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Cottam V. Oregon City, 98 Fed. 570 (1899), there at dicta to the effect that
one who submits to arrest rather than pay a license tax, unlawfully de-
manded, and which if paid could therefore be afterwards recovered back


detention against the will of the plaintiff in order that there might
be a recovery. Under these circumstances it seems to me that
the court was entirely justified in refusing to charge further upon
such a proposition.-

Court of Exchequer, 1834. 1 Crompton, Meeson & Roscoes^ Rep. Z76.

Trespass for assault and false imprisonment. — Plea, the gen-
eral issue. The plaintiff, who sued by his next friend, was an in-
fant about ten years old. He was placed by his mother at a school
kept by the defendant. On the 24th of December the plaintiff's
mother went to the school and asked that the boy be permitted to
come home with her. The defendant refused to permit it unless
the tuition fee then due was paid. After repeated demands a writ of
habeas corpus was sued out, thereupon the plaintiff was sent home
seventeen days after the first request of his mother. No proof
was given that the plaintiff" knew of the denial to his mother, nor
was there any evidence of actual restraint upon him. On these
facts Gurney, B. was of the opinion that there was no evidence of an
imprisonment to go to the jury, and he nonsuited the plaintiff.

Comyn obtained a rule to set aside the nonsuit and for a new
trial, against which cause was now shown by

Hutchinson, for the defendant. — The nonsuit was right. There
was no corporal touch or restraint on the plaintiff.

Comyn and Butt, contra. — The boy was sent by his mother to
the defendant's school. She had authority to place him in the care
of the schoolmaster, and she had authority to determine his contin-
uance there. Now it was proved that the authority from the mother
to the master was withdrawn, and the defendant could not justify
the detention after such authority was withdrawn.

Here, when the authority to keep the boy was withdrawn, the
master persisted in detaining him for the purpose of extortion.
(Alderson, B. — The fallacy seems to me to be, that you assume, for
the purpose of your argument, that every boy at school is in prison.
If that were so, you would go a long way to convince us that when
the authority to keep him there is at an end, his remaining school
might be an imprisonment. That, however, is not so with regard to a
boy at school. In the case of a lunatic perhaps it might be different.
A person of full age restrained as a lunatic, might probably be
taken prima facie to be detained against his will.) The assent of

in an action of money had and received, has in a sense voluntarily sub-
mitted to the imprisonment and ought not to be permitted to recover dam-
ages therefor.

^Accord: Dunlevy v. Wolferman, 106 Mo. App. 46 (1904); Efroym-
son V. Smith, 29 Ind. App. 451 (1902), where a v^oman customer w^as ac-
cused by a clerk of stealing shoes and detained till another clerk was called
who explained the matter. But see Hershey v. O'Neill, 26 Fed. 168, C. C.
S. D. of N. Y. (1888), contra, semhle.


a child of such tender years may perhaps be assumed, in the first
instance, because the hiw will presume the assent of an infant to
what is for his benefit ; but that assent must be taken to be revoked
when the contract for schooling is determined by the act of the
mother. In the present case, the plaintiff was detained during the
holidays, and it may fairly be presumed that a keeping at school
during the holidays is against the will of a school-boy. (BoUand,
B. — The evidence did not bring the schoolmaster and the plaintiff
into contact, so as to show that there was any the least restraint of
the one upon the other.) The child was kept through the holidays,
and it ought to have been left to the jury, whether that was not
against the plaintiff's will. Besides, in the case of a child of such
tender years, the will of the parent is to be considered as the will
of the child, and in this case the will of the mother was sufficiently
expressed. The master declared distinctly that he would maintain
him until he was compelled by habeas corpus to deliver him up;
and he was detained at school, and such declaration of the master,
coupled with the fact of the boy remaining at school during the
holidays, was surely evidence to go to the jury that the master
had acted on such declaration and had kept the boy there against the
will both of his mother and himself. (Alderson, B. — It is clear
that the assent of the plaintiff" would put an end to an action in this
form ; that shows that the will of the mother is not the will of the
child. In the present case there was no proof that the master con-
ducted himself to the boy in a different manner in any respect
before and after the refusal to deliver him up to his mother ; as
against the mother he detained him unlawfully ; he says in effect to
the mother, I wall not give him up to you without a habeas corpus.
That might however be wnth or without the assent of the boy.
The plaintiff was bound to prove his dissent, and not to leave that
question in ambiguity.)

