Sterling v. Warden , 51 N.H. 217 ( 1871 )

Foster, J.

The questions to be considered in this case are all presented by the demurrer to the plea of the general issue and to the second special plea, which comprehends all the facts relied upon by the defendant as a justification for the trespass alleged. The other pleas vary from this only in the omission of certain allegations of fact contained in the second plea, — except that in tlie seventh plea there is an allegation that the plaintiff “ then and there had notice ” of the appointment and qualification of Gilchrist and the defendant as postmaster and assistant postmaster, omitting the allegation contained in the second plea, that Gilchrist informed him “ of the facts and matters aforesaid.”

The substance of the defendant’s attempted justification is, not merely that, as assistant postmaster, an officer and agent of the United States government, — the agent and servant also of his immediate principal, Gilchrist, the postmaster, an officer and agent of the government, — lie committed the acts charged in the declaration, solely and necessarily in pursuance of his right and duty; but, also, that his entry upon the premises and removal of the personal property were justified by the license and permission given by the plaintiff to his principal, Gilchrist, and that the assault upon the plaintiff was committed in self-defence, and was accompanied with no unnecessary force. He also attempts to justify his entry into the building, by insisting upon the right of a citizen to enter a public post-office for the purpose of getting his mail-matter, alleging that he went there for that purpose, making his errand known to the plaintiff. /

We will first consider the subject of the license given by the plaintiff to Gilchrist, — bearing in mind that, upon demurrer, all the allegations of the defendant are to be regarded as established facts.

It appears, then, that with full notice on the part of the plaintiff of the appointment and qualification of Gilchrist and the defendant as postmaster and assistant postmaster, and special information from Gilchrist that he proposed and intended to go to the post-office room on the thirtieth of July, “ and then and there remove and take away therefrom the furniture, articles, and other things .belonging to said post-office, and remove the same to another building,” the plaintiff then and there “ assented thereto, and gave his consent, license, and permission that said Gilchrist might and should take away and remove said furniture, articles, and things, as aforesaid.” It also appears that the defendant was employed by Gilchrist, and acted under his direction, in the attempt to take possession of and to remove the property, and that his assistance was necessary for this purpose.

It is not needful to consider, in this connection, whether the entry of Gilchrist upon the premises was justifiable virtute officii, and under authority in law, whereby a duty being imposed upon a public officer to take possession of public property, such duty could not be performed without an entry upon the premises of the plaintiff; nor whether an implied license may be presumed, from the duty of the plaintiff to the government and its legally appointed agents, under the circumstances of this case (see 2 Bouv. Inst. 562-570, passim), which license or authority would extend as well to the defendant, the assistant postmaster, as to Gilchrist, his immediate superior and principal—Boody v. The United States, 1 W. & M. 150; because here express license to Gilchrist is averred and established.

The plea alleges that the plaintiff “ gave his consent, license,: permission that said Gilchrist might and should take away and remove ” the public property.

“ A license is express where, in direct terms, it authorizes tlie per-foran nee of a certain act, — as where a man who owns a dam authorizes licen. Inst, furn: Man son v neighbor to draw water from it to his mill: in this case the has a right to enter the premises to get the water.” 2 Bouv. T. A bare parole license, though without consideration, will justification for an act which would otherwise be a trespass. Marston v. Gale, 24 N. H. 177; Batchelder v. Sanborn, ibid 479; Rawson v. Morse, 4 Pick. 127.

Sr only to ai the < cense, though ordinarily regarded as personal, extending arty to whom it is expressly given, will nevertheless apply j the agents and servants of the licensee, whenever from .^stances it can be presumed that there was an implied license to such persons, — “ as where a license is given to a man to remove a weighty matter, which requires the assistance of several other persons.” 2 Bouv. Inst. 568. A license to a man to remove a bank safe would imply a license to as many servants of the licensee as shqpld be requisite for his assistance. A license necessarily implies the right to do everything without which the act cannot be done. Taylor’s Land, and Ten., sec. 766; Curtis v. Galvin, 1 Allen 217.

