8 CO. REP. 146 &.

SIX C ~ R P ~ N T ~CASE
R~' 695
Note, reader, in this ease of 6 E. 3. there are divers things worthy observation,
and amongst them the antiquity of the (U)Conitnon Pleas ; for i t appears thereby
that it was a Court long before the Statute of Magna Charta, made in 9 Hen. 3. as
appeaxs also i~ (b) 36 Ass. pL. 24. where it appears, that King Henry 1. made letters
prstent of con~rmatioIito the Abbot of B. of all usages ; arid that they should have
c o I i ~ ~ s aofR ~all ~ a ~ i ~ofi epleas,
r so that the justices of one Bench, nor the other, nor
justices of ~i8sisqshould nothitig ititermeddle, &c. which is a direct proof, that in the
time of King Henry 1. there were Courts of the one Bench and the other, and also
justices of aasise, &e.
3. The term for the benefit of the grantee has to some respect continuance; aud
therefore if lessee for years grants a rent charge, and afterwards surrenders, yet for
the benefit of the grantee the (e) term has continuance j although in T& veritute it is
determined; and therewith agrees 5 Hen. 5. 10 a. But it, is true, that the lessee
hinise-lf, by his surrender, may prejudice himself of an ( d )increase of an estate to be
NMIC to himself, as it is resolved in 35 H. 8. (6) ~xpositionde Perols 44. Fide The
&et(# o j ~ h ~ease, ~M. 38~Eliz. nin the~First ~Part ~
of my ' Reports,
~ fol. 154 a,

Cl46 a] THE SIX CARPE~TEXS'

CASE. 19 3 t '
"* @'

Mich. 8 Jacobi 1.
&solved,-1. When an entry, authority, or licence, is given to any one by the lam,
and he abuse8 it, he shall be a trespasser ab initio: hut not where the entry,
authority, or licence, is given by the party. 2. An act of omission cannot make a
party a trespasser ab initio.
Note. *Tender upon the land before the distress, makes the distress tortious ; tender
after the distress, atid before the i~npounditig,makes the detainer and not the
taking wrongful ; tender after the impoundit~g,makes neither the one uor the other
wrotigf U\.*
*If the plaintiff makes a sufficient teuder &er the avowant has return irreplevis-
able, he may have an action of detinue €or the detainer after; or he may, upon
satisfaction made in Court, have a writ for the re-delivery of the goods."
I n trespws b r a u g ~ tby John Vaux against T h o n ~ ~Newman,
s carpenter, arid five
other carpenters, for breaking his house, and for an assault and battery, 1 Sept. 7 Jac.
in London, in the pariah of St. Giles e J h z Cripplegate, in the ward of Cripplegate, &e.
and upon the new assignment, t h e plaintiff assigned the trespass in a house called t h e
Queen's H d . The defendants to all the trespass p.ietevfraclionen~domm pleaded not
guilty; and as $0 the breaking of the house, said, that the said house piecl' twnapore
yuo, &. et d i u anlea etpostea, was a common wine taverii, of the said J o h n Vaux, with
a common sign at the door of the said house fixed, &c. by force whereof the defendants,
pried' t ~ p a , ~&e. viz.~ h i m~pmrtcze port ~ e ~ into~ the
~ said / ~ the door
? house,
thereof being open, did enter, atid did there buy and drink a quart of wiiie, and there
paid for the same, &e. The plaintiff; by way of replication, did confess, that the said
house was a conimon tavern, and thaL they entered into it, atid bought and drank a
quarb of wine, and paid for i t : but further said, that one John Ridding, servaut of
the said John Vaux, at the request of the said defendants, did there then deliver
them atiother quart of wine, arid a perinyworth of bread, ~ m o u t i t ~ ntog 8d. arid then
they &here$id drink the said wine, arid eat the bread, and upon request did refuse to
pay for the same (A) : upon which the defendants did demur in law : and the only
(a) Co. Lit. 71 b. Pref. to 8 Co.
(hJ Preef. 3 Rep. p. 5. Fitz. Couusans 57. Br. Conusau. 40.
(c) 9 E. 4. 18. 1 Jones. 62. Cro. Car. 102. Lit. Rep. 336. Dall. 65. Poph. 40.
1 CO, 67 a. S'i. 9 Co. 107 b. Plowd. 198 a, Co. Lit. 335 h.
(elf Ante 75 b.
(8) Br. Expositiou de Parols 44. 1 Co. 145 a. Bridgm, 102. Co. Lit. 45 b.
6 Co. 79. 7 Co. 38 h. 2 4 E . 3 . 13.
(A) When an authority or licence given by the law is abused, in an action for the
696 SIX ~ A R P ~ N T ~ R~’
CASE 8 GO. REP. 146 b.

