or by some license or permission so to do. The plaintiff's absence will not excuse him. Reasonable cause to believe, and actual belief that the plaintiff and his family did not intend to return, are no defence. The only question is, whether the ruling of the Court below was correct, that "the mere fact that his goods were in said premises under the circumstances stated" did not furnish a sufficient ground from which a license, permission or legal right could be inferred. In the decision of this question, we must assume that the defendant's claim would have been sustained, that his title, as mortgagee of all the property taken away by him, was valid, and his mortgage debt unpaid. He had a right then to the possession of the property which he took. But the possession of the plaintiff, as mortgagor, was not wrongful. The goods were rightfully upon his premises. . . . The goods then were rightfully in the custody of the plaintiff, and within his close. The defendant was the owner of the legal title, with a present right of possession. Does that alone justify him in a breach of the plaintiff's close? A majority of the Court are of opinion that it does not. ... 1. One whose goods are stolen, or otherwise illegally taken from him, may pursue and retake them wherever they may be found. No one can deprive him of this right, by wrongfully placing them upon his own close. Patrick v. Colerick, 3 M. & W. 483; Webb v. Beavan, 6 M. & G. 1055, and note; Comyns Digest, Trespass, D, citing 2 Rol. Abr. 565, 1. 54; Bacon Abr. Trespass, F 1. But if they are disposed upon the land of another, who is not participant in the wrongful taking, the owner cannot enter upon his land to retake them; unless in case of theft, and fresh pursuit. 20 Viner Abr. 506, Trespass, H, a, pl. 4, 5. So, from the necessity of the case, one whose cattle escape upon the land of another may follow and drive them back, without being a trespasser, unless the escape itself was a trespass. Comyns Digest, Trespass, D, citing 2 Rol. Abr. 565, 1. 35. In these cases, the law gives the party a right to enter for that particular purpose. 2. In other cases a right or license to enter upon land results, or may be inferred, from the contracts of the parties in relation to personalty. Permission to keep, or the right to have one's personal property upon the land of another, involves the right to enter for its removal. Doty v. Gorham, 5 Pick. 487; Bac. Abr. Trespass F, 1; White v. Elwell, 48 Maine, 360. A sale of chattels, which are at the time upon the land of the seller, will authorize an entry upon the land to remove, if, by the express or implied terms of the sale, that is the place where the purchaser is to take them. Wood v. Manley, 11 Ad. & El. 34; Nettleton v. Sikes, 8 Met. 34; Giles v. Simonds, 15 Gray, 441; Drake v. Wells, 11 Allen 141; McNeal v. Emerson, 15 Gray 384. A license is implied, because it is necessary in order to carry the sale into complete effect. . . . But there is no such inference to be drawn, when the property, at the time of sale, is not upon the seller's premises; or when, by the terms of the contract, it is to be delivered elsewhere. We think the authorities cited illustrate and establish these distinctions. . . . In the note to Webb v. Beavan, 6 M. & G. 1055, is a citation from the books, 9 Edw. IV. 35, in which Littleton, J., after laying down the doctrine that a man may enter the close of another to retake his own goods, wrongfully put there, is reported to have said: "But it is otherwise if I bail goods to a man. I cannot enter his house and take the goods, for they did not come there by wrong, but by the act of us both.' 3. A right to enter the premises of the mortgagor, without legal process, is not essential to the security of the mortgagee of personal property. Permission to do so is not implied, therefore, from the existence of that relation alone. . . The burden was upon the defendant to establish the special right which he set up in justification of his entry. At the trial, he based his right to enter solely upon his title to the personal property, and the supposed abandonment of the premises by the plaintiff; and asked the Court to rule that that was sufficient. The Court held it to be insufficient "without some license or permission from the plaintiff, express or implied." . . . A majority of the Court are of opinion that the facts reported in this case are not sufficient to sustain the justification relied on by the defendant, and that the instructions upon