TRESPASS AB INITIO
RESEARCH PROJECT SUBMITTED IN PARTIAL FULFILMENT OF THE COURSE LAW OF
TORTS
SUBMITTED TO – PROF. SUSHMITA SINGH
SUBMITTED BY – MR. ANURAG CHAUHAN
ROLL NO. – 1918
BA LLB
DECLARATION
I hereby declare that the Project Report titled “Trespass ab initio”, submitted to Prof. Sushmita
Singh at Chanakya National Law University, in partial fulfillment of the course Law of Torts, is
my original work and has not been submitted anywhere else, in any meaning or format.
Anurag Singh Chauhan
1918
TABLE OF CONTENTS
ACKNOWLEDGEMENT .............................................................................................................. 1
RESEARCH METHODOLOGY.................................................................................................... 2
INTRODUCTION .......................................................................................................................... 3
TRESPASS AB INITIO – THE CONCEPT .................................................................................. 5
HISTORY OF THE RULE ........................................................................................................... 10
LIMITS AND SCOPE OF THE RULE ........................................................................................ 13
LANDMARK JUDGEMENTS .................................................................................................... 15
CONCLUSION ............................................................................................................................. 18
BIBLIOGRAPHY ......................................................................................................................... 20
ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to my guide and
professor Sushmita Singh for her exemplary guidance, monitoring and constant encouragement
throughout the course of this thesis. The blessing, help and guidance given by her time to time
shall carry me a long way in the journey of life on which I am about to embark.
I am obliged to staff members of Chanakya National Law University, for the valuable
information provided by them in their respective fields. I am grateful for their cooperation during
the period of my assignment.
Lastly, I thank Almighty and my parents, brother, sisters and friends for their constant
encouragement without which this assignment would not be possible.
Anurag Singh Chauhan
1
RESEARCH METHODOLOGY
METHOD OF RESEARCH
In this study secondary sources have been used, Secondary data have been collected from
various books, research papers and articles.
This research work follows a descriptive style of research
AIMS AND OBJECTIVES

To study the concept of Trespass ab Initio

To analyse the limits and scope of the rule.

To analyse the landmark cases regarding trespass ab initio
SCOPE AND HYPOTHESIS
The scope of this project is vastly limited due to paucity of time and scarcity of resources.
The Hypothesis for this project is –
There is no longer a need to retain the old rule of trespass ab initio.
2
INTRODUCTION
Trespass ab initio is a form of trespass. The term trespass refers to an act of intrusion into
another person’s property. Ab initio is a Latin term meaning, “from the beginning.” A person is
said to have committed trespass ab initio, when s/he has abused the authority granted by law to
enter a property or land.
Trespass ab initio is a doctrine developed by early common law. Accordingly, a person who
enters a land in exercise of his/her duty authorized by law is said to have comitted trespass to
land, or property when s/he abuses the power conferred upon him/her by causing damage to the
property. The person will be held liable not only for his/her misconduct but also for the lawful
entry into the land. Thus, in a trespass ab initio claim, the lawful entry will be considered as
trespass, because the privilege is abused and harm is caused to another person’s legal interest.
Conditions constituting trespass ab initio are:
1. the authority abused must be an authority granted by law and not by an individual1;
2. there must be some positive act of misconduct, and not a mere omission or neglect of duty2
A person authorized by law will be held liable for the tortuous act, if s/he has misused the
privilege to enter another person’s legally protected property3. Trespass ab initio occurs when
any unnecessary or unreasonable act which is caused deliberately to harm another person’s
interest. Also it occurs when the authorized person fails to take reasonable care to prevent an
unreasonable harm to the legally protected interest of another4.
In some cases, a person can delegate his/her privilege to a third party to enter another person’s
land. In such case, the person delegating the privilege will be held liable for any abuse of power
1
Sheftall v. Zipperer, 133 Ga. 488 (Ga. 1909).
Louisville & N. R. Co. v. Bartee, 204 Ala. 539 (Ala. 1920).
3
Brite v. Pfeil, 334 S.W.2d 596 (Tex. Civ. App. San Antonio 1960).
