REMEDIES BY
PARTIES, &C.

CHAP. VII. his fault, upon the land of another, he may justify the felling of it such last mentioned land. (e) So if a fruit tree grow upon in a hedge, and the fruit fall into the land of another, the owner may go upon the land and fetch it: (f) but in these cases, the occupier should be previously requested to deliver the property to the owner, or to allow him to enter. (g) And in all these cases, the special excuse for the entry on the land of another must be shown, for if the goods happen to be on the land of another, without any default on his part, it does not follow that there is any right to enter to retake them, but the owner must make a demand, and then proceed by action, when sustainable; and therefore a plea to a declaration in trespass for entering land, merely stating that the defendant's goods were there, and that he therefore entered to carry them away, was holden bad, as well for not showing any previous request as also for not stating the special circumstances how the goods came there, and that the defendant had any right of entry. (h)

If goods be illegally taken or distrained under colour of a distress or seizure without warrant, then, at any time before they have been impounded, the owner may make a rescue, but if they be impounded, then it is said that the owner cannot justify the breach of the pound to take them out, because the distress is then in the custody of the law, and the proper course is to replevy or sue for the wrongful seizure: but if the pound be unlocked, it seems the owner may, in such case of illegal seizure, take them. (i) But it should seem, that if the distress were illegal the distrainer could not maintain any action for the pound-breach, and it seems not quite settled, that a poundbreach, without conspiracy, riot, or breach of the peace, is an indictable offence. (k) In case of rescue () or pound-breach of a distress for rent, the party grieved may, in a special action on the case, recover treble damages and treble costs against the offenders, or against the owner of the goods, if they came to his use. (m) But as only the party grieved can sue, it should

(e) Dyke v. Dunstan, 6 Ed. 4, 18.
(f) Vin. Ab. Trespass, L. a. post, 653.
(g) See ante, 569, and form.
(h) Anthony v. Haney, 8 Bing. 186.
(i) Knowles v. Blake, 3 Moore & P. 214;
5 Bing. 499, S. C.; Bul. N. P. 61. N.B.
The facts in the case of Knowles v. Blake
have been misrepresented. I was in the
cause, and the cattle were impounded in a
public pound, which the defendant Blake
broke open, and took the cattle therefrom.
The report of the learned judge who tried
the cause completely misapprehended the

facts.

(k) As to pound-breach being indictable, see Sanderson's case, 4 Leon. 12; Gilb. 75; Com. Dig. Rescous, D. 3; 2 Hawk. c. 10, s. 56; 1 Russ. Crim. L. 363; Cro. Cir. Assist. 9 ed.; Chit. Crim. L. 201; but see Burn's J. Distress, 1001, and form 17.

(1) What a rescue of goods, Knowles v. Blake, 5 Bing. 499.

(m) 2 W. & M. sess. 1, c. 5, s. 4; Firth v. Purvis, 5 T. R. 452; Lawson v. Storey, 1 Lord Raym. 20.

REMEDIES BY
PARTIES, &C.

seem that if the distress was illegal the wrongful distrainor CHAP. VII. could not sue, and that consequently, at least, a rescue may be made when the distress was illegal; and it is usual, in a declaration upon this statute, to show the right to distrain,(n) though it is otherwise in a declaration for a pound-breach of goods taken damage feasant. (0)

With respect to goods wrongfully obtained under colour of a contract, if the pretended purchaser's conduct was so fraudulent as to avoid the contract, the vendor may retake or even rescue them by any stratagem, even when taken and in the hands of the sheriff under an execution at the suit of a creditor against the fraudulent purchaser.(p)

So where goods have been purchased without such fraud, and it be discovered, before they have reached their destination or in the hands of the purchaser, that he is insolvent, they may be stopped in transitu by any means short of force, (q) though a part delivery will in general defeat the right to stop the residue. () When a person can legally stop goods in transitu, he should himself immediately exercise that power to avoid loss, for a Court of Equity it seems will not lend its aid for the purpose. (s) The right to stop in transitu is one of the most important branches of law.