that point were correct. If the defendant established his title to the property taken away, he would of course be liable only for such injury as he did to the plaintiff's house. But no question appears to be raised as to the measure of damages, and we are to presume that proper instructions upon that point were given.1 1 [PROBLEMS: Exceptions overruled. The plaintiff was unlawfully hunting on the defendant's land and killed some rabbits. The defendant's servants came up to him as he was taking them off, and demanded them. On the plaintiff's refusal, the defendant's servants took the rabbits from him, with no more than necessary force. Is the defendant liable? (1861, Blades v. Higgs, 30 L. J. C. P. 347.) The plaintiff was bookkeeper to the defendant, who had recently withheld from the plaintiff's salary payment a sum of money the loss of which was blamed on the plaintiff. Later, the defendant handed the plaintiff money to pay the hands, and the plaintiff took out of it the sum which had been withheld from him, and handed the rest back and stated that he was going to leave. The defendant seized him and a struggle ensued. Is the defendant liable for this battery? (1891, Kirby v. Foster, 17 R. I. 437, 22 Atl. 1111.) The plaintiff's dog had repeatedly killed the defendant's hens and rabbits. The defendant then killed the dog. Was this justifiable? (1897, Harris v. Eaton, 20 R. I. 81, 37 Atl. 308.) The plaintiff's minks were swimming across the brook to the defendant's premises, with intent to kill the defendant's geese. The defendant's partner came out towards the bank, on which were the geese, and as soon as the minks saw him, they stopped and turned aside to a little island in the brook. The defendant then came out with his gun, and shot at the minks on the island, killing them all. It did not appear that the minks had ever pursued these geese before, or that minks were reputed to have a special tendency to pursue and kill geese. Was the defendant justified? (1873, Aldrich v. Wright, 53 N. H. 398.) The defendant, in an action for killing the plaintiff's dog, pleaded that the Topic 4. Defence of Realty SUB-TOPIC A. BY BATTERY 585. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, p. 429.) "Trespass" (G, 1). (1) A man may justify the battery of another, in defence of his possession. Trin. 3 Jac. B. demurred in law. (2) If a man comes into the forest in the night, the forester cannot beat him before resistance made by him. Mich. 14 Jac. in the Star Chamber, resolved by the chancellor and judges in Hastock's case, and Hastock had recovery against him at the common law in action of battery. (3) But if the party, who comes so into the forest, resists the forester, he may justify the battery of him, as was agreed in the case aforesaid. The statute of malefactors in parks, of 21, gives as much. (4) A man cannot justify a wounding in preservation of his possession. P. 12 Ja. B. R. between Butler and Austin; per Curiam. . . ... (7) If a man enters into my close, and there with an iron sledge and bar breaks and displaces my stones there being in the land, being my chattles, and I require him to desist, and he refuses, and speaks threatening words, if I shall approach to him, and upon this I, to keep him that he shall not do more damage to the stones, not daring to approach him, cast some stones at him molliter & molli manu, and they lay upon him molliter, yet this is not good justification; dog had on that day come upon his land and killed hens, and shortly after had returned and was running towards the hen-house, and the defendant killed it in the reasonable belief that it was about to kill other hens. Was this plea good? (1886, Livermore v. Batchelder, 141 Mass. 179.) The defendant, on raising the anchor of his vessel, found it to be entangled in the plaintiff's submarine cable. To save the anchor, he cut the cable. Was he justified? (1900, The Wm. H. Bailey, 100 Fed. 115.) Samuel Butler. "Hudibras" (1663-1678). [Hudibras consults a lawyer.] Quoth he, there is one Sidrophel Whom I have cudgell'd - "Very well.". And now he brags t' have beaten me. And vows to stick me to the wall Where'er he meets me "Best of all.". "Dogs: when trespassing dogs may be killed." (C. L. R., VIII, 147.)] for the judges said that a man cannot cast stones molliter, though it was confessed by a demurrer; and it would be perilous there to give liberty to a man to cast stones out of his hand in defence of his posession; for when a stone is cast out of the hand, he cannot guide it; and a justification of battery in defence of possession, though it arises from the possession, yet the conclusion is in defence of the person. P. 10 Car. B. R., between Cole and Maunder adjudged upon deIntratur H. 10 Car. Rot. 502. murrer. 