4
Id.
2
3
by the third party5. Trespass ab intio also extends to harmful acts caused to chattels. However a
person who holds the privilege will not be held liable for harmful acts caused accidentally6.
Currently, a person who is found guilty of trespass ab initio is liable for punitive damages. This
rule came in effect after the tort law started recognizing punitive damage7.
In McGuire v. United States, 273 U.S. 95 (U.S. 1927), a search warrant was issued to revenue
agent officers to enter and search the premises possessed by Mcguire. The officers acting under
the warrant searched the premises discovering several gallons of intoxicating liquor which they
seized. They destroyed the liquor without the court order or other legal authority except one
quart of whisky, which they retained as evidence. The court held that the officers by destroying
the seized liquor became trespassers ab initio. Thus, they lost the protection and authority
conferred upon them by the search warrant. However, the court ruled that the sample of liquor
can be used as evidence.
5
Tubbs v. Tukey, 57 Mass. 438 (Mass. 1849).
Id.
7
Gibson v. Holmes, 78 Vt. 110 (Vt. 1905).
6
4
TRESPASS AB INITIO – THE CONCEPT
If possession is taken of property, or an entry is made thereon, under authority of law, and which
would be a trespass in the absence of such authority, a subsequent abuse of the authority is said
to render the doer of the act a trespasser ab initio; that is to say, a trespasser from -the
beginning.8
The elements that must in fact concur to make one liable as a trespasser ab initio are these:
(1) there must be an act which upon general principle is a trespass;
(2) the act must be privileged in law; and
(3) there must be an abuse of that privilege such that the law will withdraw its protection.9
The original act must have been a trespass but for the justification, and the subsequent act must
be an act of trespass, not a mere nonfeasance, such as a failure to pay for the wine which had
been served to one at an inn; an assault, however, on the innkeeper, after lawful entry, would
make the offender a trespasser ab initio.
Instances where one is held liable as a trespasser ab initio are the following: an officer who, after
lawful attachment, puts an intoxicated man in as keeper of the attached property; 10 one who, after
lawfully cutting grass in a highway, unlawfully feeds it to his horse,11 an officer, and also a
creditor, who works a horse seized under an attachment;" one failing to feed and water cattle
after lawfully impounding them;12 one selling the whole of a chattel under a process which was
against one only of several co owners of the chattel.13 Where the authority is from the plaintiff,
as a license to enter a house, and not under an authority conferred by law, the abuse of the
authority or liense does not make one a trespasser ab initio.14
8
Malcom v. Spoor, 12 Met. 279 (Mars.),
The Path of the Law, 10 Harvard Law Review 457, at 469.
10
Six Carpenters' Case, 8 Coke 146 (Eng.).
11
Markham v. Brown, 8 N. H. 523.
12
Malcom v. Spoor, 12 Met. 279 (Mass.),
13
Cole v. Drew, 44 Vt. 49.
14
Lamb v. Day & Peck, 8 Vt. 407.
9
5
When entry, authority or license, is given to any one by law and he abuses it, he becomes a
trespasser ab initio, that is, the authority or justification is not only determined, but treated as if it
had never existed. His misconduct relates back so as to make his original act tortuous. The rule
rests upon this—that the subsequent illegality shows the party to have contemplated an illegality
all along so that the whole becomes a trespass. In Chick Fashions (West Wales) Ltd. v. Jones,15
Lord Denning, M.R. and Salmon, L.J. have expressed doubt whether today a man can be made a
trespasser ab initio by the doctrine of relation back. But in Cinnamond v. British Airports
Authority,16 Lord Denning, M.R. referred to the doctrine with approval.
In the leading case of Six Carpenters17it is said:
"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 But if he who enters into the
inn or tavern doth a trespass, as if he carries away any thing; or if the lord who distrains for
rent, or the owner for damage feasant, works or kills the distress; or if 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 trespasser ab initio."
