— Dissenting.
I cannot but think that the charge of the court below, to the jury, was incorrect, as applied to the facts of this case. *279There was no evidence in the case, showing by what means the heifers went out of the possession of the defendant, or how they came upon the premises of the plaintiff; but it was, on trial, admitted by the defendant, that they had been in the possession of the plaintiff about one year, when he entered the plaintiff’s close and drove them away. Can the defendant, upon such a state of facts, justify the breaking of the plaintiff’s close to regain the possession of the cattle ? I think not. It is undoubtedly true, that if A., by wrong, takes the goods of B. and put's them upon his own land, A'. may justify an entry upon the close of Bi to retake them. So if, in such case, A. were to put them on the lands of a third person, by his consent, the owner might enter to reclaim them. The landholder would become a particeps in the wrong. But that is not this case. The defendant undertakes to justify what would otherwise be a trespass. And if he pleads specially, his plea must set forth all the facts necessary to constitute a justification. And if he gives notice, under the general issue, his notice must contain all the material facts necessary to constitute a legal justification, and those facts must be proved on trial. Neither the facts contained in the notice, nor those proved on trial, to my mind, constitute any justification. It is well settled, if goods have been felo~ niously stolen from the owner and carried away, the owner may pursue and retake them on whosesoever land they may be found, whether placed there by the consent of the landholder or not.
But no such fact is avered in the notice, nor pretended to have existed, on trial. In the case of Higgins v. Andrews, 20 Viner. 506, it was held, upon demurrer, that if certain persons unknown, in a felonious manner, eradicate and pull up the fruit trees of A., in his garden, and carry them upon the premises of B., the owner cannot justify an entry to reclaim them. This was, of course, but a trespass upon the owner of the fruit, trees. Thé doctrine is well settled, if A. takes my horse, but not feloniously, and put him on the land of B., it is not lawful for me to enter upon the land and take him. 20 Viner. 506.
In Taylor v. Fisher, Cro. Eliz. 246, the' defendant had bought the goods of one J. B., who was the owner of them, *280the goods then being in the house of the plaintiff, and thereupon the defendant went to the house of the plain- and demanded the goods, and the plaintiff being absent from home, by the license of his wife, the defendant entere(j the house and took and carried away the goods, and yet he was held a trespasser for such entry. The court say, the goods being in the plaintiff’s house, and it not appearing how they came there, whether by trespass or otherwise, he cannot, of his own head, enter, and the license of the wife to enter her husband’s house was void. This, then, is a direct adjudication, that, in such case, the law gives no right of entry to the owner of the goods. If it did, though the license, in fact, failed for the want of authority in the wife, yet, in that court, this would have been surplusage in the plea, and the plea would have been held sufficient. Gowdy, J. it is true, says, it may be intended the goods were there by the plaintiff’s license and then the defendant might well enter and take them, but, to this, the other judges did not concede, and it was adjudged for the plaintiff.
For aught that appears, these heifers were upon the premises of the plaintiff, through the default of the defendant. The parties may have owned adjoining lands and the defendant may have suffered that portion of the fence, which he was bound to have repaired, to have gone to decay, over which they may have escaped upon the lands of the plaintiff, and, in such case, he could, not justify an entry to drive them off. So if they escaped and came into the lands of the plaintiff, through the insufficiency of the fence which he was bound to repair, though the defendant might enter and retake them immediately after the escape, yet, if he suffered them to remain, after notice, they were then there through his default and he could not enter to retake them. They might be distrained damage feasant. This is settled law. Ham. N. P. 169. 2 Saund. R. 285, n. 4. 4 Comyn’s D. Pl. 3. (m. 29.) Edwards v. Hulinder, 2 Leon. 93.
In this case, the. defendant admitted the heifers had been upon the premises of the plaintiff one year before he entered to retake them, and if with his knowledge, (and this was a fact which should have been submitted to the jury to have found,) upon well established principles, they were there, at the time of the entry, through the default of the defendant, *281though they might have come into the premises, originally, through the plaintiff’s default. Indeed, I think, in cases where property is stolen, the owner cannot justify the entry upon lands, wherever it may be found, to retake it, unless he uses reasonable diligence in pursuing and retaking it. In the present case, there is no evidence that the heifers went into the possession of the plaintiff through any default of his, and this we cannot presume in order to make out a justification for the defendant. It must be averred and proved by him, and, upon the authority of Taylor v. Fisher, it cannot be intended that they were put there by the license of the plaintiff. The case of Hermance v. Verney, 6 Johns. R. 5, was, trespass for entering the plaintiff’s close and breaking down and destroying his bark mill, &c. The plea, it is true, appears to have been only the general issue, and the defendant claimed title in the bark mill, &c., as personal’property. The defendant failed, in the court below, to prove his ownership in the personal property, his witnesses being adjudged incompetent. The court say, “ the entry upon the lands of the plaintiff was, at all events, a trespass, and if the defendant showed no title to the mill-stone, the taking it away was a substantial injury, which well warranted the verdict.’’ Blake v. Jerome, 14 Johns. R. 406, in error, on certiorari from a justice’s court, was this. The action was tresspass for entering the plaintiff’s field and taking away a mare and colt. The defendant pleaded- the general issue, and gave notice that the mare and colt were his'fiproperty, as appears from the report. The marc and colt were taken out of the plaintiff’s field, under the direction- of the defendant, after he had demanded them and their delivery had been refused, and after he had been forbidden to takejthem; The evidence, as to their ownership, was conflicting.
