Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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upon satisfaction made in court, have a writ for the redelivery of
his goods; and therewith agree the said books in 13 H. 4, 17 b;
14 H. 4, 4; Registr' Jitdic. 37; 45 E. 3, 9, and all the books before.
Jldc 14 Ed. 4, 4 b ; 2 H. 6, 12 ; 22 Hen. 6, 57 ; Doctor and Student,
lib. 2, cap. 27 ; Br. Distress, y2, and Pilkington's case, in the fifth
part of my Reports, fol. 76 and so all the books which prima facie
seem to disagree are upon full and pregnant reason well reconciled
and agreed.

Supreme Court of Vermont, 1857. 29 Vt. 501.

Trespass quare clausiim fregit. Plea, the general issue and
license. Trial by jury, June term, 1855, — Poland, J., presiding.

The plaintiff's evidence tended to prove that in the fall of 185 1
the defendant purchased a piece of land near the east village in
St. Johnsbury and erected a house and a coal kiln thereon ; that
said land did not lie upon the highway, and that to reach it the de-
fendant had to cross a field of the plaintift''s, about thirty rods in
width ; that the defendant, soon after he erected his house and kiln,
went on to the plaintiff's land, and made a sufficient road to enable
him to pass to and from the highway with a team, and ever since
had continued to travel across the plaintiff's fields and over said
road, which was not fenced upon either side, and which entered the
highway from the plaintiff's field through a barway.

The defendant then introduced evidence tending to prove that
at the time he built his house the plaintiff gave him a license to pass
and repass over his said field and through said bars until he could
get a public road laid out to his place from the highway.

The plaintiff' then introduced evidence tending to prove that the
defendant did not keep up said bars ; that he would leave said bars



open during the day, and also at night, and that by reason of such
acts horses and cattle that were in the highway passed into the
plaintiff's field through the said barway and injured and destroyed
the plaintiff's crops in said field.

The defendant's counsel claimed that if the jury found that the
defendant had license to pass over the plaintift''s field through
said barway, that if he did leave the bars down, and that thereby
cattle and horses came into the plaintiff's field and damaged his
crops, that the plaintiff' could not recover therefor in this action.
But the court ruled otherwise, and instructed the jury that the
plaintiff* would be entitled to recover in this action for the damages
so occasioned. Verdict for the plaintiff. Exceptions by the defend-

Redfield, Ch. J. The evidence in this case showed that the
plaintiff gave the defendant license to pass and repass on his field
and through the bars until he could obtain a public highway.

This being an action of trespass, the answer to this license,
which, unanswered, is a bar to the action, was, that the defendant
did not keep up the bars, that he left them open during the day,
and also the night and that by reason thereof damage was done by
cattle running in the highway.

The only question to be determined is whether the omission to
keep up the bars will deprive the party of the benefit of the license.
There is nothing in the case to show that the license was given upon
any express condition to be void if the bars were not properly kept
up. The question must be determined upon general principles.

The law upon this subject is fully illustrated in all its bearings
in the Six Carpenters' Case, 8 Coke 146a; S. C. i Smith's Lead.
Cases ^2, and English and American notes.

The abuse of an authority in law will render the party a tres-
passer ab initio. But this abuse must be something beyond mere
non feasance. It must be a positive and active wrong, and of such a
character as to fairly justify the implication that the original entry
was for the purpose of committing the wrong, and not bona fide
made under the authority which the law gave, and for the purpose
for which the law gave it ; Stoiighton v. Mott, 25 Vt. 668.^

If this had been an authority in law merely, as the right of
one to enter to distrain or attach property, it would be going further
than any of the cases have yet gone, and quite beyond the true prin-
ciple of the later decisions upon this subject, to hold that such an
omission as the one complained of in this case will render the officer
a trespasser ab initio. It would be strange to conclude that because

^Accord: Dwiitnells v. Boynion, 3 Allen 310 (Mass. 1862), officer, serving
a search warrant commanding him to search a dwelling, took up and at once
laid down some articles not covered by the warrant and also searched without
authority the shop before searching the house: Page v. DePuy, 40 III. 506
(1866), a man in possession under legal process lay down for a short time on
a bed; Adams v. Rivers. 11 Barb. 390 (N. Y. 1851), abusive language, in other
respects a very doubtful case.


an officer in making an attachment of personal property upon prem-
ises left the bars open, tiiat he entered for that purpose, and not
with the bona fide purpose of executing the process.