Between tenants in common and joint-tenants of personal as well as real property there are cases of injuries where the only remedy is to retake the property. (1)

On the other hand, the purchaser of a specific chattel, who has paid for the same, or who tenders the price, may take them with force, in case the vendor or a third person should refuse to deliver them; but in general, by a contract to sell or to make and deliver an article, which the vendor might satisfy by delivering any article of the same description and value, no property passes in any specific article until actually set apart or marked, and consequently the purchaser, although he may have

(n) Ridley v. Bell, Lutw. 218; Beltasyse v. Burbridge, 3 Ld. Raym. 177; Mod. Ent. 210; Bul. N.P. 61; Bentley v. Donelly, 8 T. R. 130; Com. Dig. Pleader, C. 19. (0) Cotsworth v. Betison, 1 Ld. Raym. 104; Salk. 247, S. C.

(p) Noble v. Adams, 7 Taunt. 59; Earl of Bristol v. Wilsmore, 1 B. & Cres. 514; Ferguson v. Carrington, 9 B. & Cres. 59; Stephenson v. Hart, 4 Bing. 476, 482.

(q) Lickbarrow v. Mason, 2 T. R. 75; In re the Constantia, 6 Robinson, Rep.

324; Hawes v. Watson, 2 B. & C. 546.

(r) Scott v. Goodwin, 1 New R. 69; Sluby v. Heyward, 2 Hen. Bla. 504; Harvey v. Cook, 6 East, 227; Crayshaw v. Eades, 1 B. & C. 181.

(8) Goodhurst v. Lowe, 2 Jac. & W.

349.

(t) Per Littledale, J. 8 Bar. & Cres. 268; Heath v. Hubbard, 4 East, 117, 121; Co. Lit. 200, a.; Martyn v. Knowles, 8 T. R. 145; 2 Saund. 47, h.; 1 Chit. Pl. 5th ed. 91.

CHAP. VII. paid the full price, cannot take the article though making for him, or any one of like value. (u)

REMEDIES BY
PARTIES, &c.

3. Recaption or re-entry with force on Real Property.

3. It is laid down at the common law, "that if a man be disseised of any lands or tenements, he may, if he cannot prevail by fair means, legally regain the possession thereof by force, unless he were put to the necessity of bringing his action by having neglected to re-enter in due time, i. e. within 20 years, for the violence which happens through the resistance of the wrongful possession being originally owing to the wrong-doer's own fault, gives him no just cause of complaint, inasmuch as he might have prevented it by doing as he ought."(x) And although Lord Kenyon has observed upon that doctrine, and it seems clear, that if on regaining possession to which a party is entitled, he be guilty of a forcible entry or breach of the peace, he may be indicted for the disturbance of the peace; (y) yet it is equally clear that the original wrong-doer, or person who had no right to retain the possession, could not sustain any action for such forcible regaining possession, as far as regards any alleged injury to the house or land, or the expulsion, but at most only for any unnecessary personal injury in turning him out, or avoidable damage to furniture. (2) So that actions of ejectment are very frequently unnecessarily resorted to. (~) The better way however is in these cases to avoid personal violence or the breaking an outer door, and to obtain possession through the intervention of a tax gatherer (who may be authorized by a warrant to break open doors) or by stratagem. In general, when the occupier wrongfully holds over, after his tenancy has expired, the landlord may enter peaceably and turn on his cattle; and if the occupier should wrongfully distrain, then the landlord may support replevy or sustain an action of trover or trespass; (a) and in the absence of the occupier he may break open the outer door of a house and take possession, although goods of the late

(u) Mucklow v. Mangles, 1 Taunt. 320;
White v. Wilks, 5 Taunt. 176; Shepley v.
Davis, Id. 617; Busk v. Davis, 2 Maule
& Sel. 397; Zagury v. Furnell, 2 Campb.
240; Wood v. Russell, 5 Bar. & Ald. 942.
(x) Hawk. c. 64, s. 1; 3 Salk. 169.
(y) Rex v. Wilson and others, 8 T. R.
364.

(2) Taunton v. Costar, 7 T. R. 431;
Rex v. Wilson and others, 8 T. R. 364;
Turner v. Meymott, 1 Bing. 158; 7
Moore, 574, S. C.; Wildbor v. Rainsforth,
8 B. & C. 4; Davis v. Connop, 1 Price,
53; Rogers v. Pitcher, 6 Taunt. 202; 1

Saund. 296, a. 1. If the party thus ousted should bring trespass for the eviction, and even pulling down the house, the plea of liberum tenementum would be an answer, and the plaintiff could not reply excessive violence as regards the land or building, for the defendant had a right even to pull down his own house, and if the plaintiff should reply his former tenancy, the defendant would rejoin showing how it was deter mined, which would if true be a conclusive bar to the action.

