 1888, s. 116 (substituted for like provisions of the repealed Acts of 1867 and 1882); see “The Annual Practice,” 1895, p. 188 sqq.

[(p) ]42 & 43 Vict. c. 59.

[(q) ]F. W. Maitland, “Justice and Police,” p. 13.

[(r) ]At all events the threat of spring-guns, still not quite unknown, can do the occupier no good, for to set spring-guns is itself an offence.

[(s) ]Lockhart’s Life of Scott, vii. 317, ed. 1839, ex relatione Basil Hall.

[(t) ]Goodson v. Richardson (1874) L. R. 9 Ch. 221, 43 L. J. Ch. 790.

[(u) ]Cooper v. Crabtree (1882) 20 Ch. Div. 589, 51 L. J. Ch. 585. In Allen v. Martin (1875) 20 Eq. 462, the plaintiffs were in possession of part of the land affected.

[(x) ]See L. R. 9 Ch. 224, 20 Ch. Div. 592.

[(y) ]Brown v. Notley (1848) 3 Ex. 221, 18 L. J. Ex. 39; Pilgrim v. Southampton, &c. R. Co. (1849) 8 C. B. 25, 18 L. J. C. P. 330.