But this is not a license in law. It is a license in fact, the per-
mission of the party. And in such cases the law is settled beyond
all question, that no abuse of the license will render the party a
trespasser ab initio. He may be liable for the wrong, but if he had
permission to enter, and kept within the range of his license,- no
abuse of the license will revoke it, or deprive the party of its pro-

The party, by the abuse of the license in fact, does not become
a trespasser, but may be liable for the wrong in an action upon the


Judgment reversed and case remanded.

= In Taylor v. Jones, 42 N. H. 25 (1860), Fowler, J., says, page 42: "Such
an error as a person of ordinary care and common intelligence might commit,
will not amount to an abuse; but there must be such a complete departure
from the line of duty or such an improper and illegal exercise of the author-
ity to the prejudice of another. Such an action and wilful wrong perpetrated
— as will warrant the conclusion that its perpetrator intended from the first
to do wrong and to use his legal authority as a cover for his illegal conduct."
. Here the defendant under an attachment against one R. seized the plaintiff's
goods which were intermingled with those of R., and after identification re-
fused to give them up, but sold them. It was held that if the jury found that
he was acting in perfect good faith, as to what he believed to be his legal
rights and under such mistake as that above mentioned, they might properly
find him not guiltv of trespass. But as to the effect of such a sale, see Car-
rier V. Eshaugh, 70 Pa. St. 239 (1871), and Hazard v. Israel, 1 Bin. 240 (Pa.

See Norton v. Craig. 68 INIaine 275 (1878), and Stiff em v. Townsend 9
Johns. 35 (N. Y. 1812).

'Snedecor v. Pope, 143 Ala. 275, 39 So. 318 (1905) ; BaHard v. Noaks, 2
Ark. 45 (1839) ; Pike v. Heinzmann, 89 111. App. 642 (1899) ; Page v. DcPuy,
40 111. 506 (1866), scmble; Spades v. Murray, 2 Ind. App. 401 (1891). landlord
entering during term to make repair; Walsh v. Taylor, 39 Md. 592 (1874);
Richmond v. Fiskc, 160 Alass. 34 (1893), one permitted to enter the plaintiff's
outer door went aeainst his commands into his bedroom: Beers v. McGi)inis,
191 Mass. 279 (1906) : Bradley v. Davis, 14 I^Iaine 44 (1836) : Edchnan v.
Yeakel, 27 Pa. 26 (1856), here the license was from the plaintiff's predecessor
in title: Jewell v. Mahood, 44 N. H. 474 (1863) ; Willoughby v. Rv. Co.. 32
S. Car. 410 (1889) ; Allen v. Crofoot. 5 Wend. 506 (1830) : Dumont v. Smith,
4 Denio 319 (N. Y. 1847) ; Stone v. Knapp. 29 Vt. 501 (1857), facts very simi-
lar to Hinks v. Hinks, 46 Maine 423 (1859). See also, Gregoir v. Leonard,
71 Vt. 410 (1899). and compare Kissecker v. Monn. 36 Pa. 313 (1860).

* Accord: Richmond v. Fisk, 160 Mass. 34. and Beers v. McGinnis. \^\
Mass. 279 (1906) \ but see Snedecor v. Pope. 143 Ala. 275. 39 So. 318 (1905),
supra note 3. holding that one abusing such authority is a trespasser from the
time he goes beyond the purpose for which he was permitted to enter, and
compare Norton v. Craig, 68 Maine 275 (1878), and Suffern v. Toii;nsend, 9
Johns. (N. Y.) 35.

Part 2.

Disseisin and Conversion.



Bracton, fol. i6i b, Twiss's Translation, 3 Tw. Br. 17. Like-
wise a disseisin takes place, not only if any one ejects the true
owner when present, or his agent, or his family, or does not admit
him, or repels him on his return from market or from a journey,
but he also effects a disseisin, if he shall not permit the owner or
his agent or his family being in possession to make use of it, or
at least hinders him from making a convenient use of it. And in
which case, although he does not altogether expel (the owner),
nevertheless he inflicts upon him a disseisin, since he takes away
from him altogether the convenience of using it, or hinders him
from using it conveniently, quietly, and in peace, by disquieting and
disturbing his possession. Likewise a disseisin takes place not only
according to what has been said above, but also if any person of
greater power wishes to make use of the tenement of another
against the will of the tenant, b}^ ploughing, or by digging, by
reaping and carrying away, contending that the tenement, which
is another's, is his own ; but if he has made no claim to the tene-
ment, it will be another thing, because then there will be a trespass,
and not a disseisin from a freehold. -

Littleton, § 279. And note that disseisin is properly, where a
man entereth into any lands or tenements where his entry is not
congeable, and ousteth him which hath the freehold, &c.