Where authority is not given by law, but by the party, and abused, then the person abusing such
authority is not a trespasser ab initio. The reason of the difference being that, in the case of a
general authority, or license of law, the law adjudges by the subsequent act the intention with
which the trespasser entered; but when the party gives an authority or licence himself to do
anything, he cannot, for any subsequent cause, punish that which is done by his own authority or
license. Besides, when the authority is conferred by an individual it can be limited or recalled at
will, whereas the rights given by law require to be strictly protected.
The act by which a person is to be deemed a trespasser ab initio must of itself be a trespass.18
15
(1968) 2 QB 299 : (1968) 1 AllER 229 : (1968) 2 WLR 201.
(1980) 2 AllER 368 (CA) p. 373.
17
Smith’s Leading Cases, Vol I, 13th edition, p. 134. Referred to in Cinnamond v. British Airports Authority, (1980)
2 AllER 368 p. 373(CA)
16
6
The leading case of Six Carpenters19lays down three points—
(1) That if a man abuse an authority given to him by law, he becomes a trespasser ab initio.
(2) That in an act ion of trespass, if the authority be pleaded, the subsequent abuse may be
replied.
(3) That a mere non-feasance does not account to such an abuse as renders a man trespasser ab
initio.
The Calcutta High Court has held that where there is an authority given by law for doing an act,
then an abuse may (not necessarily must) turn the act into a trespass ab initio. If a police officer,
whilst lawfully conducting a search, assaults some person on the premises’ his entry on the
premises does not necessarily become unlawful from the outset.20 Similarly if police officers
enter the premises for a lawful arrest and afterwards seize books, papers, and money which could
not be lawfully seized, they do not become trespassers ab initio.21
Refusal to pay for wine in tavern .—In the Six Carpenters’ case, six carpenters entered a tavern,
"and did there buy and drink a quart of wine, and then paid for the same." They then gave a
further order for another "quart of wine and a pennyworth of bread, amounting to 8 pounds."
This order was also fulfilled, but for the second supply the men refused to pay. The question was
whether this non-payment made their original entry into the tavern unlawful. The court held that
the men did not become trespasser ab initio, because there was a mere non-feasance in refusing
to pay.22
But as already seen, the case lays down the basic principle that when an entry, authority or
license is given to anyone by the law, and he abuses it, he shall be a trespasser ab initio from the
very beginning.
18
Shortland v. Govett, (1826) 5 B&C 485.
(1610) 8 Coke 146a : 1 Sm L.C. 134.
20
Brojendra Kissore Ray Choudhuri v. M.A. Luffeman, (1908) 12 CWN 982
21
Candian Pacific Wine Co. v. Tuley, (1921) 2 AC 417.
22
Six Carpenters’ case (1610) 1 Sm LC 134.
19
7
This principle of Six Carpenters’ case was applied in Cinnamond v. British Airport Authority23
which was a case relating to six car-hire drivers. The car drivers had their own cars. They often
went to the London Heathrow Airport. They were in touch with hotels in Central London. When
a passenger wanted a car to take him to the Airport, the hotel telephoned one of these car-drivers
and he took the passenger to the Airport. These car-drivers hung about the Airport and sought to
get passengers to hire them for the drive back to London. They thus got ahead of the licensed
taxi drivers who are in the feeder parks waiting to be hired.
Lord Denning on these facts observed:
"When one of these car-hire drivers picks up a passenger at a London hotel and drives to the
Airport, he has a right to enter so as to drop the passenger and luggage. But the driver has no
right whatever to hang about there so as to ‘tout’ for a return fare. By so doing he is abusing the
right which is given to him by the law, and that automatically makes him a trespasser from the
beginning."24
In another case, In order to effect the arrest of a person, the defendants, police-officers, entered
the plaintiff’s premises. While there they seized and carried away documents found on the
premises. Amongst the documents there were some which constituted evidence on the trial of the
person arrested but there were others which did not so constitute and were subsequently returned.
In an action for trespass it was held that the defendants were only trespassers ab initio as to the
documents that were seized and returned, but were not liable for any damages in respect to the
entry on the premises for the purpose of arrest.25
In another case it was held that where a constable entered a house by virtue of a search warrant
for stolen goods, he could seize not only the goods which he reasonably believed to be covered
by the warrant but also any other goods which he believed on reasonable grounds to have been
stolen and to be material evidence on a charge of stealing or receiving against the person in
possession of them or anyone associated with him.26
23
(1980) 1 WLR 582.
