the defendant on the first count, being so directed by the presiding judge, and for the plaintiffs on the last two counts; and the case is before us on the defendant's exceptions.

The facts in the case may be briefly stated as follows: The plaintiffs were tenants at will of one Marston. On February 24, 1903, Marston executed a lease to the defendant for term of eighteen months from March 1, 1903. On March 10, the defendant gave the plaintiffs notice in writing that it had taken a lease of the premises and requested the plaintiffs to quit the premises, as it desired to occupy the same for its own use. An action by summary process was brought by the defendant to recover possession of the premises. On March 27, the agents and servants of the defendant, by its direction went to the premises occupied by the plaintiff and immediately after gaining possession removed the plaintiff's goods to a storehouse. On the next day the defendant gave notice to the plaintiffs where the goods were, and offered to remove them to any place the plaintiffs might desire, without any expense to them. The evidence was conflicting as to whether there was any opposition to the removal of the goods after possession was obtained; and there was evidence tending to show that the plaintiffs resisted the attempt of the defendant to enter the premises and to obtain possession, and requested the return of a trunk alleged to contain money after it had been placed on a wagon for removal, but were driven away. . .

The remaining exception relates to the refusal of the judge to give instruction as requested and to the instructions given. The request was as follows:

"If the defendant had the right to remove the goods of the plaintiffs and to obtain possession of the premises wherein they were, the defendant was justified in taking reasonable precaution to prevent the loss or damage to the goods or effects of the plaintiffs by putting them in a suitable place for storage at the expense of the defendant, subject to the order of the plaintiffs, giving them reasonable notice that the same were stored for safe keeping, subject to the order of the plaintiffs.”

The instructions given were as follows:

"... If you think that the defendant undertook to remove the goods beyond the premises to the storehouse, . . . and that any property was lost afterwards, although it was taken by somebody not a servant of the defendant, the defendant is responsible. All the defendant had a legal right to do with the goods was to take them and remove them from the premises; it could set them down in the street, set them down anywhere. From the moment they were off the premises, the right which the law gave the defendant to take possession of the goods was at an end. If, after that time, it exercised any control over the goods in opposition to the will of the plaintiffs, they were responsible, and they were responsible from that moment for the value of all the goods which they so took.”

We are of opinion that on the evidence in the case the instruction requested was stated too broadly and the rulings were right. The de

fendant had a right to put the goods off the premises. Clark v. Keliher, 107 Mass. 406. But it had no right to exercise control or dominion over them beyond this, without the assent of the plaintiffs, express or implied.

In the case before us there was evidence that the plaintiffs were present, and, if so, they could have taken care of their own goods. There was also evidence of a refusal by the defendant's agents and servants to deliver up a trunk said to contain money. The case differs from Lash v. Ames, 171 Mass. 487, in several respects. In that case the house was full of old building materials, which had to be removed from the building and could not be placed in the street without becoming a public nuisance. It was necessary that they be removed away, and the owner of the land offered to take them wherever the tenant wished. The tenant would give no directions. In the case before us, the taking away and storing were without consulting the plaintiffs. The order must be

J. J. Pickmann, for the defendant.

Exceptions overruled.

S. J. Elder, E. A. Whitman & J. T. Pugh, for the plaintiffs.1

Topic 4a. Recaption of Realty

591. W. S. An exact Collection of Choice Declarations, with Pleas, etc. (1653. Pt. 3, p. 5.) Declaration in an Action of Forcible Entry and Detainer. [Printed ante, Part I, as No. 273.]