Coke, 2d Inst. 414. By the common law a man that is in
seisin of his land may have an assise, for that he is disseised of the
quiet enjoyment of his land; as when the lord, or any other that
hath a rent, and oftentimes distraineth for the rent, where none is
behind, the tenant shall have an assise of novel disseisin of the

^ This section is reprinted from the late Professor James Barr Ames' Col-
lection of Cases on Torts, by the courteous permission of his son, Richard
Ames, Esq.

" "Et si eo ammo forte ingredietur fundum alienum, non quod sibi usurpet
tenementiim vel jura, non facit dissevsinam sed transgressionem" (Bracton,
fol. 216b). See also, 1 Nich. Britton, 272, 343.— Ames.



land, for that, by reason of the frcqucncic of distresses, he is dis-
seised of the quiet enjoying of his land, and cannot make his ad-
vantage thereof, and frequent ia mutat transgressionem in dis-



King's Court, 1230. 2 Bracton pi. 378.

Rogerus de Sancto Dionisio et Sarra uxor eius athachiati fuer-
unt ad respondendum W'illelmo de Estrc quare contra pacem et
dignitatem domini Regis arrauerunt et sulcauerunt et foderunt pas-
luram suam de Eckeles unde idem Willelmus queritur quod propter
hoc deterioratus est et dampnum habct ad ualcnciam, etc.

Et Rogerus et Sarra ueniunt et defendunt quod nichil arrauer-
unt nee sulcauerunt nee foderunt de pastura uel terra ipsius Willel-
mi, et dicunt quod pastura ilia ipsorum est et non ipsius Willelmi.
Et quia ipsi Rogerus et Sarra aduocant terram illam ut suam et
pasturam, et idem Willemus ut suam. Consideratum est quod
ipsi Rogerus et Sarra inde sine die et Willelmus perquirat sibi per
breue de noua disseisina si uoluerit.^


Common Picas, 1340. I' B 14 Edvj. Ill, R. S. 230, pi. 20.

Trespass against bailiffs of Ancient Demesne, in which after
the record had been, for a cause, removed into the Bench, the bailiffs
continued to hold the plea, notwithstanding the removal, until the
tenant who now brings this writ lost the land. The bailiff's abode
judgment whether the present plaintiff' ought to be answered as to
this plaint, inasmuch as he showed that it was a disseisin eff'ected on
him, wherefore he might recover by novel disseisin both the freehold
and damages, as appears above in Easter Term in the 12th year.
And afterwards they departed in contempt of court, whereupon the
plaintiff prayed judgment for himself. And the matter was pend-
ing imtil now. Sharesiiull rehearsed as above, and said: "Even
had the bailiff? abode judgment, there is no ground upon which
to give judgment for them ; but since they have departed in contempt

^Professor Maitland adds in a note to this case: ''The time is not yet
when title shall be tried in an action of trespass ri ct arviis: but this is a note-
worthy attempt."

There are several reported cases of the thirteenth century in which, as in
the principal case, the plaintiff failed in trespass, because the defendant's entry
was under a claim of right to the freehold; i. e., was a disseisin. (1253) Plac.
.^b. 132. col. 2, rot. 13, Essex: (1253) Plac. Ab. 142. col. 1, rot. 9. Lane: (1272)
Plac. Ab. 262, col. 1, rot. 18, Cant.; (1272) Plac. Ab. 262, col. 1, rot. 19, Essex.
— .'\mes.


of the court, it seems to us that judgment shall be given against
them. Therefore the court adjudges that they be taken for the
contempt, and that the plaintiff do recover his damages according to
his count."^


Common Pleas, 1352. L. A., 26 Ediv.^ Ill, pi. 17.

It was found by the verdict of the Assize of Novel Disseisin
that the plaintiff" had cut trees on his own soil, and the tenant, who
had common there, said that the soil was his soil, and ordered the
plaintiff" not to cut any trees, whereupon the plaintiff departed, and
now brings the assise.

Shareshull, C. J., said that he who had no right cannot be
seised of a freehold by words. But if one having a right of entry
was disturbed, as he was coming to the land, from entering, it is a
disseisin. Wherefore the plaintiff" took nothing.


Common Pleas, 1618. 9 Viner's Abridgment, 85, pi. 5.