Smith v. Egginton, (1837) 7 Ad&El 167(1837) 7 Ad&El 167.
25
Elias v. Pasmore, (1934) 2 KB 164.
26
Ibid.
24
8
The rule is primarily one of procedure, the effect of it the rule under the old practice being that a
writ of trespass would lie for the entry or seizure itself, instead of a writ of trespass or of case for
the subsequent abuse only. In this respect the rule has now lost its significance, but its secondary
effect upon the substantive law still remains, viz., that it enables the plaintiff to recover damages
for the entire transaction, and not merely for the wrongful portion of it. If for example, the
defendant rightfully seizes the plaintiff's horse damage feasant, but subsequently injures or sells
it, he is liable in damages for the seizure itself in an action which under the old practice would
have been trespass de bonis asportatis. It is to be regretted that a legal fiction due to the
misplaced ingenuity of some medieval pleader should have thus succeeded in maintaining its
existence and oppressive operation in modern law. It has been abolished by statute in the case of
distress for rent and in certain other instances, but it ought to be wholly eliminated from the law.
9
HISTORY OF THE RULE
The fiction of trespass ab initio had its origin in the ancient law of distress. 27 It looks like one of
the many restrictions on the privileges of self-help, which were the bane of primitive law. The
early development of the fiction seems to have been confined almost wholly to the abuse of such
privilege.28 Thus, the doctrine of trespass ab initio was invoked where cattle were seized damage
feasant, where a reversioner entered to see if the tenant in possession was committing waste,
where a commoner entered to see his cattle,29 or where one entered on another's land to hunt
ravenous beasts of prey.30
Furthermore, as long as procedure was the life-blood of law, this fiction served to overcome
certain procedural difficulties which tended to obstruct the administration of justice in particular
cases.31 And finally, in the absence of a law of evidence, this doctrine provided a crude rule of
thumb by which to determine a man's intention32 at a time when it was believed that "the thought
of man is not triable.
Always jealous of the growth of the executive power and careful to provide remedies for abuses
of authority,33 the common law was able to provide a full breast for the nurture of this suckling.
It grew into, or was "ossified"34 into, a universal principle that the subsequent abuse of an
authority granted by law-as distinguished from an authority granted by a party-annulled the
authority and made the abuser a trespasser ab initio.35 But while this fictitious creature was thus
developing in parts, decay was eating away other parts.
27
7 Holdsworth, A History Of English Law (1925) 499.
28
William Blackstone, COMMENTARIES (Cooley's 3rd Ed. 1884) 14.
Six Carpenters’ case (1610) 1 Sm LC 134.
Elias v. Pasmore, (1934) 2 KB 164.
31
Ames, History of Trover (1897) 11 HARV. L. REV. 277, 287-88;
32
Ibid.
33
Candian Pacific Wine Co. v. Tuley, (1921) 2 AC 417.
34
Page v. De Puy, 40 Ill. 506, 513 (1866).
35
Commonwealth v. Rubin, at 456.
29
30
10
By the time of the Six Carpenters' Case,36 it was well established that it could not be applied in
cases where the subsequent misconduct consisted of non-feasance - exactly the type of cases in
which the fiction was first invoked. Such was its peculiar growth.
In England, the fiction continued to decay-or, at least, it grew no more.37 Many American courts
on the contrary not only adopted the creature but attempted to nurse it back to health. Although
no cases have been found invoking the fiction, except in the field of arrest, where interests of
personality have been invaded, the fiction was applied in its full rigor in the field of arrest and in
cases of levies on civil process.