The judgment of the court was delivered on the next day.

Bolland, B.^ — This was an action of trespass for assault and
false imprisonment, brought by an infant by his next friend. The
facts of the case were these : the plaintiff had been placed by his
mother at the school kept by the defendant, and it appeared that
she had applied to take him away. The schoolmaster very improp-
erly refused to give him up to his mother, unless she paid an
amount w^hich he claimed to be due. The question is, whether it
appears upon the Judge's notes that there was any evidence of a
trespass to go to the jury? I am of opinion that there was not, and,
consequently, that this rule must be discharged. It had been argued
on the part of the plaintiff that the misconduct of the defendant
amounted to a false imprisonment. I can not find anything upon
the notes of the learned Judge which shows that the plaintiff' was
at all cognizant of any restraint. There are many cases which show
that it is not necessary, to constitute an imprisonment, that the
hand should be laid upon the person ; but in no case has any

^ The concurring opinion of Alderson, B., and Lord Lyndhurst are


conduct been held to amount to an imprisonment in the absence
of the party supposed to be imprisoned. An officer may make an
arrest without laying his hand on the party arrested ; but in the
present case, as far as we know, the boy may have been willing
to stay; he does not appear to have been cognizant of any restraint,
and there was no evidence of any act whatsoever done by the de-
fendant in his presence. I think that we can not construe the re-
fusal to the mother in the boy's absence, and without his being
cognizant of any restraint, to be an imprisonment of him against his
will; and therefore I am of the opinion that the rule must be dis-

Gurney, B. — This plaintiff complains of an assault and false
imprisonment. There was no evidence of any restraint upon him.
There was no evidence that he had any knowledge of his mother
having desired that he should be permitted to go home, nor that any-
thing passed between the plaintiff and the defendant which showed
that there was any compulsion upon the boy ; and there was nothing
to show that he was conscious that he was in any respect restrained.

Rule discharged. -

(c) Trespass to property.

Supreme Court of New York, 1815. 12 Johns. 408.

In Error, on certiorari to a justice's Court.

This was an action of trespass, brought by the plaintiff in
error against the defendant in error, for entering the plaintiff''s
house. The defendant pleaded not guilty; and, on the trial, the
plaintiff proved, that, he being in bed, (whether in the day time or
at night is not stated,) the defendant entered his house without per-
mission. The plaintiff's son, by order of his father, requested the
defendant to leave the house ; to which the defendant answered, that
he would go when he pleased. The plaintiff's wife then ordered the
defendant to go off, to which the defendant gave a similar answer.
The plaintiff then rose from bed, and ordered the defendant to leave
his house, but he still refused to go, and remained there half an
hour, without doing any other injury, and then departed.

The defendant moved for a nonsuit, and the justice decided that

'But see Robalina v. Armstrong, 15 Barb. 247 (N. Y. 1852), where a
n-iother of a bastard child, four years of age, as such entitled to its custody,
mic{ht maintain an action of false imprisonment in its name and right
against its putative father who had taken possession of it against her con-
sent; and Smith v. Peabody, 106 Mass. 262 (1871), where the defendant re-
fused to tell the mother of a pauper child, seven years old, where her child
was, it was held not to be false imprisonment in the absence of evidence
that the defendant had the child in his custody; and see also, Common-
wealth V. Nicker son, 5 Allen (Mass.) 518.

THE SIX carpenters' CASE. 8/

the proof was insufficient to sustain the action, and nonsuited the
plaintiff, with costs.

Per Curiam. To enter a dwelhng-house without Hcense, is, in
law, a trespass. Any person professing to keep an inn, thereby gives
general license to all persons to enter his house. But the house of
the plaintiff does not appear to have been an inn, and, therefore,
to render such an entry lawful, there must be a permission, express
or implied; and familiar intimacy may be evidence of general license
for such purpose.^ According to the evidence, here was no such
permission, and, therefore, the act of entering the plaintiff's house
vv'as a trespass.

Judgment reversed.^

i^ ' SECTION 5.

Trespass ab initio.


King's Bench, 1610. 8 Coke 146a.