If a man hath a house and locks it, and departs, and another
comes to his house, and takes the key of the door into his hand,
and says that he claims the house to himself in fee without any
entry into the house, this is a disseisin of the house. Admitted
clearly upon evidence at the bar in an assize taken by default.



"An action of trover (is) in form a fiction, and in substance
founded on property for the equitable purpose of recovering the
value of the plaintiff's specific property, used and enjoyed by the
defendant," Lord Mansfield in Hamhly v. Trott, Cowper 371 (1776),

p. 374-

"In form it is a fiction ; m substance a remedy to recover the

value of personal property wrongfully converted by another to his

'See also, Y. B. 11 & 12 Ed. III. (Rolls Series), 503, 505.

After the decision in the principal case the distinction between a trespass
and a disseisin lost its value for the purpose of the action trespass quare
clausum fregit. The distinction, however, is one founded in the nature of
things, and still plays a prominent part in our law. Thus, a mere trespasser
never gains a title by lapse of time. The wrongdoer must be also an adverse
possessor, in other words a disseisor. This substitution of the term "adverse
possession" for disseisin is one of the curiosities of our legal terminology. —


own use. The form supposes the defendant may have come law-
fully by the possession of the goods. This action lies and has been
brought in many cases where, in truth, the defendant has got pos-
session lawfully. When the defendant takes them wrongfully, and
by trespass, the plaintiff, if he sees fit to bring this action, waives
the trespass, and admits the possession to have been lawfully
gotten," Lord Mansfield in Cooper v. Chitty, i Burrow 20 (1756),
P- 31."

Nature of Plaintiff's Right.



Court of King's Bench 1 Strange 505.

The plaintifi' being a chimney sweeper's boy found a jewel anc
carried it to the defendant's shop (who was a goldsmith) to know
what it was, and delivered it into the hands of the apprentice,
who under pretence of weighing it, took out the stones, and calling
to the master to let him know it came to three half-pence, the master
offered the boy the money, who refused to take it, and insisted to
have the thing again ; whereupon the apprentice delivered him back
the socket without the stones. And now in trover against the master
these points were ruled :

1. That the finder of a jewel, though he does not by such find-
ing acquire an absolute property or ownership, yet he has such a
property as will enable him to keep it against all but the rightful
owner, and consequently may maintain trover.

2. That the action will lay against the master, who gives a
credit to his apprentice, and is answerable for his neglect.

3. As to the value of the jewel several of the trade were ex-
amined to prove what a jewel of the finest water that would fit the
socket would be worth; and the Chief Justice directed the jury, that
unless the defendant did produce the jewel, and shew it not to

J' The declaration in trover alleges the loss of the goods by the plaintiff,
their finding by the defendant (whence the name trover) and his conversion
of them to his own use. The action was designed to give redress; for the
abuse of a possession lawfully obtained, originally by mere finding of lost
chattels. The allegation of loss and of finding were held not to be trans-_
versable and the action was extended to cover the abuse of possession I-h - '
fully obtained in any way, as by bailment, etc., and was subsequently extended
to cover all cases where the plaintiff's possessory richt was denied or sub-
stantially impeded, becoming, with certain limitations shown in the cases
given in this chapter, concurrent with trespass de hoiiis asf^ortatis and det'»"e.
See the very learned article by the late James Barr Ames, Esq., on the His-
tory of Trover. 9 Harv. L. k., 277-374; Select Essays in Anglo-American
Legal History. Vol. HI, p. 417.

7 — Bohlen's Cases, Vol. I.


be of the finest water, they should presume the strongest against
him, and make the vahie of the best jewels the measure of their
damages : which they accordingly did.

Accord: Tatum v. Sharpless, 6 Phila. 18 (1865), plaintiff, a street car
conductor, found a pockctbook in the car and turned it over to the defendant,
an officer of the company, to return it to the owner, no one claiming it, it was
held that trover lay; Hamaker v. Blaiuhard, 90 Pa. Z77 (1879), servant turned
over to his master property found in the latter's house; Danielson v. Roberts,
44 Ore 108 (1904), master took from servant property similarly found; Guns-
burger V. Rosenthal, 226 Pa. 300 (1910), 75 Atl. 418, semble.

An agent or servant entrusted with property by his principal or master
mav maintain trover therefor, Gun::burger v. Rosenthal, 226 Pa. 300 (1910),
75 Atl. 418. The terms under which the plaintiff got possession from the true
owner need not be shown, Burton v. Hughes, 2 Bing. 173 (1824), nor is it ma-
terial that it was got under a contract void as between the parties thereto,
Sutton V. Buck, 2 Taunt. 302 (1810).


