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right to enter upon the land at the expiration of the term. There is not the slightest pretense for considering him as a trespasser in this case."

And again, Lord KENYON remarked, in Argent v. Durrant, 8 T. R. 403-"In trespass, the defendant pleaded not guilty; and if he might give in evidence that at the time of the trespass the freehold was in such a one, and he, as his servant and by his command, entered, was the question: and it was said, by Coke, that the same might be so well enough,"-citing 1 Leon. 301.

And see to the same effect Dodd v. Kyffin, 7 T. R. 354; Bartholomew v. Ireland, Andrews, 108.

In Gilbert's Ev. 258, it is said "In trespass, on not guilty, the defendant may give in evidence that the right of freehold was in J S., and that he by his command entered; for if the defendant entered by the command of J. S., it is the same as if J. S. entered, and consequently, if J. S. hath the right, the estate is vested in him by the entry, and consequently the defendant is no trespasser on the plaintiff."

In Harvey v. Brydges, 14 M. & W. 437, PARKE, B., lays down the law in these terms: "Where a breach of the peace has been ccmmitted by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification, that the plaintiff was in possession of the land against the will of the defendant, who was the owner, and that he entered upon it accordingly, even though in so doing a breach of the peace was committed." ALDERSON, B., ALDERSON, B., concurred. And this doctrine has been fully confirmed in Blades v. Higgs, 10 C. B. N. S. 713. See, also, Pollen v. Brewer, 7 id. 371; Davison v. Wilson, 11 Ad. and E., N. S., 890 (63 Eng. Com. Law); Burling v. Reid, id. 905; Davis v. Burrell, 10 C. B. 821; Patrick v. Colerick, 3 M. & W. 483.

The result of English authority then is, that an entry by the landlord with force is legal only to the extent of the penalties provided by the statute of forcible entry and detainer, or other criminal process, and that no right of common-law action by the tenant is to be inferred from the statutory prohibition.

If we turn now to the American cases, we shall find the law, as

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indicated by the English authorities, even more strongly and unequivocally maintained. Such is the purport of the decisions, without disturbance to the current, setting in one direction, in the States of Massachusetts, New York, Pennsylvania, North Carolina, South Carolina, New Jersey, Kentucky, Missouri, and probably in some other jurisdictions. And in our own State, although the subject does not seem to have been largely discussed (perhaps because the principle has been regarded as too firmly established to admit of serious question), the authorities point unmistakably in the same direction. See Wilde v. Cantillon, 1 Johns. Cas. 123; Hyatt v. Wood, 4 Johns. 150; The People v. Leonard, 11 id. 504; Ives v. Ives, 13 id. 235; Jackson v. Morse, 16 id. 197; Erwin v. Olmstead, Cow. 229; Jackson v. Farmer, 9 Wend. 201; The People v. Van Nostrand, id. 50; Livingston v. Tanner, 14 N. Y. 64; The People v. Field, 52 Barb. 198; S. C., 1 Lansing, 242; Kellam v. Janson, 17 Penn. St. 467; Zell v. Ream, 31 id. 304; Overdeen v. Lewis, 1 W. & S. 90; Johnson v. Hannahun, 1 Strob. 313; Walton v. File, 1 Dev. & B. 567; Tribble v. Frame, 7 J. J. Marsh. 599; Beecher v. Parmele, 9 Vt. 352; Yale v. Seely, 15 id. 221; Hodgeden v. Hubbard, 18 id. 504; Mussey v. Scott, 32 id. 82; Todd v. Jackson, 2 Dutch. 525; Krevet v. Meyer, 24 Mo. 107; Fuhr v. Dean, 26 id. 116; Rawson v. Morse, 4 Pick. 127; Sampson v. Henry, 13 id. 36; Meader v. Stone, 7 Metc. 171; Miner v. Stevens, 1 Cush. 485; Mugford v. Richardson, 6 Allen, 76; Hilbourne v. Fogg, 99 Mass. 11; Curtis v. Galvin, 1 Allen, 215; Moore v. Mason, id. 406; Winter v. Stevens, 9 id. 526; Merriam v. Willis, 10 id. 118; Pratt v. Farmer, id. 519; Morrill v. De la Granja, 99 Mass. 383; Brown v. Cram, 1 N. H. 169; Kingsbury v. Pond, 3 id. 511; Ferrin v. Symonds, 11 id. 365; Chellis v. Stearns, 22 id. 315; Forsyth v. Morse, Rockingham, June, 1870, not yet reported; and see Taylor's Landlord and Tenant, § 782; 1 Washb. R. P. 540, 541.

In Hyatt v. Wood, 4 Johns. 150, it is held that "if a person hav ing a legal right of entry on land enters by force, though he may be indicted for a breach of the peace, yet he is not liable to a private action of trespass for damages at the suit of the person who has no right and is turned out of possession," SPENCER, J., saying: "It may be laid down as an axiom, that no man can recover upon a claim of right to property against another whose rights to the subject-matter are superior to those of the person so claiming damages for a violation of his supposed rights. At common law, and prior

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to the statutes to prevent forcible entries, wherever a right of entry existed the disseisee might lawfully regain the possession by force. 2 Hawk. P. C., ch. 64. In a case bearing analogy to the present, of personal property, the right of recaption exists, with the caution that it be not exercised riotously or by a breach of the peace; for should these accompany the act the party would then be answerable criminally; but the riot or force would not confer a right on a person who had none, nor would they subject the owner of the chattel to a restoration of it to one who was not the owner."

Hawkins, cited above, is thus (2 P. C., ch. 64, p. 29): "He who is wrongfully dispossessed of his goods may justify the retaking of them by force from the wrong-doer, if he refuse to deliver them; for the violence which happens through the resistance of the wrongful possessor being originally owing to his own fault, gives him no just cause of complaint, inasmuch as he might have prevented it by doing as he ought."