The jalea in this case is conclusive upon this fact, and establishes the license to the defendant. It alleges that Gilchrist requested the defendant to assist him, and that “ it was necessary and proper, in order that said- Gilchrist should be able and have sufficient force conveniently and properly to take away and remove said furniture, articles, and things from said post-office room as aforesaid, that he should then and there be aided and assisted by the defendant.”

Undoubtedly a bare license is revocable before it is executed; but there are licen0' s which are irrevocable, though they relate to an entry upon and +1 jupation of land or real estate, and are by parol; “ as ce, the license is directly connected with the title to y which the licensee acquires from the licenser at the is given, whereby the license is coupled with an inter-are one sells personal chattels on his own land, and, where, fo. personal pt time the lick est. Thus, before a reasonable time to remove them, forbids the purchaser to enter a license which he could not revoke Nettleton v. Sikes, 8 Met. 34; Wood v. Manley, 11 Ad. & ns v. Camp, 11 Conn. 525; White v. Elwell, 48 Me. 360; aal Prop. *401.

An it is said thaton pled with an interest is where the thing, also acquires a right to do it: rred is not merely a permission; it 2 Bouv. And it is said that party, obtaining a license in such case the autliorit amounts to a grant, and it maybe assigned to a third person. 2 Bouv. Inst. 568.

It is not indispensable to the condition of such a license that the right or title to the property sought to be removed should have been derived from the licenser. The license to enter on tlie land and remove the property is a license coupled with an interest, and so assignable and irrevocable, if the licensee's right to the possession of the property is derived from another source, provided the party granting the license has assented to the contract or other condition of things whereby the licensee gains the title or the right to the possession of the property. And such assent may be inferred from the duty of the licenser to recognize the contract or circumstances from which the other party’s right is derived. A person cannot justify entering the close of another to take his own property, without showing the circumstances under which it came there, even though he alleges he did not do any unnecessary damage,—Anthony v. Haneys, 8 Bing. 186; 2 Selw. N. P. 1342; “ but,” says Baron Parke, “ all tho old authorities say that where a party places upon his own close the goods of another, he gives to the owner of them an implied license to enter for the purpose of recaption.” Patrick v. Colerick, 3 M. & W. 483; Mussey v. Scott, 32 Vt. 84.

Here, Gilchrist gained his title to the possession and control of the property from the United States. To that possession, right, and control the plaintiff expressly assented. And so Gilchrist acquired a license coupled with an interest, although the interest and title were not derived from the plaintiff. And as instances of the effect of a license, Vaughan, C. J., in Thomas v. Sorrell, Vaughan Rep. 331, says, — “ A dispensation or license properly passetli no interest, nor 'alters nor transfers property in anything, but only makes an action lawful which, without it, had been unlawful: as a license to go beyond the seas, to hunt in a man’s park, to come into his house, are only actions which, without license, had been unlawful. But a license to hunt in a man’s park, and carry' away deer killed to his own use ; to cut down a tree in a man’s ground, and carry it away the next day after to his own use, — are licenses as to the acts of hunting and cutting down the tree; but as to the carrying away the deer killed and tree cut down, they are grants. So, to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the .actions of eating, firing my wood, and warming him, they are licenses ; but it is consequent necessarily to those actions that my property may be destroyed in the meat eaten and in the wood burnt. So, as in some cases by consequent, and not directly and as its effect, a dispensation or license máy destroy and alter my property.”

And Baron Alderson,in Wood v. Leadbitter, 13 M. & W. 843, says,—“A mere license is revocable; but that which is called a license is often something more than a license; it often comprises or is connected with-a grant, and then the party who has given it cannot, in general, revoke it so as to defeat his grant, to which it was incident.”