point in this case was, if the denying to pay for the wine, or non-payment, which is
all one (for every non-payment upon request, is a denying in law) makes the entry
into the tavern tortious.
And first, it was resolved when an entry, authority, or (a) licence, is given to any
one by the law, and he 130th abuse it, he shall be a trespasser ab [146 b] ~ n ~ i but o:
where an entry, authority, or licence, is given by the (6) party, and he abuses it,
there he must be punished for his abuse, but shall not be a trespasser ab ieitio. Aiid
the reason of this difference is, that in the case of a general authority or licence (c) of
law, the law adjudges by the subsequent act, yuo animo, or to what inbent, he entered ;
for acta ederio7.a indicant interiwa secreta. Vide 11 H. 4. 75 b. But when the paity
gives an authority or licence himself to do any thing, he cannot, for any subsequent
cause, punish that which is doue by his own authority or licence, and therefore the
law gives authority to enter into a common inn, or tavern, so to the lord to distrain ;
to the owfier of the grouI~dto distrain d a ~ ~ g e - f e a s a;nto t him in reversion to see if
waste be done ; to the eommorier to enter upon the land to see his cattle, and such
like. E t h 1 2 E . 4 . 8 b . 2 l E . 4 . 1 9 b . 5 H . 7 . l l a . 9 H . 6 2 9 b . 1 1 H . 4 . 7 5 h .
3 H. 7. 15 b. 28 H. 6. 5 b. But i f he who enters into the inn or tavern doth a
trespass, as if he (&)carries away any thing; or if the lord who distrains for rent
(B), or the owner for d ~ m a g ~ f e ~ aworks n t , or kills the ( e ) distress ; or if he who
~~ ~~~

