By the Court,
Savage, Ch. J.The plaintiff in error seeks to reverse the judgment in the common pleas on two grounds.
1. It is said the common pleas bad no jurisdiction because the penalty of the appeal bond was not in double the amount of the judgment. The judgment was entered according to the justice’s return for $50 damages and the costs of suit. As no sum is mentioned for costs, and the only sum mentioned is the $50, this court cannot say that the judgment was en*509tered for a greater sum. The penalty, therefore, is correct. The bond was incorrect in not containing the latter condition mentioned in the statute; but the plaintiff below had no reason to complain on that account, as the bond is more favorable to him in its present form than if that condition was contained in it. There is now an absolute undertaking to pay, whereas by the condition omitted, the surety would be obligated to pay the debt before the justice, with interest and costs, or surrender the body of the defendant.
2. It is also urged by the plaintiff in error, that the court below erred in charging the jury that the action was sustainable, if they should find that the defendant entered the plaintiff’s house fraudulently, to obtain improperly copies of papers in the absence of the plaintiff. It was decided in The Six Carpenters3 Case, 4 Co. 290, that where an authority to enter upon the premises of another is given by law, and it is subsequently abused, the party becomes a trespasser ab initia; but where such authority or license is given by the parly, and it is subsequently abused, the party guilty of the abuse may be punished, but he is not a trespasser; and the reason of the difference is said to be, that in case of a license by law, the subsequent tortious act shews quo anima he entered ; and having entered with an 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. Whether this is not a distinction without a difference of principle, it is not necessary to inquire. A better reason is given for it in Bacon’s Abr. tit. Trespass, B. Where the law has given an authority, it is reasonable that it should make void every thing done by the abuse of that authority, and leave the abuser as if he had done every thing without authority. But where a man, who was under no necessity to give an authority, does so, and the person receiving the authority abuses it, there is no reason why the law should interpose to make void every thing done by such abuse, because it was the man’s folly to trust another with an authority who was not fit to be trusted therewith. It is contended that the license being obtained by fraud was void. The defendant knocked at the door and *510was told to walk in ; he was found copying certain papers; ]-,ut pow jle obtained them, on what representation, or from whom, the evidence does not disclose. One witness does indeed testify that he said he would not have got the copies, if he , , J . , . . , had not practised a deception on the wile and brother-in-law of the plaintiff. If this declaration should be considered evidence of his having made improper representations to obtain the papers, then the question arises, does he thereby become a trespasssr ab initia ?
It has been decided that to enter a dwelling house without license, is in law a trespass, 12 Johns. R. 408, and that possesssion of property obtained fraudulently confers no title. Under such circumstances no change of property takes place, 15 Johns. R. 186; and it is argued that as fraud vitiates every thing which it enters, a license to enter the house fraudulently obtained is void, and as no license. The principle of relation has never been applied to such a case, nor is it necessary for the purposes of justice to extend it farther than to cases where the person enters under a license given him by law. In such cases, as the parly injured had not the power to prevent the injury, it seems reasonable that he should be restored to all his remedies.
The judgment must be reversed without costs, and a venire de nova awarded by Cortland common pleas.