In trespass brought by John Vaux against Thomas Newman,
carpenter, and five other carpenters, for breaking his house, and
for an assault and battery, i Sept. 7 Jac. in London, in the parish
of St. Giles extra Cripplegate, in the ward of Cripplegate, &c., and
upon the new assignment, the plaintiff assigned the trespass in a
house called the Queen's Head. The defendants to all the trespass
Procter fractioncm donuis pleaded not guilty ; and as to the breaking
of the house, said, that the said house procd' tempore quo, &c., ei
din antea et postca, was a common wine tavern, of the said John
Vaux, with a common sign at the door of the said house fixed, &c.,
by force whereof the defendants, proed' tempore quo, &c., viz., hora
quarta post meridiem into the said house, the door thereof being
open, did enter, and did there buy and drink a quart of wine, and
tliere paid for the same, &c. The plaintiff', by way of replication,
did confess that the said house was a common tavern and that they
entered into it, and bought and drank a quart of wine, and paid for
it : but further said, that one John Ridding, servant of the said John

^ "The law will imply a license from the nature and exigencies of the
case, the relation of the parties and the well established usages of a civil-
ized and christian community," Bigelow, J., Lakin v. Ames, 10 Cush. 193
(Mass. 1852), p. 221.

"Accord: Brown v. Perkins and Wife, 1 Allen 89 (Mass. 1861), but
one who has permission to enter a house does not become a trespasser by
going into a room wliich he is forbidden to enter, Richmond v. Fisk, 160
Alass. 34 (1893), but see Nczvell v. ll'hitchcr, 53 Vt. 589 (1880), where it
was held that a guest in a house could maintain trespass quare clausum
fregit against the owner thereof who entered her sleeping room at night.



Vaux, at the request of the said defendants, did there then deliver
them another quart of wine, and a pennyworth of bread, amounting
to Sd., and then they there did drink the said wine, and eat the
bread,'and upon request did refuse to pay for the same : upon which
the defendants did demur in law : and the only point in this case was,
if the denying to pay for the wine, or nonpayment, which is all one
(for every nonpayment upon request, is a denying in law), makes
the entry into the tavern tortious.

At first, it was resolved when an entry, authority, or license,
is given to any one by the law, and he doth abuse it, he shall be a
trespasser ab initio:'^ but where an entry authority, or license, is
given by the party, and he abuses it, there he must be punished for
his abuse, but shall not be a trespasser ab initio. And the reason
of this difference is, that in case of a general authority or license of
law, the law adjudges by the subsequent act, quo animo, or to what
intent, he entered ; for acta extcriora indicant interiora sccreta. y'ldo.

11 H. 4, 75 b. But when the party gives an authority or license
himself to do anything, he can not, 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 com-
moner 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 if he who enters to see waste breaks
the house, or stays there all night; or if the commoner cuts down

^Markham v. Brown,, 8 N. H. 523 (1837), a case differing from the
principal case only in that the defendant, a guest at the plaintiff's inn, started
an affray therein; Lamb v. Day, 8 Vt. 407 (1836), defendant worked a horse
seized in attachment; Hazard v. Israel, 1 Bin. 240 (Pa. 1808), an officer enter-
ing plaintiff's close in search of the goods of a third person and levying on
the plaintiff's goods; Carrier v. Esbaugh, 70 Pa. 239 (1871), a sheriff lawfully
levying upon goods but subsequently selling them unlawfully; Wyke v. Wil-
son, 173 Pa. 12 (1896) ; Hopkins v. Hopkins, 10 Johns. 369 (N. Y. 1813), de-
fendant, having seized cattle damage feasant, impounded them, without hav-
ing the damages lawfully assessed; Davenport v. Lanison, 21 Pick. 72 (Mass.
1838), abuse of right of way passing by the partition of land to the defendant
as appurtenant to his lot; Ganley v. Looney, 14 Allen 40 (Mass. 1867), com-
pare Kissecker v. Monn, 36 Pa. 313 (1860) ; Malcolm v. Spoor, 12 Mete. 279
(Mass. 1847), constable attaching plaintiff's furniture left it in possession of a
drunken and unfit person; Jiichtcr v. Bochm, 67 Ga. 534 (1881) ; Stoughton v.
Mott, 25 Vt. 668 (1853) : Sterling v. Warden, 52 N. H. 197 (1872), postmaster,
entering the house of his predecessor, who had located the office there, to ob-
tain postoffice property retained by him.

The mere intention to do a subsequent illegal act, if unexecuted, will not
j nake the original entry upon land or seizure of goods a trespass ab initio,
GatesjuLou'^sbury, 20 Johns. 427 (N. Y. 1823).