(a) Taunton v. Costar, 7 T. R. 431.

tenant remain there. (b) So the landlord is entitled to and may seize the growing crops as his own, unless they are strictly emblements, or were sown under a custom to have an away-goingcrop. (c) And a mortgagee may thus take possession from the mortgagor, or any person who became tenant after the mortgage, and who has not been acknowledged by him. (d) And a person who has recovered in ejectment may, without any writ, thus take possession. (e)

CHAP. VII.

REMEDIES BY

PARTIES, &c.

First, Private

VII. Cases of abatement or removal of injuries by the mere VII. Of the react of the party himself, and without the assistance of the law, ries by abating, moval of injugenerally occur in private or public nuisances as they are usually &c. termed. But the same principles will, in general, apply to nuisance. other cases. Thus it should seem that in the case of a clear 1. Nuisances or injuries to the libel upon the character of a party, published as a gross carica- person. ture, rendering him ridiculous, and subjecting the wrong-doer to an indictment, the party injured might destroy it; (f) it is true that in a late case the owner of such a picture, intrinsically worth several hundred pounds, recovered 57. damages for

(b) Turner v. Meymott, 7 Moore, R. 574; 1 Bing. 138, S. C.; Butcher v. Butcher, 1 Man. & R. 220. Where the tenant of a house, after a regular notice to quit, abandoned the premises, locked up the door, and left only a few articles of furniture therein, and the landlord afterwards, in his absence, and when no person was in the house, broke open the door and took possession, held that he was justified in so doing, as he had a legal right of entry, and it seems that the tenant cannot maintain trespass against him, but that his remedy, if any, is by indictment for forcible entry.

Lord C. J. Dallas." The plaintiff as tenant held over after a regular notice to quit. His legal right of possession was then determined and vested in the landlord, and it must be admitted that the latter had a right to take possession in some way or other. In Taunton v. Costar, 7 T. R. 431, Lord Kenyon said that, "if indeed the landlord had entered with a strong hand to dispossess the tenant by force, he might be indicted for a forcible entry; but that there could be no doubt of his right to enter upon the land at the expiration of the term;" and in Taylor v. Cole, 3 T. R. 295, his lordship further observed that, "a person having a right of

entry might enter peaccably, and being in
possession might retain it." In the former
case, the putting in the cattle was an act
of possession to which the landlord was
deemed to be entitled. I take it to be
clear that on the determination of a te-
nancy a landlord is entitled to take posses-
sion peaceably. The only question then is,
as to the distinction between a peaceable
and forcible entry. The latter is an act
against the public, which subjects the
party to an indictment, but surely it is a
different case where a tenant holds over
against law and justice. Here the plain-
tiff had ceased to be tenant to the defend-
ant, and it would be going a great length
say, that he could bring an action of
trespass against him for entering his own
house. If the plaintiff has any remedy
he may try it by an indictment for a for-
cible entry."

to

(c) Davis v. Connop, 1 Price, R. 55; Doe d. Upton v. Witherwich, 3 Bing. 11. (d) Doe d. Roby v. Maisey, 8 Bar. & C. 767, and 5 Bing. 421, S. C. ante, 258. (e) Taylor v. Horde, 1 Burr. 60, 88; Badger v. Floid, 12 Mod. 398; Withers v. Harris, 2 Lord Raym. 806, 808.

(f) As to the power of seizing blasphemous or seditious libcls, see 60 Geo. 3, and 1 Geo. 4, c. 8.

CHAP. VII. PARTIES, &c.

REMEDIES BY

2 & 3. Abate

ments and removals of pri

vate nuisances and injuries to personal or real

property.

destroying the same, but the defendant had unadvisedly pleaded only the general issue, and it may be collected that if he had pleaded a justification, he would have sustained a defence; (g) and the old law clearly was, that an infamous libel might be destroyed by any one, though it has been stated to be the safer course to take the libel to a magistrate, who might direct what proceedings should be pursued ; (h) and who might issue a warrant for publishing the libel, at least when reflecting upon a judge. (i)

2, 3. The reason why the law allows the abatement of a nuisance, private or public, by any individual annoyed by it, (a private and summary method of doing oneself justice,) is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy and cannot wait for the slow progress of the ordinary forms of justice. (4) But at least in the case of a private nuisance, the building or act, however likely to become a nuisance, cannot be legally abated until it has actually become so in some sen