In Jackson v. Farmer, 9 Wend. 201, NELSON, J., after declaring the principle as asserted in Hyatt v. Wood, and affirmed in Ives v. Ives, says: "This opinion, apparently harsh and tending to the public disturbance and individual conflict, is abundantly supported by authority, and must be considered the law of the land,"-citing 3 Bl. Com. 5, 174; 1 Hawk. 274; 7 T. R. 43, etc., etc. He continues: "It was the abuse of this summary power to right one's self by entry, where the right of entry existed, which gave rise to the numerous English statutes against forcible entry and detainer, of which our old act was substantially a copy; and in these acts and the common-law remedy by indictment are to be found the only protection of the party thus forcibly dispossessed. They punish certainly the force, and in some cases make restitution of the possession; but so far as the civil remedy is concerned, there is none but what is afforded by those acts."

The New York Revised Statutes provide that no entry shall be made into any lands or other possessions but in cases where entry is given by law; and in such case in a peaceable manner, not with a strong hand or multitude of people." Commenting upon this statute, MORGAN, J., in the very recent case of The People v. Fields, 1 Lans. 242, says: "In some few cases judges have advanced the doctrine that any entry, even by the person entitled to the possession, is unlawful, if made against the will of the party in possession. Such a view of the statute is clearly contrary to the decisions of our VOL. XII.-13

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own courts and to the policy of the law. See 1 Washb. R. P. 540. Our statutes do not interfere with the common-law right of justifying, in an action of tresspass quare clausum fregit, even a forcible entry."

The Vermont cases may seem to be somewhat conflicting. In Beecher v. Parmele, 9 Vt. 352, REDFIELD, J., says: "It is now well settled that an intruder * * in quiet possession of land, * * may be forcibly expelled by the owner, * * so far as the land is concerned. If the owner is guilty of a breach of the peace and trespass on the person of the intruder, he is liable for that, but his possession is lawful;" and trespass was not held to lie against him. And to the same effect is Yale v. Seely, 15 Vt. 221, and Hodgeden v. Hubbard, 18 id, 504.

*

But in Dustin v. Cowdry, 23 Vt. 631, the court held a different doctrine, placing the decision upon the authority of the then recent decisions of Newton v. Harland, 1 M. & G. 644, and Hillary v. Gay, 6 C. & P. 284, the court, after a full consideration of these cases, remarking: "This is the latest declaration of the courts of Westminster Hall upon this subject. * We have no disposition to add any thing in regard to the true construction of law as derived from the decisions of the courts of Westminster Hall, and we think the decisions of the English courts as to the common law or the construction of ancient statutes are to be regarded of paramount authority."

Now, concerning these English cases- Hillary v. Gay and Newton v. Harland (the only two English cases which seem to be in opposition to the otherwise uniform current of English authority) -it is sufficient to remark that, in the latter case, ALDERSON, B., dissenting from the opinion of the majority of the court, denied the authority of the former nisi prius decision, which was subsequently disowned in Harvey v. Brydges, 14 M. & W. 437; that the authority of Newton v. Harland was “much questioned" by CRESWELL, J., in Davis v. Burrell, 10 C. B. 825; substantially overruled in Pollen v. Brewer, 7 C. B. (N. S.) 373 (opinion by EARL, C. J.); and that the supposed authority of both cases, shaken as we have seen by the subsequent English cases, was expressly rejecte in the comparatively recent case of Blades v. Higgs, 10 C. 3. (N. S.) 713.

And, therefore, regardful still, and properly so, of the "paramount authority" of the English decisions as to the common law the court in Vermont came at last to the conclusion, in Mussey v.

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Scol., before referred to, that where a landlord, having a right of entry, violently broke into the premises during the temporary absence of the tenant, he was considered nevertheless to have acquired a lawful possession thereby, which he might defend by force against the tenant; thereby substantially overruling its previous decision in Dustin v. Cowdry. If the court in Vermont has in a still more recent case (Whittaker v. Perry, 38 Vt. 107) reaffirmed the doctrine of Dustin v. Cowdry, its respect for the authority of Westminster Hall would seem to be diminished, unless, as it occurs to us, the earlier and later cases in that State may, upon a careful examination of the facts in the several cases, be found, after all, not to be seriously conflicting, nor, upon the whole, opposed to the general course of English and American authority. So it will be found on examination that some of the earlier Massachusetts decisions are founded upon the supposed authority of the exploded cases of Hillary v. Gray and Newton v. Harland; while the latter cases in that State are in full accordance with the modern doctrine. Perhaps this remark applies only to the first reported case of Sampson v. Henry, 11 Pick. 379, where Mr. Justice WILDE lays down the broad proposition that "the law does not allow any one to break the peace and forcibly to redress his private wrongs. He may make use of force to defend his lawful possession; but, being dispossessed, he has no right to recover possession by force and by a breach of the peace."- a proposition not very objectionable in the abstract, but which is not always to be received in its unrestricted terms and without qualification. It was a mere dictum of the learned judge, not called for by the case, which was trespass for an assault, in which the defendant claimed the right, as stated in the opinion of the court, "not only of breaking open the house and entering therein with force and violence, but also of committing an assault with a dangerous weapon;" and the real purport and substance of the decision is all that the case called for, namely, that inasmuch as improper force was used, trespass for an assault lay. In the same case, 13 Pick. 36, it was expressly held that trespass quare clausum did not lie.

In Miner v. Stevens, 1 Cush. 482, Judge WILDE cites with approval those English and New York cases which hold that possession may be regained by force, and that trespass quare clausum will not lie in such a case, and declares this to be the law of Massachusetts, notwithstanding the statute against forcible entry and detainer. To