In recent times, however, there have been several judicial expressions of disfavor. Within the last
year the United States Supreme Court has taken the opportunity to frown upon the doctrine. Law
writers have long counselled its death. Certainly the fiction of trespass ab initio ought to be
banished, at least from the law of arrest. The argument against its retention as a deterrent to
official misconduct has already been set forth above. We are no longer encircled by a maze of
procedure from which we need seek this avenue of escape. Nor are we much troubled by the
difficulty of trying the "thought of man." Intention is ascertained daily in our courts. In criminal
law, in cases of fraud, deceit, assault, indeed in the great bulk of our law, intention is important
and triable. The maxim, acta exteriora indicant interiora secreta, may well be preserved-and it is
of great service.
Subsequent acts may well serve as evidence of prior intent. But it is not conclusive and should
not be given the artificial quality of conclusive proof. It is necessary to distinguish sharply
between the effect of misconduct subsequent to an arrest as evidence to prove that the purpose of
the arrest was not to secure the proper administration of justice but to an arrest for a proper
purpose, as in itself depriving the officer of the immunity otherwise normally created by the
privileged character of the arrest.
The privilege of arrest is given to secure the administration of justice, generally by bringing an
actual or supposed criminal before a magistrate who can decide whether or not he should be held
for trial. Even though the circumstances are such as to justify an arrest which is made for such a
36
37
Barrett v. White in 14 Am. Dec. 352, 367-369 (1880).
Ibid.
11
purpose, the arrest is not privileged if made for any other purpose. And this is so irrespective of
whether such other purpose is otherwise wrongful. Where the officer's misconduct is an abuse of
his custody to force his prisoner to pay him or a third person a sum of money which may or may
not be justly payable by the prisoner, even an unsuccessful effort to compel such a payment
tends to prove that the arrest was made for that purpose and not to secure the ends of justice.
In fact, it is evidence, the probative force of which is often so great that it would not only permit
but require the jury to find that such was the purpose. Except in the exceedingly unusual
situations where the circumstances show that the purpose to misuse the custody was an
afterthought, it is therefore of little practical moment whether such a misconduct is treated as
proving that no privilege ever arose or as destroying a previously existing privilege.
On the other hand, a misconduct such as unreasonable delay in bringing the prisoner promptly
before a magistrate or the release of a prisoner soon after his arrest has, normally, no such
probative force. It is unfortunately true that the police do occasionally arrest a man whose
conduct has made him amenable to lawful arrest, not for the purpose of bringing him to trial for
such conduct, but for the purpose of examining him as to his own or some third party's
connection with some other and more serious offense. If such is the case, the officer is making
the arrest for the purpose of obtaining the power to extort information from his prisoner, and the
situation is substantially identical with that in which an officer makes an arrest in order to gain
power to extort money or force the restitution of a chattel. But in the great majority of cases the
delay is obviously due to some carelessness or oversight on the part of the officer or to some
other cause occuring after the arrest. So too, a prisoner's release is usually due to causes
subsequent to the arrest. It requires a vivid imagination to conceive of an officer making an arrest
for the purpose of releasing his prisoner, In these situations, therefore, it is of great practical
moment to discriminate between misconduct as evidence that the original arrest was unprivileged
and misconduct as destroying an existing privilege.
12
LIMITS AND SCOPE OF THE RULE
This rule, which is known as that of trespass ab initio, applies not merely to entry upon land, but
to all other acts which, unless done by some special authority of law, would have amounted
under the old practice to the wrong of trespass, whether to the land, goods, or person of another :
for example, the seizure of cattle damage feasant.
If such an authority is subsequently abused by doing a wrongful act under cover of it, it is
cancelled ab initio or retrospectively and deemed never to have existed, so that the exercise of it
becomes actionable as a trespass. In other words, in an action of trespass to land, goods, or
person, a plea that the act was done under authority of law may be effectively met by a
replication that the authority was subsequently abused. The rule applies only to acts done in
pursuance of a rule. "Entry, authority, or licence given to any one by the law," as in the examples
already given in the extract from the Six Carpenters' Case. "Where an entry, authority, or licence
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.38
The rule applies only when the subsequent abuse amounts to a positive wrongful act, as opposed
to a mere omission or non-feasance. Thus in the Six Carpenters' Case itself it was resolved that
the defendant was not a trespasser ab initio merely because he refused to pay for the quart of
wine and the pennyworth of bread which he bought and consumed in the plaintiff's inn. For the
same reason it is not trespass ab initio to refuse to deliver up a distress after payment or tender of
the rent or compensation due to the distrain. The remedy is trover, detinue, or replevin, not
trespass. So a sheriff is not a trespasser ab initio because he wrongfully omits to discharge at the
proper time a prisoner in his custody.39 The rule of trespass ab initio does not apply to
irregularities committed in the course of an otherwise lawful distress for rent, for it has been
abrogated in this particular case by statute. To distress damage feasant, however, the old law still
applies.40
Six Carpenters’ case (1610) 1 Sm LC 134.