"This doctrine has never been extended to the criminal law, State v. Moore,

12 N. H. 42 (1841), a man lawfully entering a tavern bar-room does not be-
come guilty of breaking and entering by reason of a subsequent larceny com-
mitted while there.

THE SIX carpenters' CASE. 89

a tree, in these, and the Hke cases, the law adjudges that he entered
for that purpose ; and because the act which demonstrates it is a
trespass, he shall be^ trespa sser ab initio, as it appears in all the
said books. So fPa purveyor takes my cattle by force of a com-
mission, for the King's house, it is lawful: but if he sells them in
the market, now the first taking is wrongful ; and therewith agrees
18 H. 6, 19 b. Et sic de similibns.

2. It was resolved per totam curiam, that not doing, can not
make the party who has authority or license by the law a trespasser
ah initio, because not doing is no trespass f and, therefore, if the
lessor distrains for his rent, and thereupon the lessee tenders him
the rent and arrears, &c., and requires his beasts again, and he will
not deliver them, this not doing can not make him a trespasser
ah initio ; and therewith agrees 33 H. 6, 47 a. So if a man takes
cattle damage-feasant, and the other offers sufficient amends, and
he refuses to re-deliver them, now if he sues a replevin, he shall
recover damages only for the detaining of them, and not for the
taking for that was lawful ; and therewith agrees F. N. B. 69 g.
temp. E. I. Replevin 27. 2y E. 3, 88. 45 E. 3, 9.^ So in the case at

bar, for not paying for the wine, the defendants shall not be

trespassers, for the denying to pay for it is no trespass, and there-
fore they cannot be trespassers ah initioj_ and therewith agrees
directly in the point 12 Edw. 4, 9 b. For there Pigot, Sergeant,
puts this very case, if one comes into a tavern to drink, and when he
has drunk he goes away, and will not pay the taverner, the tav-
erner shall have an action of trespass against him for his entry. To

-Accord: Bell v. North, 4 Litt. 133 (Ky. 1823). a sheriff omitting to sell
property rightfully seized in execution; Abbott v. Kimball, 19 Vt. 551 (1847),
failure of a sheriff to pay over the money realized by the sale of property,
lawfully attached; Hinks v. Hinks, 46 IMaine 423 (1859), defendant, having
removed gates lawfully erected but which impeded his passage along a pub-
lic road and neglecting to replace them, held not to be a trespasser ab initio,
compare Kissccker v. Monn, 36 Pa. 313 (1860) ; Avcrill v. Smith, 17 Wall. 82
(U. S. 1872), and Gardner v. Campbell, 15 Johns. 401 (N. Y. 1818) ; Taylor v.
Jones, 42 N. H. 25 (1860), semble, and case cited therein, a person taking
goods under lawful authority and refusing to restore them after his author-
ity is determined.

The distinction between nonfeasance and misfeasance is of comparatively
modern origin; it is suggested in the case in Y. B., 23 Hen. VI. 26, pi. 12, by
Littleton, then of counsel, but the decision of Prisot, J., was contra. It first
appears in Isaack v. Clark, 2 Bull. 307, and in the principal case.

'Contra: Y B 45 Ed. Ill 9 b, Y B 13 Hen. IV 17 pi. 14, and see Ames,
History of Trover, note 4, infra.

The first cases in which the doctrine of trespass ab initio was applied were
all cases where the distrainor refused to deliver the chattels claiming them as
his own, though at an early date any dealing with the chattel contrary "to the
notion of a distress" — (as by the lord refusing the mesne the right to put cattle
of his own in place of his tenants' cattle distrained Y B 3 Edw. IV 6 pi. 2, or
working a horse taken in distress or as an estray Y B 18 Hen. VI 9 pi. 7: Ox-
ley V. Watts, 1 Term Rep. 12 (1785), or by changing the quality of goods:
Duvcomb V. Reeve and Green., Croke Eliz. 783 (1601), a bailiff" distraining
hides for a tax due, tanned the hides, the reason given that so the identity of
the thing was destroyed so that the owner could not reclaim it), came to be
regarded as making the original seizure wrongful ah initio.