586. BUTLER v. AUSTEN KING'S BENCH. 1615. Rolle Rep. pl. 20 EN battery, wounding ne poet estre justifie en defence del' possession d'un. Butler port action pur batterie & wounding de son servant per que il perde son service vers questen; defendant plede que il fuit possesse del' un close en S. & le dit servant entre sur luy, & issint justifie le batterie & wounding en preservation de son possession, & per CURIAM fuit adjudge que wounding n'est justifiable pur preservation del' possession come 21 H. 6, 26, est. Mes poet molliter manus imponere, DODDRIDGE, 9 E. IV, batterie est justifiable pur ceo. COKE: home poet justifie wounding en defence de son person. TRESPASS, assault, and battery laid on the first of October, 3 Reg. The defendant, as to the vi & armis, pleaded non cul. And as to the residue says, that long before, viz. on the 13th of September, a stranger's bull had broke into his close, that he was driving him out to put him in the pound, and the plaintiff came into the said close & manu forti impedivit istum ac taurum praedictum, rescussisse voluit, & quod ad praeveniendum &c. ipse idem defendens parvum flagellum super querentem molliter imposuit, quod est idem residuum, &c., absque hoc quod cul. fuit ad aliquod tempus ante eundem 13 diem. The plaintiff demurred. Mr. Eyre for the plaintiff argued, that they should have requested him to go out of the close. . . . Et per CURIAM: There is a force in law, as in every trespass quare clausum fregit, as if one enters into my ground; in that case the owner must request him to depart before he can lay hands on him to turn him out; for every impositio manuum is an assault and battery, which cannot be justified upon the account of breaking the close in law, without a request. The other is an actual force, as in burglary, as breaking open a door or gate; and in that case it is lawful to oppose force to force; and if one breaks down the gate, or comes into my close vi & armis, I need not request him to be gone, but may lay hands on him immediately, for returning violence with violence; so if one comes forcibly and takes away my goods I may oppose him without any more ado, for there is no time to make a request. 2dly, POWELL, J. held, that the attempt to take and rescue the bull was an assault on his person, and a taking from his person; for if H. is driving cattle on the highway, and one comes and takes them from him it is robbery, which cannot be without a taking from his person; quod non fuit negatum. Sed adjournatur. Mr. Eyre pro quer. Mr. Brydges pro def. 588. SCHEUERMANN v. SCHARFENBERG SUPREME COURT OF ALABAMA. 1909 163 Ala. 337, 50 So. 335 [Printed post, as No. 717; Point 2 of the opinion.] SUB-TOPIC B. BY TRESPASS TO PERSONALTY 589. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XX, pp. 515, 516.) "Trespass." 15. In trespass for chasing of his beasts, it is good justification that the beasts were in his close damage feasant, and he with a little dog chased them out of the land; for, inasmuch as they come there of their wrong, the owner is not bound to impound them, but may remove the tort done him, by chasing of them out of the land. Co. 4. Terringham, 38. b. resolved. 17. If a man comes into my close with an iron-bar and sledge, and there breaks my stones, and after departs, and leaves the sledge and bar in my close, in an action of trespass for taking and carrying of them away, I may justify the taking of them and putting of them in the close of the plaintiff himself next adjoining, especially giving notice of it to the plaintiff, as it was pleaded; inasmuch as they were brought into my close of his own tort, and in such case of tort I am not bound to carry them to the pound, but may well remove the wrong done to myself by them by tort of the plaintiff. P. 11 Car. B. R., between Cole and Maunder, adjudged upon a demurrer. Intratur, Hill. 10 Rot. 502. 590. MCGONIGLE v. BELLEISLE COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 186 Mass. 310, 71 N. E. 569 1904 LATHROP, J. This is an action of tort in three counts. The first count is for breaking and entering the plaintiffs' close, the second for the conversion of money and goods, and the third for the use of excessive force in removing the plaintiffs. The jury returned a verdict for |