trespass, if there is a plea in j u s t i ~ c ~ t i o the

n , plaintiff must either new assign the
abuse, or he must shew it in his replication. Il.lrmps.ivalt v. Smith, 2 Camp. 175.
Dateham v. BmZ, 3 Camp. 524. Dye v. Leathedale, 3 Wils. 20. per Buller, J.
Gundry v, FeItjam, 1 T. R. 338. Taylm v. Cole, 3 T. R. 291. S. C. 011 error,
1 H. Black. 555. But where the declaration complains of trespasses in breaking arid
entering the plaintiff’s close, and beating for game, &e. on divers days and times,
between such a day and the day of exhibiting the bill, and the defendatit pleads a
licence generally, he is bound to shew a licence eo-extensive with the trespasses
proved ; arid therefore the plaintiff having shewn a trespass prior to the date of the
liceurn, i s entitled to a verdict, althou h he did not new assign, but took issne on the
i
plea of licence. Barnes v. Hm,t, 11 ast. 451. The distinction seems to be that in
the first case, viz. the abuse of the authority given by law, the trespass is entire ; and
the whore trespass compla~€ie~ d , in part, by the special plea ;
of is ~ I ~ s ~ ~ eatr eleast
whereas in B ~ ~ v.%~~~~, s the trespasses being distinct, so that each trespass might
of itself be the subject matter of a separate count, or of a distinot action, the plea is
tantamount to a several answer to each trespass, and fails entirely as to one.
For what acts will make a rnati a trespasser ab initio, and what will not, vuba
Viti. Ab. Trespass G. a. Ab. Trespass B. Com. Dig. Trespass C. 2. Roll. Al),
Trespass G. Dye v. Leathwclale, Taylm v. Cole, ub. a p Mayw of Nmthaalpton v. Ward,
1 Wils. 107. Reynolds v. Cltwhe, 2 Ld. Eagm. 1399. Gates v. Bayley, 2 Wiis. 313.
Gderic v. Pelah, 2 Stra. 1272. Reed v. Earrkm, 4 Black. 1218. ~ ~ i ~ v ~ b
&fmgcm, 11 East. 395. - v. Blades, 5 Taunt. 19s. Bull. N. P. 81 a.
(a) 2 Roll. 561. Yelv. 96, 97.
(6) 3 Black. Corn. 213. 3 H. 7 11 a. Perk. sect. 191. Yelv. 96, 97. 31 E. 4.
19 b.
(c) 2 Roll. 561. 21 E. 4. 19 b. 76 b. per Gatesby. Yelv. 96,91. Perk. sect. 191.
5 H.7. 11 L.
( 4 ) Perk. sect. 91. 2 E. 4. 5. Cro. Car. 196. Yelv. 96.
( e ) 12 E. 4. I f b. 9 Co. 11 a. 1 And. 65. Cro, Jae. 118. Perk. sect. 191.
(E) By 11 Geo. 2. e. 19 S. 19. when any distress shall be made for any kind of
rent justly due, and any irregularity or unlawful act shall be afterwards done by the
party or parties distrainirtg or by his, her, or their agents; the distress itself shall
not be deemed to be unlawful, nor the party or parties makirig it be therefore deemed
a trespasser or trespassers ab initio : but the party or parties aggrieved by such ut~law-
ful act or irregularity shall or may recover full satisfaction for the special damage
sustained thereby, and no more, i n any actions of trespass, or on the caae, a t the
election of the p ~ a i r ~or t i ~~ ~ a j ~ t Since
i ~ s .this Act, i t has been heId, that trespass
ties against a landlord, who, on making a distress for rent, turned the plaintiffs family
out of possession, and kept possession of the premises on which he had irnpouounded
8 Co. RRP. 111 8. SIX C A ~ P ~ CASE
~ ~ E ~ ’ 697
enters to sea waate breaks the house, or (a)stays there all night ; or if the commoner
cuts down zb tree, in these and the like cases, the law artjudges that he entered for
that purpose j and because the Act which demotistrates it is a trespass, he shalt be a
trespaarer ab kidi~,as it appears in all the said books. So if (6) a purveyor takes my
cattle by fome of a commission, for the King’s house, it is lawful (c); but if he sells
them in the market, now the first taking is wrorrgfal ; and therewith agrees 18 H. 6.
19 b. Et sic de s ~ ~ ~ ~ b ~ ~ s .
2. It was resolved p8r totam C ~that (e)
~ not doing,
~ ~cannot~make ,the party who
has authority or licence by the law a trespasser ab initio,because not doing is no trespass ;
and, therefore, if the lessor distrairis for his rent, and thereupon the lessee tenders
hini the rent and arrears, &c. and requires his beasts again, and he will not deliver
them, this not doing cannot make him a trespasser ab iaitio (I)) ; and therewith agrees
33 H. 6. 47 a. So if a man takes cattle dam~ge-feasant,and the other offers s u ~ a i e n t
amends and he refuses to re-deliver them, now if he sues a replevio, ho shall reewer
(d) damages only for the detaining of them, and not for the Laking, for that was
lawful; and therewith agrees F. N. B. 69 g. temp. E. I. Beplevin 27. 27 E. 3. 88.
45 E. 3. 9. So in the case at Bar, for not (e) paying for the wine, the d e ~ e r i d a ~ ~
shall not be trcspessers, for the denying to pay for it is no trespass, and therefore
they cannot, be trespassers ab initio; and therewith agrees directly in the point
(f)12 Edw. 4. 9 b. For there Pigot, Serjeant, puts this very case, if one comes into
a tavern to drink, and wheti he has drunk he goes away, and will not pay the 1147 4
taverner, the taverner shall have an actiott of trespass against him for his entry. To
which Brian, Chief Justice, said, the said ease which Pigot has put, is riot (0)law,
for it is no trespass, but the taverner shall have an action of debt : and there before
(h) Brown held, that if I bring cloth to a tailor, to have a gown made, if the price he
not agreed in certain before, how much I shall pay for the makitig, he shall not have
an action of debt against me; which is meant of a general action of debt: but the
tailor in such a ease shall have (i) a special aetion of debt : .sciZ. that A. did put cloth
to him to make a gown thereof for the said A. and that A. would pay him as much
for makitig, and all necessaries thereto, as he should deser~e,and that for making
thereof, and all necessaries thereto, he deserves so much, for which he brings his
actiort of debt : in that case, the putting of his cloth to the tailor to be made ittto a
gown, is sufficient evidence to prove the said special contract, for the law implies i t :
and if the tailor over-values the making, or the necessaries to it, the jnry may
the distress. ~~~~~~ v. P ~ l e ~1 East,
~ ~ 139.
l , And where one who entered under
a warrant of distress for rent in arrear continued in possession of the goods upon the
premises for fifteen days, during the last four of which he was removing the goods,
which were afterwards sold under the distress ; i t was held by the Court, that trespass
might be maintained ; by Lord Elienborough, and Grose, J., on account of the taking
atid ~~~~~g tide gods fim the ~~~~~s~ and disturbiRg the p l a ~ t i t i possession
~s after
the time when they ought to have been removed, and to which positioti Le Blanc, J.
assented. Bagley J. held, that trespass i s the proper remedy against; a person who
hits made a clistress, continuing upon the premises after the time allowed by law.
~ ~ v. ~ u ~ ~g 11
a East.
~ , 395.
n ~
The optiori given~by the Act~is “ t o ~ a ibn t a i n
t ~ e s p a ~where,
s by the general rules of law, trespass would be the proper remedy ;
atid case wbere case would he so. Per Lord Ellenborough, ib. 401.
( I C ) 2 33011. $61. I1 H, 4. 75 b. Fitz, Tresp, 176. Br. Tresp. 97. Br. Replica. 12,
( b ) 3 Roll. 561. 18 H. 6. 9 b. 2 Inst. 546.
(c) Purveyaiice abolished 12 Car. 2. c. 24. Yirle 4 Black. Com. 116.
(c) Cr. Car. 196. 2 Bulst. 312. 1 Roll. Rep, 130. ACC. 1 L. Raym. 188. LCC
Willes 637. ace. 11 East. 402.
(D) Contra, Rolle’s Ab. Tresp. 0.. pl. 8.
( ( I ) Lit. Rep. 34. Dr. and Stud. lib. 2. 112 b. Hetl. 16.
(a) 1 Roll. Rep. 60. 2 Bulst, 312,
(f)1 Sa.5. 18 E. 4. 9 a. b.
(gf 1%E. 4. 9 b. N. It is good law.
(h) 12 E, 4. 9 b.
(i) 1 Sid. 5.
698 ALTHAM’S CASE 8 CO. FtEP. 147 b.