Smith v. Egginton (1837) 7 A. & E. 167
40
Allen v. Crofoot, 5 Wend. 506 (N. Y.).
38
39
13
14
LANDMARK JUDGEMENTS
1. Cline v. Tait41
The plaintiff was arrested and incarcerated for a night before being presented to a magistrate.
Plaintiff sued the sheriff for false imprisonment. The court denied recovery, holding that since
false imprisonment is the unlawful violation of the personal liberty of another, it does not result
until the moment at which an imprisonment becomes unlawful; and an arresting officer cannot be
held liable for damages theretofore accruing.
2. Vaux v. Newman42. (1611) (Sometimes called the Six Carpenters' Case.)
This case illustrates the law with reference to those cases wherein a person empowered by the
authority of the law to do certain things, forfeits the protection which is given him by such
authority by reason of the abuse of the privilege. The facts were as follows: Six carpenters
entered a tavern " and did there buy and drink a quart of wine, and then paid for the same." They
then gave a farther order for "another quart of wine and a pennyworth of bread, amounting to
8d." This order was also fulfilled. For the second supply the men refused to pay. The question
was, whether this non-payment made their original entry into the tavern tortious; in other words,
whether it made them trespassers ab initio. The Court held that the men did not become
trespassers ab initio on the ground that mere non-feasance is not enough. In order to constitute
trespass ab initio there must be two conditions. First, there must be misfeasance as distinguished
from non-feasance; and secondly, the authority abused must be one given by the law, and not by
an individual. The six carpenters abused an authority given them by the law.
The law gives every man a right to enter an inn, and if these men b init io. had broken the glasses
or actively done some illegal act they would have been guilty of misfeasance and have become
trespassers ab initio; but they were only guilty of non-feasance, viz., of declining to pay for their
beverage. They did not, therefore, fulfill the conditions essential to trespass ab initio.
41
42
'Cline v. Tait (1942) 129 P. (2d) 89. 'Smith, Surviving Fictions (1918) 27
VAUX v. NEWMAN . (1611) [130] (Sometimes called the Six Carpenters' Case.) [8 CoKE, 146.]
15
Instances of trespassers ab initio may be mentioned; the lessor who enters to view waste and
stays all night; the commoner who enters to view his cattle and cuts down a tree; and the man
who enters a tavern and continues there all night against the will of the landlord. In such cases
that is misfeasance, and the authority is conferred by the law. The reason why misfeasance does
not make a man a trespasser ab initio when the authority is conferred by an individual, would
seem to be that those who voluntarily give powers can limit or recall them as they please, while
the abuse of powers given by the law needs a more stringent protection.
3. Attack v. Bramwell43
The power of a landlord to distrain his tenant's goods, when the latter will not pay rent, is
authority given him by law, and had the legislature not intervened and otherwise provided, it
would have followed as a corollary from the principles enunciated in the leading case that
misfeasance in distraining would make a landlord a trespasser ab initio. Such a result would, in
many cases, obviously work great hardship, for in an action for illegal distress, where the
defendant can be treated as a trespasser ab initio, so as to make his possession of the goods
wholly wrongful (a), the entire value of the goods taken without deducting the rent satisfied by
the seizure, will be recoverable, and not merely the actual damage sustained by the tenant. The
plaintiff in such a case can claim to be placed in precisely the same position he was in -before the
trespass took place.
