Jewell v. Mahood , 44 N.H. 474 ( 1860 )

Sargent, J.

When the plaintiff in this ease accepted the deed from James and Margaret Hall of the land in question, with the reservation specified, it was the same as though he had owned the land before, and had conveyed to said Halls the right to enter said premises during the time and for the purposes specified in the resei’vation. The defendant entered under an express authority'; an authority in fact, and not one conferred or implied by law. It is well settled that where a man abuses an authority in law, by committing acts which are in themselves trespasses, not authorized by the authority, the party is a trespasser ab initio ; but that when there is an authority in fact, and a party exceeds that authority, he is only liable for the excess. Six Carpenters’ Case, 8 Co. 290 ; S. C., 1 Smith’s L. C. 62, and cases cited; Allen v. Crofoot, 5 Wend. 506 ; Cushing v. Adams, 18 Pick. 114; Wendell v. Johnson, 8 N. H. 220 ; Ferrin v. Symonds, 11 N. H. 868 ; State v. Moore, 12 N. H. 42. In this case the gist of the action is the breaking and entering the plaintiff’s close; the other circumstances are only stated as affecting the damages. But the defendant is .not liable for breaking and entering, because he had the right to enter, and in this form of action if the breaking and entering is not made out the action fails. If the plaintiff would recover damages for any of the.acts done after entry, he must bring case or trespass in some other form, and not trespass quare clausum fregit.

Judgment on the verdict.