mitigate it, and the plaintiff shall recover so much as they shall find, and shall
be barred for the residue. But if the tailor (as they use) makes a bill, and he him-
self values the making and the necessaries thereof, he shall not have an action
of debt for his own value, and declare of a retainer of him to make a gown, &c. for so
much, unless i t is so especially agreed. But in such case he may (a) detain the garment
until he is paid, as the hostler may the horse. Vide Br. Distress 70. and all this was
resolved by the Court. Vule the Book in 30 Ass. pl. 38. John Matrever’s case, it is held
by the Caurt, that if the lord or his bailiff comes to distrain, and (b) before the distress
the tenant tenders the arrears upon the larid, there the distress taken for it is tortious.
The same law for damage-feasant, if before the distress he tenders sufficient amends;
and therewith agrees 7 E. 3. 8 b. in the Mr. of St. Mark’s case ; and so is the opinion
of Hull to be understood in 13 H. 4. ( e ) 17 b. which opinion is riot well abridged in
title Trespass 180. Note, reader, this difference that tender upon the (d) land before
the ( 8 ) distress, makes the distress tortious ; terider after the distress, and before the
imponnding, makes the detainer, and not the taking wrongful : terider after (j’) the
impounding, makes neither the one nor the other wrongful ; for then i t comes too
late, because then the cause is put to trial of the law, to be there determined (E). But
after the law has determined it, and the avowant has return irreplevisable, yet if
the plaintiff makes him a sufficient tender, he may have an action of deCnue for the
detainer after; or he may, upon satisfaction made in Court, have a writ for the
re-delivery of his goods ; and therewith agree the said [I47 b] books in 13 H. 4. 17 b.
14 H. 4. 4. Registr’ Judic’ 37. 45 E. 3. 9. and all the books before. Tide 1 4 Ed. 4. 4 b.
2 H. 6. 12. 22 Hen. 6. 57. Doctor and Student, lib. 2. cap. 27. Br. Distresa 72. and
Pilkinqlm’s ease, in the Fifth Part of my Reports, fol. 76. and so all the books which
piin4 facie seem t o disagree, are upon full and pregnant reasou well reconciled arid
agreed.