Court of King's Bench, 1796. 7 Term 9.

In trover for certain goods, being household furniture, a ver-
dict was found for the plaintiff, subject to the opinion of this Court
on the following case. On the ist of October, 1795, and from thence
until the seizing of the goods by the defendant, as after mentioned,
Mr. Biscoe was in possession of a mansion-house at Shoreham and
of the goods in question, being the furniture of the said house, as
tenant of the house and furniture to the plaintiff, under an agree-
ment made between the plaintiff and Mr. Biscoe, for a term which
at the trial of this action was not expired. The goods in question
were on the 24th of October taken in execution by the defendaiit,
then sheriff of the county of Kent, by virtue of a writ of testatum
fieri facias issued on a judgment at the suit of F. Broomhead and
others, executors of F. Broomhead deceased, against one Borrett, to
whom the goods in question had belonged, but which goods, previous
to the agreement between the plaintiff and Mr. Biscoe, had been sold
by Borrett to the plaintiff. The defendant after the seizure sold the
goods. The question is, whether the plaintiff is entitled to recover
in an action of trover.

Lord Kenyon, Ch. J. The true question is, whether when a
person has leased goods in a house to another for a certam_time,
whereby he parts withjhe right of possession during the .term to the
tenarrtrmrd has only a reversionarjjnterestjjhe can notwithstanding
recov^'lTie "value of the~whole property pending the existence of
the-term ijT_an action of trover. The very statement of the proposi-
tion aliFords an answer to it. Tf, instead of household goods, the
8-oods here taken had been machines used in manufacture which had
been leased to a tenant, no doubt could have been made but that
the sheriff might have seized them under an execution against the
tenant, and the creditor would have been entitled to the beneficial


use of the property dnrinj^ the term : the difference of the goods then
cannot vary the law. The cases which have been put at the bar
do not apply : the one on which the greatest stress was laid was that
of a tenant for years of land whereon timber is cut down, in which
case it was truly said, that the owner of the inheritance might main-
tain trover for such timber, notwithstanding the lease. But it must
be remembered that the only right of the tenant is to the shade of the
tree when growing, and by the very act of felling it his right is abso-
lutely determined ; and even then the property does not vest in his
immediate landlord; for if he has only an estate for life, it will go
over to the owner of the inheritance. Here however the tenant's
right of possession during the term cannot be devested by any
wrongful act, nor can it thereby be revested in the landlord. I for-
bear to deliver any opinion as to what remedy the landlord has in
this case, not being at present called upon so to do ; butiLis^cIearlhat
he cannot maintain trover.

' SsHHURST, J. I have always understood the rule of law to be, /,

that in order to maintain trover the pb nitiff must have n ^''r^''^ ^^ lUrJO,
pro perty in the thing, and a right of possession, and that unless ^^0X2^
'TpnTthese rights concur the acti on wi ll, not lie. Now here it is ad- (^^ *Ji^ -V/
mitted that~the^teiianrKa3~the right of possession during the con- '
tinuance of his term, and consequently one of the requisites is want-
ing to the landlord's right of action. It is true that in the present
case it is not very probable that the furniture can be of any use to
any other than the actual tenant of the premises ; but supposing the
things leased had been manufacturing engines, there is no reason
why a creditor seizing them under an execution should not avail him-
self of the beneficial use of them during the term.

Grose, J. The only question is, whether trover will lie where
the plaintiff had neither the actual possession of the goods taken at
the time nor the right of possession. The common form of plead-
ing in such an action is decisive against him ; for he declares that
being possessed, &c., he lost the goods; he is therefore bound to
show either an actual or virtual possession. If he had a right to the
possession, it is implied by law. Where goods are delivered to a
carrier, the owner has still a right of possession as against a tort-
feasor, and the carrier is no more than his servant. But here it is
clear that the plaintiff had no right of possession ; and he would
be a trespasser if he took the goods from the tenant : then by what
authority can he recover them from any other person during the
term? It is laid down in some of the books (a) that trover lies
where detinue will lie, the former having in modern times been sub-
stituted for the old action of detinue. I will not say that it is uni-
versally true that the one action may be substituted for the other,
because the authorities referred to in support of that proposition
do not apply to that extent: but certainly it may be said to be a
good general criterion. But it is clear in this case that detinue would
not lie, because the plaintiff had no right to the possession of the
specific goods at the time. And if not, it is a strong argument to


shew that trover, which was substituted in lieu of it, cannot be main-