In Wood v. Manley, 11 Ad. & E. 34, it appeared that goods which were upon the plaintiff’s land were sold to the defendant, and that by the conditions of the sale, to which the plaintiff was a party, the buyer was to be allowed to enter and take the goods. It was held that, after the sale, the plaintiff could not countermand the license. And the defendant having entered to take, and the plaintiff having brought trespass, and the defendant having pleaded leave and license and a peaceable entry to take, to which the plaintiff replied de injuria, — it was held that the defendant was entitled to the verdict, though it appeared that the plaintiff had, between the sale and the entry, locked the gates and forbidden the defendant to enter; and the defendant had broken down the gates, and entered to take the goods, “ the plaintiff,” as was said by Williams, J., “ having assented to the terms of the contract, put himself into a situation from which he could not withdraw.”

It is not necessary, as before remarked, that an authority in law to enter into the post-office and take the public property, by an agent of the government duly authorized for that purpose, should be shown, or presumed, from the circumstances of the case, although perhaps such authority and right, and the means of exercising it, would be a fair legal conclusion. The assent, license, and permission to enter and take the goods is express in this case ; and if the authority of a purchaser of goods from the vendor, having license to enter and remove them, becomes an authority coupled with an interest irrevocable and assignable, a fortiori, it would seem that a license freely given by the party who never had any property in the goods, and whose right to the possession had been terminated by his removal from office, — a license given to his successor in office, entitled by law to the possession of the property, — could not be regarded as a license of more restricted character. Under the defendant’s plea, he may prove a license in law or in fact, express or implied. 4 Bouv. Inst. 57.

Moreover, the pleas allege no revocation, in terms nor by implication, of the license to Gilchrist; and we have seen that such license, by necessary consequence, implies a license to employ such agents, servants, and assistance as may be requisite to make the license effectual.

If it be said that the licenser may'reasonably object to the entry and removal of goods by such a servant of the licensee as may happen to be personally obnoxious for any reason to the former, it is sufficient to say that no such objection is suggested by the pleadings; and on demurrer, such excuse for an attempted revocation is not open to the plaintiff. If the plaintiff relied upon such grounds, the defendant having pleaded a license, coextensive with all the allegations of trespass, the plaintiff was bound to answer by replication or new assignment, or else stand concluded by his demurrer. 1 Chitty Pl. *624-687, passim.

Another important consideration is suggested by the pleadings. It is shown that “ when the defendant arrived at said post-office building as aforesaid, and during all the time when he was in and about said building and room, as is hereinafter set forth, said Gilchrist was in and about said building and room for the purpose, and was engaged in the work and business, of taking away and removin gsaid furniture, articles, and things as aforesaid.”

So that it would seem that when the defendant entered the building, the plaintiff, regardful as well of his duty as his license, had abandoned the possession and control of the goods to Gilchrist, and that ttxe license therefore bad been substantially executed ; and a license executed is not couutermandable. Liggins v. Ince, 7 Bing. 682.

But'the first count in the plaintiff’s declaration is an action of trespass quare clausum, and the gist of it lies in the injury to the possession — Brown v. Manter, 22 N. H. 472—the subsequent assault, if unjustifiable, being mere matter of aggravation. Brown v. Manter, ante; Chellis v. Stearns, 22 N. H. 315; Ferrin v. Simonds, 11 N. H. 363; Taylor v. Cole, 3 Term. 292. And if the right of entry is shown, the action, so far as it rests upon the first count, fails entirely, and* the plaintiff cannot recover upon proof of the subsequent assault merely.

Where the authority or license to enter and do certain things is given by the party, there, although the person to whom the authority is given may, by the commission of subsequent acts, be a trespasser, yet such subsequent acts will not affect the original entry so as to make that which was sanctioned by the party complaining a trespass; but the subsequent acts only will amount to trespasses. 2 Selw. N. P. 1342; Wendell v. Johnson, 8 N. H. 220.

In Kingsbury v. Pond, 3 N. H. 513, it is said to be “ a well settled principle of law that, in trespass quare clausum fregit, a justification of the entry will cover the whole declaration,” the court in this case adopting the argument of Ch. J. Parker, who cited 1 Str. 61—Yelv. 126; 2 Salk. 642 ; and the court cited Taylor v. Cole, ante.

