Esty v. Wilmot

Hoar, J.

The distinction made in the Six Carpenters’ case, 8 Co. 146, that “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 initia; 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 initia,” has been frequently recognized and applied in this Commonwealth, and is a familiar one. It is most commonly applied in cases of trespass to real estate where the original entry could not be resisted, being independent of the will or consent of the owner. It is also applicable in the case of officers serving legal process. The reason for the distinction, most commonly approved by modern text writers and judicial decisions, 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. Bac. Ab. Trespass, B. State v. Moore, 12 N. H. 42. 1 Smith’s Lead. Cas. (5th Am. ed.) 216-221. Allen v. Crofoot, 5 Wend 506.

But the abuse of the authority of law, which makes a man a trespasser ab initia, is the abuse of some special and particular authority given by law, and has no reference to the general rules which make all acts lawful which the law does not forbid. And we are of opinion that the instruction given to the jury in the case now before us was erroneous, because the defendant was not in the exercise of any authority conferred by law, within the meaning of the rule in the Six Carpenters’ case, when he committed the assault complained of. He had the legal right to use the kind and degree of force necessary and appropriate to protect his person, and his employers’ property, from the disorder and misconduct of the plaintiff. But the parties stood on equal terms in this respect. Their relation to each other was created by contract, and the right of the defendant to remove the plaintiff from the room for misbehavior was an incident to that relation.

By the rules of pleading, if a defendant pleads a justification to an assault, the plaintiff must plead specially in reply any fact upon which he relies, to show that the defendant became a trespasser ab initia. But where the plaintiff relies upon proving an excess of force, no special replication is necessary, but he may reply that the assault was committed de injuria, absque tali causa; because the defendant must prove a justification commensurate with the force used. Hannen v. Edes, 15 Mass. 347. Dole v. Erskine, 35 N. H. 503. Bennett v. Appleton, 25 Wend. 371.

The instruction given to the jury obviously extended to the whole grounds of defence, and was not of such a casual or incidental nature that the defendant was in fault for not callirg attention to its inaccuracy before the jury retired.

Exceptions sustained.