Id. (Trespass, p. 61.) Plea by an Owner in an Action of Trespass for Battery. And the aforesaid S. P. by R. H. his Attorney comes and defends the force and injury when, etc., and as to the coming by force and armes, or whatsoever which is against the peace etc. as also the whole Trespass aforesaid, beside the breaking of the Closes and Houses aforesaid, and the assault aforesaid saies, that he is nothing thereof guilty etc. and as to the breaking of the Closes and Houses, and the assault aforesaid the same S. P. sayes that the Plaintiffe ought not to have his action aforesaid against him; Because he saith that . . . the same S. P. was thereof seized in his demesne as of Fee; and that the aforesaid E. claiming the Tenements aforesaid with the appurtenances said S. P.] the aforesaid time wherein etc. peaceably re-entered, and the Houses and Closes broke, and upon the same E. then being there, softly laid his hands, and commanded her the said E. then and there to goe out of the Messuages and Gardens aforesaid, under the danger which by the law otherwise might come to her the said E. as it was lawfull for him to doe. Which said soft laying on of hands, and entry, and breach of Closes and houses aforesaid, out of the house aforesaid, is the same assault whereof the aforesaid E. above now complaineth; and this hee is ready to aver; whereupon he prayes judgment whether the aforesaid E. ought to have her action aforesaid against him, etc.

[the

592. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, pp. 530, 532, 559, 561.) "Trespass" (D, a). 3. Trespass vi & armis. The defendant said that the plaintiff held three acres of him by fealty

1 [For annotations to Topic 4, see the citations to No. 596, post.]

and 3d., and for the rent arrear he distrained; judgment of the writ vi & armis, and a good plea. Brooke, Brief, pl. 115, cites 8 H. 4, 16. . . .

19. HOLT, C. J., declared for law, that no action of trespass vi & armis would lie for a tenant at will against his landlord for the lord's entering or distraining for rent, etc. 11 Mod. 209, pl. 13.

2. In trespass the defendant said, that the place was his frank-tenement the day of the trespass supposed; judgment si actio. The plaintiff said, that defendant disseised his father, who died, and the plaintiff entered; judgment, etc. And the defendant durst not demur in his first plea; for, by all the justices, the disseisin may well be tried in trespass, etc. And it does not appear if the trespass was before the entry or after, but it was tempore ingressus, etc. as it seems by the pleading, and was of grass spoiled, etc. Brooke, Trespass, pl. 80, cites 7 H. 4. 4.

13. Trespass for taking and carrying away his trees. The defendant pleaded the common bar, viz. that the place where the trespass was supposed to be, is his (the defendant's) freehold, and so justifies as in his freehold, etc. But adjudged ill; for this is no plea in trespass de bonis asportatis, but peculiar only to a trespass quare clausum fregit. Quod nota. Carth. 176, Hill. 2 & 3 W. & M. B. R. Alstone v. Hutchinson.

592 a. Revised Statutes of Illinois. 1874. (ch. 57, § 1.) Forcible Entry and Detainer. No person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he shall not enter with force, but in a peaceable manner.

THIS was an action of trespass quare clausum fregit. The defendant pleaded not guilty. The trespass was alleged to be committed on lot No. 80, in the township of Junius, and county of Seneca. The cause was tried before Mr. Justice SPENCER, in 1795. One Green lived on the lot, and began to make improvements; and continued to reside on the lot until March, 1805. The plaintiff entered into possession of the lot on the 27th February, 1805, under a permission from Murray & Mumford, of the city of New York, and with the consent of Green, who had previously agreed to surrender up the possession to Murray & Mumford: and at the time the plaintiff took possession, Green told the witness that he consented to it, and that he was to go out on the 1st March. The plaintiff was proved to be in the actual and peaceable possession of the lot until June, and cut hay on a part of the lot in July; and, while the plaintiff, with others, was mowing there, the defendant came to the plaintiff, and told him he must quit the meadow where he was mowing, and struck him with a stick. The defendant at the same time said that the plaintiff had possession of the lot, and that he meant to dispossess him; if he could not do it by fair means, he would by his stick.

The defendant claimed the meadow. . . . The defendant produced a deed from Green to him for all the right and title of Green to the premises in question. . . . On the 7th November, 1804, Green gave a writing under his hand and seal to the defendant, acknowledging himself to be in possession of the improvements of lot No. 80, in Junius, which he had sold to the defendant, and promising to deliver up the peaceable and quiet possession of the same to the defendant, his heirs and assigns, on the 1st of March following.