which Brian, Chief Justice, said, the said case which Pigot has put,
is not law, for it is no trespass, but the taverner shall have an
action of debt:* and there before Brian held that if I bring cloth
to a tailor, to have a gown made, if the price be not agreed in
certain before, how much I shall pay for the making, he shall not
have an action of debt against me ; which is meant of a general
action of debt: but the tailor in such a case shall have a special
action of debt: scil. that A. did put cloth to him to make a gown
thereof for the said A., and that A. would pay him as much for
making, and all necessaries thereto, as he should deserve, and that
for making thereof, and all necessaries thereto, he deserves so much,
for which he brings his action of debt : in that case, the putting of his
cloth to the tailor to be made into a gown, is sufficient evidence to
proof the said special contract, for the law implies it: -and if the
tailor overvalues the making, or the necessaries to it, the jury may
mitigate it, and the plaintiff shall recover so much as they shall find,
and shall be barred from the residue. But if the tailor (as they
use) makes a bill, and he himself values the making and the neces-
saries thereof, he shall not have an action of debt for his own value,
and declare of a retainer of him to make a gown, &c., for so much,
unless it is so especially agreed. But in such case he may detain the
garment until he is paid, as the hostler may the horse. Vide Br.

* i\Iany explanations have been given of the distinctions between the abuse
of right to enter by the authority of law and by the license of the owner. In
Allen V. Crofoot, 5 Wend. 507 (N. Y. 1830), Savage, C. J., says: "In case of
a license given by law, the subsequent tortious act shows quo aniino he en-
tered ; and having entered with the intent to abuse the authority given by law,
the entry is unlawful; but where the authority or license is given^by the party,
he cannot punish for that which was done by his own authority." In Esty v.
IVilmot, 15 Gray 168 (Mass. 1860), Hoar, J., says: "The reason for the dis-
tinction most commonly approved by modern text writers and judicial de-
cisions is this : that an officer or other person acting by authority of law shall
not be allowed to avail himself of it as an instrument of oppression. As the
citizen is bound to submit to it without resistance, and has no opportunity to
make provisions or stipulations for his own security, the exercise of the legal
power is made conditional upon pursuing it wholly within legal limits._ The
abuse is held to be a forfeiture of the whole protection which the law gives to
the act which it allowed." It remained for the late Professor James Barr
Ames to show the origin of the distinction in his very learned and valuable
article on the History of Conversion, Harv. L. R. 277 (1898), particularly
pages 287 to 289, 3 Select Essay on Anglo-American Legal History, p. 417, pp.
428 to 430. As he points out, one whose chattels had been taken in distress or
as an estray, could not originally appeal against the taker for felony or, later,
bring trespass, since the chattel had not been taken under a claim of dominion,
but must bring replevin. If, however, upon being demanded the landlord
claimed title, the replevin suit could not go on, "The defendant by thisassump-
tion of dominion over the goods and repudiation of the plaintiff's right was
guilty of larceny and trespass" and the remedy was by appeal or action of tres-
pass.' This also was applied so late as 1454 to the case of one finding chattels
and refusing to give them up on demand, per Prisot, J., Y B 33 Hen. VI 26 pi.
12. which was followed so late as 1595 in East v. Newman. Golds. j52,
though repudiated bv Coke, C. J., in Tsaack v. Clark, 2 Bull. 307. p. 312. "On
the other hand a bailee who in repudiation of his bailor's rights, refused to
give back the chattel on request, was never chargeable as a thief or tres-
passer," Y B 16 Hen. VII 2 pi. 7.


Distress 70, and all this was resolved by the court. Vide the book
in 30 Ass. pi. 38, John Matrever's case, it is held by the court, that
if the lord or his bailiff comes to distrain, and before the distress
th.e tenant tenders the arrears upon the land, there the distress taken
for it is tortious. The same law for damage-feasant, if before the
distress he tenders sufficient amends ; and therewith agrees 7 E. 3,
8 b, in the r\Ir. of St. Mark's case; and so is the opinion of Hull to
be understood in 13 H. 4, 17 b, which opinion is not well abridged
in title Trespass, 180. Note, reader, this difference that tender upon
the land before the distress, makes the distress tortious; tender after
the di?tress, and before the impounding, makes the detainer, and not
the taking wrongful : tender after the impounding, makes neither
the one nor the other wrongful ; for then it comes too late, because
then the cause is put to the trial of the law, to be there determined.
But after the law has determined it, and the avowant has return
irreplevisable, yet if the plaintiff makes him a sufficient tender, he
may have an action of detinue for the detainer after; or he may,

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