The court say, “ the evidence, as to the right to the marc and colt, may be somewhat questionable, but the defendant below, was, at all events, guilty of a trespass in sending a person on the land of the plaintiff to take them aivay. The action was, therefore, technically supported, and where the evidence as to the true ownership of the property is so nearly balanced, the judgment ought not to be disturbed.” It is true, in neither of these cases does there appear to have been a plea, or a notice, justifying the,entry upon the close of the plaintiff, and whether, by the practice of the state of *282New York, a special plea in such case is required, before a ■justice’s court, I am not advised. The report of each case ' is short, and I should not be surprised if it should be found, in the latter case, that the notice, in fact, went to justify the entry by the defendant to take the mare and colt as his property. So far as the personal property was concerned, there was no possible occasion for any special plea or notice. At all events, there does not seem to have been any embarrassment in the defendant’s rights from want of proper pleadings.
In the latter case, the justice gave judgment for the plaintiff to recover the value of the mare and colt, and on the case coming before the supreme court, on the certiorari, they say, in substance, that the true ownership of the mare and colt is questionable, from the evidence, but inasmuch as the defendant below was, at all events, guilty of a trespass in sending a person on the lands of the plaintiff to take them away, the judgment ought not to be disturbed. This adjudication, I conceive, proceeds on the direct ground that the defendant could not have justified the entry, though it had been found that he was the owner of the mare and colt. Though these cases do not appear to have received a full investigation, yet, the court was of great respectability, and have,, I think, laid down the law as it is well established by authority. It does not, as I have before said, appear, that the cattle in question came on the premises of the plaintiff by his default or consent. It may have been lawfully, and we are not to presume the contrary.
If the defendant claims to justify the entry, on this ground, it was for him to aver and prove the manner in which the plaintiff’s possession of the cattle commenced. Until this is done, the case is to stand on the ground that it was through the default of the defendant. The question, whether the defendant’s having subsequently claimed these heifers as his own, and this being known to the plaintiff before he forbade him to enter on his premises, can place the plaintiff on the same ground as if he had been originally in the wrong, and justify the entry, may be worthy of some consideration.
The principle which allows the party injured to redress himself, upon his mere motion, by a recaption of the property, *283is, at best, a delicate one and ought not to be extended. It was founded upon a supposed necessity., as it might sometimes be the case that the owner would have no other opportunity of doing himself justice. Its tendency is, to the use of private force, as a means for'the redress of private injuries, and to enable the strong to give law to the weak. Its genius is insubordination and-it fattens in the blood of social justice. The history of our country furnishes too many lamentable illustrations of the baneful tendency of the principle of allowing, in any case, an injured man to take redress into his own hands. In the case of an - ouster of the freehold, the right of re-entry is confined to those cases in which the entry of the tenant, ab initio, as well as the continuance of his possession, afterwards, is unlawful. 3 Bl Com. 171. If the entry of the tenant, was, at first, lawful, and the ouster consisted in the wrongful detention of the possession afterwards, the law gives no right of redress to the person injured, by a re-entry. The claimant must be put to his action. 3 Bl. Com. 175, If, then, there is no redress by are-entry, where the eviction arises from a wrongful detention of the possession, simply, it would seem, by parity of reason, that there should be no right of recaption as to personal property, where the injury lies in an unlawful detention, and not, ab initio, in wrong. A tenant tor years cannot, after his term has expired, enter to remove his goods from the premises. His only remédy, in such case, is, to demand them, tendering at the same time sufficient amends for any damage which they may have occasioned, and if the landholder then refuses to give them up, the owner may have his action of trover or detinue for such wrongful detention.
There is no case, which, under such circumstances, justifies an entry upon the premises to seize the goods.
In Br. Trespass, Pl. 213 and 20 Viner, 507, Pl. 17, wc have this case. If A.’s boasts are in another’s land, damage feasant, he cannot justify an entry to drive them off.
The reason is, it would defeat the landholder of his right of distress. All that wc learn from the case now before us, is, that the defendant claimed to own the cattle and the plaintiff was apprized of this claim before he forbade his entry upon his premises, (probably, by a fair construction of the case, *284to take them.) Why the plaintiff forbade his entry or de-tained the cattle does not appear. He had, at least, a prima facie right to distrain them damage feasant, and the defendant cannot justify an entry on the plaintiff’s premises to defeat him of this apparent right. Until, at least, there was a tender of sufficient amends for any damage done by them, the plaintiff was not, prima facie, guilty of a wrongful detention. But suppose he had been, the defendant must have been put to his action. I am aware of no case, like the one before us, in which an entry upon the lands of the person in possession of property, which begins in right, to retake it, has been justified. Certainly we have been referred to none, showing that a subsequent unlawful detention of property is equivalent to an original wrongful possession, as it respects the right of- recaption. The rule is otherwise as to lands. As this right, in all cases, is founded upon a supposed necessity, I think there is good reason why there should be a different rule in the two cases. When the original possession was lawful, an apparent right of possession was thereby gained and the law does not and ought not, as I think, to suffer that right to be overthrown by the mere act of the party, upon his setting up a subsequent unlawful detainer of the property. I therefore should advise a reversal of the-judgment of the county court.