A person entering by license of the party may so abuse that license as to make himself liable for that abuse by some appropriate action, — as, for example, if the license in this case had extended only to permission to enter without the right to remove the goods, the party might have been liable in trespass de bonis for the removal of the goods; or, if necessary force and aggression were employed, he might be held liable in trespass for an assault; but in neither case would he be liable in trespass quare clausum. Sampson v. Henry, 13 Pick. 36; Mugford v. Richardson, 6 Allen 76; Winter v. Stevens, 9 Allen 526, 530; Merriam v. Willis, 10 Allen 118. In Taylor v. Cole, Mr. Justice Buller says : “ The first count is for breaking, entering, and expelling; the plea only justifies the breaking and entering, showing a good cause for it: and that is a full answer to the first count; for the breaking and entering are the gist of the action, and the expulsion is only matter of aggravation. If the plaintiff had wished to take advantage of the expulsion, he should have shown the special matter in a new assignment, for, according to the Six Carpenters’ case, he should show in reply that which makes the party a trespasser ab initio.

The pleadings disclose yet another answer to the plaintiff’s claim.

It appears that the building and room which the defendant entered was a building which, though connected with the plaintiff’s dwelling-house by a side door, had also a separate outside door which was ordinarily used for passage into and out of- said office. It was at this door, and no other, that the defendant applied for admission, and entered. “ Said building and room were then and there being used, solely and exclusively, for the purposes and business of said post-office, and always bad been so used since the erection of said building.” In the second, seventh, and tenth pleas it is alleged that “ when the defendant first arrived at said door of said post-office building as aforesaid, and immediately before said assaulting, beating, and illtreating of him by the plaintiff and his said wife, he notified and informed the plaintiff' and his said wife that he came there with and for the purpose of getting and obtaining any mail-matter which might then and there be in said post-office for him, said defendant.”

The demurrer admits the defendant’s declaration of purpose and intent, and the truth of it.

Is not this a complete answer to the charge of breaking and entering ? If such facts do not warrant the conclusion of law that the party might lawfully, and against the consent of the plaintiff, enter the building for the purpose indicated, can there be any doubt that they-furnish abundant evidence of an implied license by the party, — a license coupled with an interest and not revocable ?

We think the public would be surprised to learn that any citizen has not a right to enter the post-office at all seasonable hours, and in a peaceable manner, for the purpose of getting his mail-matter.

If a man may justify entering into an inn or public house without the leave of tha.owner first specially asked, because, when a man professes the keeping of such inn or public house, he thereby gives a general license to any person to enter his doors — 3 Bl. Com. 212; Markham v. Brown, 8 N. H. 523;—if a man who keeps a store for the sale of merchandise is presumed to license all persons to enter who come there for lawful purposes; — if the same presumption arises in all cases where a person expects or invites persons to come and deal with him, let his business be what it may — 2 Bouv. Inst. 568, — much more may •any person justify his entrance into the place appointed and provided by the government, at the public expense, and without charge to the citizen, for the transaction of all business connected with the postal service of the country.

Upon the case presented by the pleadings, it would seem to be unnecessary to pass upon the main question considered by counsel in argument ; but as the suggestions presented to our view may become of practical importance upon a future trial of the cause, we have considered them, and are prepared to express the opinion of the court upon the case in the aspect in which it has been mainly regarded in the argument.

The defendant contends that, independent of any express or implied license to himself or his superior, he had the right to enter the post-office by force, if -necessary, and against the will of the plaintiff, for the purpose of removing the public property, to the custody of which he was entitled virtn.de, officii, and to resist by force sufficient for the purpose the effort of the plaintiff and his wife to prevent the acquisition of the property. •’

If the defendant is unquestionably entitled to the immediate possession of the public property, and the plaintiff retains that possession without pretence of right, as in this case, must the defendant resort to legal process and submit to its inevitable delay and expense ? or may he, by summary proceeding, without unnecessary force, assert his rights, and, by entry upon the premises of the plaintiff, take possession of the property wrongfully witliholden from him ?

