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the subsequent act, quo animo, or to what intent he entered, for acta exteriora indicant interiora secreta. Vide 11, H 4 75, b. But when the party gives an authority or license himself to do any thing, he cannot, for any subsequent cause, punish that which is done by his own authority or license, and therefore the law gives authority to enter into a common inn, or tavern; 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. Vide 12, E 4, 8, b. 21, E 4; 19 b., 5 H 7, 11 a; 9, H., 6, 29, b.; 11 H. 4, 75 b.; 3 H. 7, 15 b.; 28 H, 6, 5 b. 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, or the owner for damage, feasant, works or kills the distress, or 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, as it appears in all the said books. So if a purveyor takes my cattle by force of a commission, for the king's house, it is lawful; but if he sells them in the market, now the first taking is wrongful." From this case which is one of the most celebrated in Lord Coke's Reports three points are collected.55

(1) That if a man abuse an authority given him by the law, he becomes a trespasser ab initio.

(2) That in an action of trespass, if the authority be pleaded, the subsequent abuse may be replied.

Smith's Leading Cases.

66 This paragraph is based upon note

to Six Carpenters Case in

(3) That a mere nonfeasance does not amount to such an abuse as renders a man a trespasser ab initio.

The first of these points has been frequently confirmed. In Oxley vs. Watts,& the plaintiff sued the defendant in trespass for taking a horse; the defendant justified taking him as an estray. Replication, that, after the taking mention in the declaration, the defendant worked the horse, and so became a trespasser ab initio. One consequence of this doctrine was, that, if a party, entering lawfully to make a distress, committed any subsequent abuse, he became a trespasser ab initio. In Gargrave vs. Smoth 57 and Dye vs. Leatherdale,58 this was expressly decided. As it was found, however, that this doctrine bore extremely hard on landlords, stat. 11, G 2, c. 19, s. 19, provided, “That where any distress shall be made for any rent justly due and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not be deemed unlawful, nor the distrainer a trespasser ab initio; but the party grieved may recover satisfaction for the damage in a special action of trespass, or on the case, at the election of the plaintiff, and if he recover, he shall have full costs.” The true construction of the above words, "trespass, or on the case,” is, that the party injured must bring trespass if the injury be a trespass, and case, if it be the subject matter of an action on the case. The nature of the irregularity determines the form of action. Hence, case ought to be brought for an irregularity in omitting to appraise the goods before selling them, and trespass for remaining in possession beyond the five days.se

WIT, R., 12.

221. ** 3 Wilson, 20.

$Salk.,

80 Winterbourne vs. Morgan, 11

East, 395.

As to the right of a plaintiff to reply the abuse, where it is such as renders the defendant, who has pleaded the authority which he has abused, a trespasser ab initio; that is established by several cases. In the principal case it seems to have been assumed; for no objection was taken to the replication as being a departure; but Lord Coke says, that the only point was, whether the denying to pay made the first entry into the tavern tortious. In Gargrave vs. Smith 60 trespass for taking goods. Pleas, That the defendant distrained them damage-feasant. Replication, that he afterwards converted them to his own use. "On demurrer, it was holden to be no departure, but to make good the declaration; for he that abuses a distress is a trespasser ab initio; and it would be of no avail to the plaintiff to state the conversion in this declaration for it is in no ways necessary to his action, and, if alleged need not be answered. It would be out of time to state it in the declaration, but it must come in the replication.”

SECTION 33. TRESPASS TO TRY TITLE. The action of trespass to try title is in action in use in the State of Texas to take the place of the action of ejectment. As this form of action is peculiar to this one State, it cannot be profitably considered in a work of this size 81

so Salk., 221, B. N. P., 81.

a See the Texas Statutes.

CHAPTER VI.

TRESPASS ON PERSONAL PROPERTY.

SECTION 34. WHAT CONSTITUTES. The essentials to a right of an action for a trespass to personal property differ in one very important respect, from those in the case of a right of action for trespass against a person, or upon real property. To sustain actions of the two latter classes no actual damage need be alleged or proved. A mere touching of the person, a mere stepping upon the ground of another, may furnish the basis for an action of trespass, but to sustain an action for trespass to personal property, some actual damage to the property, or interference with its possession, must be proved. Such damage need not be great; it has been held that the mere scratching of the panel of a carriage is sufficient.

The limitations of the action for trespass upon personal property was originally even more marked than at present, the action only lying in cases of a total destruction, or a carrying away of the personal property.? Destruction of personal property could be · Fouldes vs. Willoughby, 8 M. &

biting of the cattle recites that W., 549.

some of the beasts were killed, "The Register has its writ of

and it is doubtless true that trespass vi et armis for the

where none of a man's chattels wrongful chasing and biting of

were actually destroyed or cattle by dogs, whereby the

taken away the injury was cattle were injured; also for the ordinarily deemed too insignimaiming of villeins, whereby

ficant for the king's court to they were rendered ineffective

take cognizance of. In such for their master's service.

situation the plaintiff naturally Reg. Brev. Orig., 94 b De preferred to apply for redress juinento interfecto et ovibus

to the inferior courts. In Y. fregatis. Compare the vicon

B., 12 Hen. IV., 8. pl. 15; tiel writ, 92 à De omnibus Hankford, J., in speaking in an frigatis.

action of trespass for private "The writ for the chasing and

nuisance, stated that by a cus

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redressed by an action of trespass vi et armis, and its carrying away by the action of trespass de bonis asportatis.

The rule as to what will constitute a trespass against personal property has been extended in modern times, until now, any unlawful interference with, or exercise of authority over, the goods of another, without his consent, is a trespass; and this extends not merely to the actual laying hold of, appropriating, or carrying away the goods, but also to any act of control or claim of dominion, even by words, whereby the use or possession of the goods is interfered with in any way, if only for an instant of time.

SECTION 35. CONVERSION. The most important class of trespasses to personal property are those known as conversions. Every act of control over personal property, without the owner's authority, and in violation of his rights, is a conversion. Sawing trees belonging to another into logs is a conversion, as is also making wheat into flour,' or the adulteration of liquor by a carrier. It is a convertom then prevailing throughout

tention being indicated to all England small trespasses

interfer with the goods under were to be presented in the

pretense of any right or authorseignorial courts, and that for

ity, amounts to a contructive offenses there cognizable, one

trespass. Haythorn vs. Rushwas not to sue out a common

forth, 19 N. J. L., 165, 38 law writ. It is largely for this

Am. Dec., reason, no doubt, that early • Needham vs. Rawbone, 6 I. B., instances are wanting of the

771 note, b 51 E. C. L., 771; use of trespass vi et armis for a

Conner vs. Allen, 33 Ala., 515; mere injury to personalty un

Monmouth First National Bank connected with a destruction or

vs. Dunbar, 19 IX. App., 558; asportation.” Street's Found

Scott vs. Perkins, 28 Me., 22, ation of Legal Liability Volume

48 Am. Dec., 470; Industrial, I, p. 15, note 2.

etc., Trust vs. Tod, 170 N. Y., See subject of Common Law

233; Arnold vs. Kelly, 4 W. Pleading, Volume XI, Subject

Va., 646.

• Baker vs. Wheeler, 8 Wend. • American and English Ency. of

(N. Y.), 505, 24 Am. Dec., Law, Vol. XXVIII, p. °587. ? Mayer vs. Springer, 192 m., 270. A claim of dominion, an in- * Dench vs. Walker, 14 Mass., 500.

540.

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