Trespass ab initio arises where a person lawfully enters upon the property of another, under license of the law, and then abuses his license by doing some tortuous act.52 The doctrine of trespassor ab initio is never applied in cases where the original entry was by the consent or invitation of the party injured.53 The leading case on this distinction is the early case known as The Six Carpenters Case.54 The decision in which is in part as follows: " In trespass brought by John Vaux - against Thomas Newman, carpenter, and five other carpenters, for breaking his house, and for an assault and battery, U Sept. 7, Jac, in London, in the parish of St. Giles extra Cripplegate in the ward of Cripplegate, etc., and upon the new assignment, the plaintiff assigned the trespass in a house called the Queen's Head. The defendants to all the trespass praeter fractionem domus pleaded not guilty; and as to the breaking of the house said, that the said house, praed'tempore quo, etc., et dui antea et postea, was a common wine tavern of the said John Vaux, with a common sign at the door of the said house fixed, etc., by force whereof the defendants, prat'tempore quo, etc., viz., hora quarta post meridiem, into the said house, the door thereof being open, did enter, and did there buy and drink a quart of wine, and there paid for the same, etc. The plaintiff, by way of replication, did confess, that the said house was a common tavern, and that they entered into it and bought and drank a quart of wine, and paid for it, but further said, that one John Ridding, servant of the said John Vaux, at the request of the said defendants, did there then deliver them another quart of wine, and a pennyworth of bread, amounting to 8d., and then they there did drink the said wine, and eat the bread, and upon request did refuse to pay for the same; upon which the defendants did demur in law; and the only 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 entry, authority or a license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio; 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 initio. And the reason of this difference is, that in the case of a general authority or license of law, the law adjudges by the subsequent act, quo animo, or to what intent he entered, for acta exteriora indicant interiora secreta. Vide 11, H 4 75, b. But when the party gives an authority or license himself to do any thing, he cannot, for any subsequent cause, punish that which is done by his own authority or license, and therefore the law gives authority to enter into a common inn, or tavern; so to the lord to distrain; to the owner of the ground to distrain damage-feasant; to him in reversion to see if waste be done, to the commoner to enter upon the land to see his cattle; and such like. Vide 12, E 4, 8, b. 21, E 4; 19 b., 5 H 7, 11 a; 9, H. 6, 29, b.; 11 H. 4, 75 b.; 3 H. 7, 15 b.; 28 H, 6, 5 b. But if he who enters into the inn or tavern doth a trespass, as if he carries away anything; or if the lord who distrains for rent, or the owner for damage, feasant, works or kills the distress, or he who enters to see waste breaks the house, or stays there all night; or if the commoner cuts down a tree; in these and the like cases, the law adjudges that he entered for that purpose; and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio, as it appears in all the said books. So if a purveyor takes my cattle by force of a commission, for the king's house, it is lawful; but if he sells them in the market, now the first taking is wrongful." From this case which is one of the most celebrated in Lord Coke's Reports three points are collected.55

48 Ballard vs. Harrison, 4 M. & S.,

393; Holmes vs. Seely, 19 Wend. (N. Y.), 507; Morey vs. Fitzgerald, 56 Vt., 487, 48 Am. Rep., 811.

49 Bassett vs. Pennsylvania R. Co.,

201 Pa. St., 226; Omaha vs.

Croft, 60 Nev., 59. 50 Barrow vs. Page, 5 Haym.

(Tenn)., 97; Smith vs. Brazelton, 1 Herak (Tenn.), 44. 51 See Subject Public International

Law, Volume XII, subject 38.

52 Ikley vs. Nichols, 12 Pick.(Mass.,) 270, 22 Am. Dec, 425; Russell vs. Hanscomb, 15 Gray (Mass.), 166; Wyke vs. Wilson, 173 Pa. St., 12.

53 Pike vs. Heinzmann, 89 111. App., 642; Cushing vs. Adams, 18 Pick. (Mass.), 110; Wendell vs. Johnson, 8 N. H., 220, 29 Am. Dec, 648; Hubbell vs. Wheeler, 2 Ark. (Vt.), 359.

54 8 Coke, 290.

(1) That if a man abuse an authority given him by the law, he becomes a trespasser ab initio.

(2) That in an action of trespass, if the authority be pleaded, the subsequent abuse may be replied.

55 This paragraph is based upon note to Six Carpenters Case in Smith's Leading Cases.

(3) That a mere nonfeasance does not amount to such an abuse as renders a man a trespasser ab initio.

The first of these points has been frequently confirmed. In Oxley vs. Watts,56 the plaintiff sued the defendant in trespass for taking a horse; the defendant justified taking him as an estray. Replication, that, after the taking mention in the declaration, the defendant worked the horse, and so became a trespasser ab initio. One consequence of this doctrine was, that, if a party, entering lawfully to make a distress, committed any subsequent abuse, he became a trespasser ab initio. In Gargrave vs. Smoth57 and Dye vs. Leatherdale,58 this was expressly decided. As it was found, however, that this doctrine bore extremely hard on landlords, stat. 11, G 2, c. 19, s. 19, provided, "That where any distress shall be made for any rent justly due and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not be deemed unlawful, nor the distrainer a trespasser ab initio; but the party grieved may recover satisfaction for the damage in a special action of trespass, or on the case, at the election of the plaintiff, and if he recover, he shall have full costs." The true construction of the above words, "trespass, or on the case, " is, that the party injured must bring trespass if the injury be a trespass, and case, if it be the subject matter of an action on the case. The nature of the irregularity determines the form of action. Hence, case ought to be brought for an irregularity in omitting to appraise the goods before selling them, and trespass for remaining in possession beyond the five days.59

56 I T. R., 12. 57 Salk., 221. 58 3 Wilson, 20.

59 Winterboume vs. Morgan, 11 East, 395.

As to the right of a plaintiff to reply the abuse. where it is such as renders the defendant, who has pleaded the authority which he has abused, a trespasser ah initio; that is established by several cases. In the principal case it seems to have been assumed; for no objection was taken to the replication as being a departure; but Lord Coke says, that the only point was, whether the denying to pay made the first entry into the tavern tortious. In Gargrave vs. Smith60 trespass for taking goods. Pleas, That the defendant distrained them damage-feasant. Replication, that he afterwards converted them to his own use. "On demurrer, it was holden to be no departure, but to make good the declaration; for he that abuses a distress - is a trespasser ab initio; and it would be of no avail to the plaintiff to state the conversion in this declaration for it is in no ways necessary to his action, and, if alleged need not be answered. It would be out of time to state it in the declaration, but it must come in the replication.,,

60 Salk., 221, B. N. P., 81.

Section 33. Trespass To Try Title

The action of trespass to try title is in action in use in the State of Texas to take the place of the action of ejectment. As this form of action is peculiar to this one State, it cannot be profitably considered in a work of this size.61

61 See the Texas Statutes.