It is said that the law do.es not permit a man to assert his own rights or to redress his own wrongs by force, — and as a general principle the proposition is sound and wholesome; but we think it is not always to be asserted and maintained, rigorously and without qualification.

The relative positions of the plaintiff add Gilchrist, or the defendant, I his servant, were not those of landlord and tenant at the period of the expiration of the tenancy, but it was so far similar that a strong analogy is presented between the form and substance of the defendant’s pleas in this case and the plea of liberum tenementum, which gives the plaintiff apparent color. This plea, like that, admits a sufficient possession in the plaintiff to support an action against a wrong-doer, but denies the plaintiff’s rightful possession as against the defendant, and asserts a right in the defendant to immediate entry and possession for the purpose of taking the goods, to the possession of which the defendant was entitled. 2 Saund. Pl. & Ev. 1101; Steph. Pl. 316; Doe v. Wright, 10 Ad. & E. 763.

It is clearly the English law, and, as we believe, the strongly preponderating opinion of the American coiirts, that no civil action lies against a landlord for regaining with forc'e the possession of the ‘ demised premises, unless there is an excess of force, and then only for such excess.

It has been remarked that “A tenant whose right to possession is determined either by the expiration of his term, by forfeiture, or by notice to quit, and who is therefore a tenant at sufferance, and himself a wrong-doer, may yet treat his lessor, who is entitled to immediate possession, as a trespasser, and, relying on his right, maintain trespass quare clausum against him, merely because the right of the latter has been forcibly asserted, seems so extraordinary a proposition, that if not warranted by express words of the statutes, nothing but the clearest implication from their language could justify it; and, as the removal of the tenant upon or after entry is but a part of the act of entry, and depends on the legality of the possession thereby gained for its justification, the action for assault or for removal of the tenant’s goods must stand or fall with the action of trespass quare clausum." 4 Am. Law Rev. 430.

. The statutes of forcible entry and detainer in England, and in those of the United States where they still prevail, invariably specify the penalty incurred ; and these statutes, and proceedings under them, in no way affect the civil character of the act of forcible entry, nor is any civil or common law liability to be implied from them.

In Turner v. Meymott, 1 Bing. 158, where the landlord, on the determination of a tenancy at will, broke into the house with a crow-bar— the tenant being absent, but having left furniture in the house, and resumed possession — the court said, — “ It must be admitted that [the landlord] had a right to take possession in some way. If he had used force, that is an offence in itself, but an offence against the public for which, if he has done wrong, he may be indicted.” And the court set aside the verdict against the landlord in the action of trespass guare clausum.

This case is indorsed and approved in Mussey v. Scott, 32 Vt. 84, where Bennett, J., says, — “ In the case of personal property, the party injured may have redress by his mere act, by what is termed recaption, though this must not be done in a riotous manner, or attended with a breach of the peace.”

In Tayler v. Cole, 3 T. R. 292, the principle seems to be clearly intimated, if not in terms expressed, that a legal possession can be acquired by an entry, though made with such force as to be punishable under the statutes of forcible entry and detainer. In delivering the opinion of the court, Lord Kenyon said, — “ It is true that persons having only a right, are not to assert that right by force; if any violence be used, it becomes the subject of a criminal prosecution; and that is the amount of the case cited from Shower, which was a proceeding under the statute for a forcible entry. (The case referred to is Rex v. Deane, 2 Show. 85.) But this is not a criminal prosecution ; and the question is, whether a person having a right of possession, may not peaceably assert it, if he do not transgress the laws of his country. I think he may; for a person who has a right of entry may enter peaceably, and being in possession, may retain it, and plead that it is his soil and freehold.” And in the same case, Judge Ashuest, a “ careful expounder of the law,” said, — “ No person who has a right of enti'y into lands can be considered as a trespasser for asserting that right, unless it be attended with such acts of violence as will subject him to a criminal prosecution.”