4. In Megson v. Mapleson44,
Where a bailiff has levied excessive distress a landlord may recover from him the amount he has
had distress. to pay to the injured tenant. Perhaps the most common form of irregularity is that
known as excessive distress. By 52 Hen. 3, c. 4, it is enacted that they who take great and
unreasonable distress shall be grievously amerced for the excess of such distresses.
5. Newton v. Harland
It is usual to refer to the position of a person having a right of possession in regard to his power
of forcible entry on the land. Under an ancient statute, the assertion of his right, if accompanied
43
44
Attack v. Bramwell (1863), 32 L. J. Q. B. 146; 3 B. & S. 620.
Megson v. Mapleson (1883), 49 L. T. 744.
16
by a breach of the peace, amounts to an indictable offence, but the statute does not create any
civil remedy, so that damages cannot be recovered against a rightful owner for a forcible entry
on his land. For any independent wrong, however (such as an assault or an injury to the furniture
on the premises), committed in the course of the forcible entry, damages can be recovered even
by a person whose possession was wrongful.45
45
Newton v. H1arland (1840), 1 (o) M. & G. 644; 1 Scott, N. R. 474.
17
CONCLUSION
When entry, authority or license, is given to any one by law and he abuses it, he becomes a
trespasser ab initio, that is, the authority or justification is not only determined, but treated as if it
had never existed. His misconduct relates back so as to make his original act tortuous. The rule
rests upon this—that the subsequent illegality shows the party to have contemplated an illegality
all along so that the whole becomes a trespass.
The leading authority is the old case known as the Six Carpenters' case. Six carpenters entered
the plaintiff's tavern and asked for wine and drank it but refused to pay for it. It was held that
their refusal to pay would not make them trespassers. If on the other hand, they had stolen or
carried away any article in the inn, they would have been regarded as trespassers from the
moment of entry, because the law presumes from the subsequent act that the original entry itself
was with an unlawful intent. It was held '....when an entry, authority or licence is given to any
one by the law and he abuses it, he shall be a trespasser ab initio but where an entry, authority, or
licence is given by the party and he abuses it, there he must be a trespasser ab initio. The reason
for this difference is that in the case of a general authority or licence of law, the law adjudges by
the subsequent act, quo animo, or to what intent he entered'.
Trespass in law of torts may be continuing one. If the entry is lawful but it is subsequently
abused and continued thereafter the permission is determined, the trespass may be ab initio.
This principle applies not merely to entry on immovable property but to all cases for which
trespass lay under the old procedure. A person who distrains goods for rent, executes a warrant
of arrest or attachment or seizes cattle in exercise of the right of distress, damages feasant would
be liable for the original seizure itself if he destroyed the goods, assaulted the person arrested, or
killed the cattle. Thus the law tried at an early time to impose a special and stringent liability on
persons who willfully abused its authority. It had need to do so in the case of distress of goods by
landlords which being a form of self-help was in early law hedged round with regulations of a
punitive character. Similarly, the law was severe in its rules regarding abuse of public authority
by sheriffs, bailiffs and other officers of the law.
From these cases the principle was generalized and extended to all cases of abuse of public
authority to enter on property or seize chattels.
18
Whatever may have been the reason for such a rule in the old procedure, there is no longer any
need to retain it. Courts can now address abuses of legal authority with deserving damages
without its aid. Where a landlord in levying a lawful distress seized also goods which were
exempt from distraint, or a police officer while effecting a lawful arrest seized from the
possession of the arrested person documents some of which he had no right to seize,85 it was
held that there would be a trespass only in respect of the excessive exercise of the power, and not
the whole operation of distraint or arrest and seizure.
19
BIBLIOGRAPHY
BOOKS

Dr. R.K.Bangia, Law of Torts, (1997)

Dr. S.K.Kapoor Law of Torts, (2003)

G.P. Singh, Rattan Lal & Dhiraj Lal’s – The Law of Torts, (1992)

Ratan Lal & Dhiraj Lal, Law of Torts, (2000)
WEBSITES

www.lexisnexis.com

www.heinonline.com

www.westlaw.com
20