The judge said, that unless the plaintiff consented to a nonsuit he should charge the jury, that the evidence produced by the defendant was sufficient to support the plea of liberum tenementum, and that the same might be given in evidence under the general issue. He then called the plaintiff, who submitted to a nonsuit, with leave to move for a new trial.

Hopkins, for the plaintiff. . . . Admitting that the defendant had a right of entry, this could only justify a peaceable and formal entry on the land, for the purpose of vindicating his rights, and not a violent and forcible entry. . . .

T. A. Emmet and Riker, contra. . . . A person who has a title or right of entry on land may enter with force, provided it is not made. with that degree of force which would amount to an indictable offence. A person cannot be indicted for a bare trespass, though stated to be vi et armis. Indictments under the statute against forcible entries and detainers, have been frequently quashed, where there was no evil or malicious intent, and the force used was moderate. . . . Blackstone compares the right of entry on land, by the real owner, to the right of recaption of personal property. A person may retake his own property by force; and though he may be liable for a breach of the peace, yet no action of trespass lies; and if the person who enters by force, has a good title, no action of trespass will lie. Not a precedent can be found for an action of trespass in such a case. To maintain trespass, there must be not only a possession, but a lawful possession. .

Hopkins, in reply, observed, that though a tenant at sufferance might be turned out by the landlord or owner, yet a person in possession, and claiming title, could not be turned out by force. . .

SPENCER, J., delivered the opinion of the court. It is essential to consider, in the first place, the rights of the parties in the premises. It is apparent to me, that the plaintiff's title, under Murray & Mumford, is merely colorable, and that he, in fact, gained nothing from them; and that the plaintiff must be considered as having acquired his possession under Green. Consequently, he stands precisely in his place, and must be regarded as a tenant at sufferance. I think the nonsuit was correct.

1. Trespass is a possessory action, founded merely on the possession, and it is not at all necessary that the right should come in question. (Willes's Rep. 221.) If, therefore, the defendant can show himself entitled to the land itself, or to the possession, he cannot be rendered

responsible to a person having neither a right to the land nor to the possession. At common law, and prior to the statutes to prevent forcible entries, wherever a right of entry existed, the disseisee might lawfully regain the possession by force. (2 Hawkins, c. 64.) In a case bearing analogy to the present, of personal property, the right of recaption exists, with the caution that it be not exercised riotously or by a breach of the peace; for should these accompany the act, the party would then be answerable criminally; but the riot or force would not confer a right on a person who had none, nor would they subject the owner of the chattel to a restoration of it to one who was not the owner. With respect to real property, the owner having a right of entry, may, since the statutes, enter peaceably upon one who is in possession without right, by the very terms of those statutes. (3 Term Rep. 292; 3 Bl. Com. 174.) If the entry in such case be with a strong hand, or a multitude of people, it is an offence for which the party entering must answer criminally; but it would be an absurdity to say, that he must also be responsible in damages as for an injury to the person who has no right, but is himself a wrongdoer, in consequence of his illegal entry. . . . I am warranted, therefore, in concluding, that, though the statutes of forcible entry and detainer have so far altered the common law as to render persons having a right of entry indictable as for breach of the peace in entering forcibly, yet, as respects the civil remedy, it remains as it was before the passing of the statutes; and, consequently, where the party entering has a right to the possession, he cannot be made answerable in damages to a party who has not right, and is himself a tort-feasor. . .

It has been strongly urged, that this doctrine tends to tumult and violence, which the law ought not to countenance; but sufficient restraints will be found in the remedy by indictment, and in the liberty with which jurors will give damages where a wrongdoer undertakes to enter without right. In one point of view, the doctrine is salutary, inasmuch as it will lessen the inducements, afforded by legal delays, to the unjust acquisition of the possession of real property. But with arguments ab inconvenienti the Court has no concern, if the law is, as I think it to be, so settled.

. 2. Very different considerations are applicable to an action for an assault and battery and an action of trespass quare clausum fregit. In an action for the personal injury, the defendant, who is not in possession, cannot justify an entry and the exercise of personal violence; but in an action for an injury to the land itself, he may justify the force as respects the possession. . . .