[148 a] EDWARD
ALTHAN’S
CASE.
Trin. 8 Jac. 1.

111the Common Pleas.

Thomas Lawrence, and Marcia his wife, by Charles Cardinal their attorney,
demand against Edward Altham, gent. and Margaret his wife, the third part of
100 acres of land, 10 acres of meadow, and 60 acres of pasture, with the appurteri-
ances in Gosfield, as the dower of the said Mar&, of the endowment of Thomas Nash
the elder, sometime her husband, Rcc. And the aforesaid Edward and Margaret, by
John Rowley, their attorney, come and say, that the aforesaid Thomas Lawrence, ancl
Marcia, the dower of the said Marcia, of the teiiements aforesaid, with the appurten-
ances, whereof, cPCC. of the enclowment of the said Thomas Nash, some time the husband,
&c. against them ought not to have, because they say that the said Thomas Nash, some
time the husband, &c. was seised of the tenements aforesaid, whereof, Bc. in his
(a) Hob. 42. Yelv. 67. Cro. Car. 271, 272. Br. Distress 71. Palm. 223.
Hutt. 101. 22 E. 4. 49 b. Moor 877. 5 Ed. 4. 2 b. 1 Roll. Rep. 449. 2 Roll. Rep.
438. 2 Roll. 85, 92. 3 Bulstr. 269. 270.
(a) Er. Distress 37. Br. Tender, QGc.18.
(c) 2 Roll. 561.
(d) 2 Sid. 40.
(e) 5 Co. 76 a. 2 Inst. 107.
(A 2 Roll. 561. 1 Brownl. 173. 2 Inst. 107. 5 Co. 76 a. 12 Mod. 461.
Lutw. 1596. Gilb. Rep. 82.
(E) An action on the case will not lie for detaining cattle distrained and impounded,
where a tender of amends had been made before the impounding ; the proper remedy
being trespass or replevin. Anscmnb v. Shew, 1 Camp. 285. S. C. 1 Taunt. 261.
Lindm v. Hocrper, Cowp. 414. Nor will such action lie where the tender was after
impounding. Sher-ifl v. Jams, 1 Bing. 341. S. C. 8 B. Moore, 334. and vide note (A)
Pilhingtan’s case, 5 Co. 76 it.