a distinct wrong. The opinion of Parke and Alderson was in accordance with this (z), and the decision from which they dissented is reconcileable with the old books only by the ingenious distinction - certainly not made by the majority (a) — 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. This refine ment does not appear to have occurred to any of the old pleaders.

Fresh re-entry 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

(z) 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.

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

Fresh re-entry on trespasser. Mere occasional entries and trespasses do not confer any of the rights of a possessor in law upon the trespasser. Hughes v. Stevens, 36 Pa. St. 320; Ozark Land Co. v. Leonard, 20 Fed. Rep. 881; Ware v. Johnson, 55 Mo. 550; Illinois Coal Co. v. Cobb, 82 Ill. 183; Pettit v. Cowherd, 83 Va. 20; 1 S. E. Rep. 393; Storrs v. Feick, 24 W. Va. 606; Gulledge v. White, 73 Tex. 498; 11 S. W. Rep. 527.

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, gave 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" (b). 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" (c). 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 (d). 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

(b) 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.

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

(d) 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.

Recaption of goods. A peaceable entry by an owner to retake goods from another's land or possession is not a trespass. Allen v. Feland, 10 B. Mon. 306; Wheelden v. Lowell, 50 Me. 499; Chambers v. Bedell, 2 Watts & S. 225; Richardson v. Anthony, 12 Vt. 273; Harding v. Sandy, 43 Ill. App. 442. Contra, Jackson v. Walsh, 14 Johns. 406; Morgan v. Varick, 8 Wand. 587; Newkirk v. Sabler, 9 Barb. 652; Heermance v. Vernoy, 6 Johns. 5; Roach v. Damon, 2 Humph. 425.

But in such case the use of force is not permissible. Salisbury v. Green, 17 R. I. 758; 24 At. Rep. 787. Compare, Mills v. Wooten, 59 Ill. 234.

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" (e), 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 (f). 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 (g). He may also enter on the first taker's land for the purpose of recapture if the taker has put the goods there (h); for they came there by the occupier's own wrong (i); but he cannot enter on a third person's land unless, it is said, the original taking was felonious (k), or perhaps, as it has been suggested, after the goods have been claimed and the occupier of the land has refused to deliver them (7). 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.

(e) 1 Wms. Saund. 20.

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

(g) 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, 1. 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.

(h) Patrick v. Colerick (1838), 3 M. & W. 483, explaining Blackst. Comm. iii. 4. (i) Per Littleton J., 9 Edw. IV. 35, pl.

10.

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

(1) Tindal C. J. in Anthony v. Haney: but this seems doubtful.

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 (m). 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 (n). More special rules have been laid down as to the extent to which private property which is not itself the immediate object of the

(m) Semayne's Ca. (1604-5) 5 Co. Rep. 91 b, and in 1 8m. L. C.

(n) 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. 130, above.

Process of law: breaking doors. It is not legal to break into a dwelling house to serve civil process on the owner, or occupant, or his goods. Oystead v. Shed, 13 Mass. 520; Ilsley v. Nichols, 12 Pick. 270; Calvert v. Stone, 10 B. Mon. 152; People v. Hubbard, 24 Wend. 369; State v. Claudius, 1 Mo. App. 551. Raising a latch is sufficient to make the entry illegal. Curtis v. Hubbard, 1 Hill, 336.

But where an officer is allowed to set foot in the house without force he may keep his possession. State v. Beckner (Ind.), 16 N. E. Rep. 553. If the door is open the officer may enter and break open inner doors, if property is concealed, and use such force as is necessary to serve the process. Prettyman v. Dean, 2 Harr. (Del.) 494; State v. Thackland, 1 Bay, 358; Hager v. Danforth, 20 Barb. 116.

A store occupied as a dwelling may not be entered by the dwelling door, but if there is a door common to both there may be a lawful entry. Stearns v. Vincent, 50 Mich. 209; 45 Am. Rep. 37.

An officer may upon demand and refusal, break open a door to levy on goods of a person other than the occupant of the house. De Graffenried v. Mitchell, 3 McCord, 506; Burton v. Wilkinson, 18 Vt. 186; Platt v. Brown, 16 Pick. 553.

Contrary to the rule in England, it is held in the United States, that when process is executed illegally by breaking into a dwelling, the execution is void. Ilsley v. Nichols, 12 Pick. 270.

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 (o), 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 (p). 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 atempt 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" (g). 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 (r).

(0) Burdett v. Abbott (1811), 14 East, 1, a classical case.

(p) And it is contempt in the sheriff himself not to execute such procees by breaking in if necessary: Harvey v. Harvey (1884), 26 Ch. D. 644. Otherwise

where attachment is, or was, merely a formal incident in ordinary civil process. (g) See West v. Nibbs (1847), 4 C. B. 172, 17 L. J. C. P. 150.

(r) As to distress in general, Blackst. Comm. book iil. c. 1.

Distress. Illustrating the common law right of a landlord to distrain the goods and chattels of his tenant for the payment of rent, see, Bailey v. Wright, 3 McCord, 484; Russel v. Doty, 4 Cow. 576; Slocum v. Clark, 2 Hill, 475; Dumes v. McLoskey, 5 Ala. 259; Richardson v. Vice, 4 Blackf. 13; Allen v. Agnew, 24 N. J. L. 443; Hartshorne v. Kiernan, 2 Halst. 29; Harrison v. Guill, 46 Ga. 427; Bukup v. Valentine, 19 Wend. 554; First Nat. Bank v. Adam, 138 Ill. 483; 28 N. E. Rep. 955.

Distress has been either abolished or restricted in nearly all of the states of the United States.