seem that, while he may obey all process fair on its face, yet if he knows of facts invalidating it, he may, if he choose, safely refuse to execute it."

46. Same subject-Service on a person in his dwelling. The question frequently arises whether entry upon private grounds or buildings in order to make service of process upon a person is justified. Generally speaking, the officer may go wherever the man is in order to make service. The limitation upon this authority lies in the maxim, that every man's house is his castle, meaning thereby that a man's dwelling may not be invaded by or at the instance of a private person, or even by an officer of the law, in the service of civil process. But a dwelling house may be broken open to arrest a man for treason, felony, or breach of the peace, or to serve a search warrant which particularly specifies the house, or to dispossess an occupant when the possession has been awarded to another by a competent court. Likewise, an officer in the execution of private process, may break into a building which is not occupied as a dwelling house." The immunity of castle in a dwelling house is confined to its outer doors,10 and if an officer has lawfully entered the house, as through an open outer door, he may, if need be, break open inner doors in order to make service of process. It may be only a part of a

8

11

6 Davis v. Wilson, 65 Ill. 525.

7 Kelley v. Schuyler, 20 R. I. 432, 39 Atl. 893.

8 Semayne's Case, 5 Coke 91 (Eng.), 1 Smith, Lead. Cas. 228.

9 Burton v. Wilkinson, 18 Vt. 186.

10 Swain v. Mizner, 8 Gray 182 (Mass.), LEADING ILLUSTRATIVE CASES.

11 State v. Beckner, 132 Ind, 371, 31 N. E. 950.

larger building which will be regarded as a particular individual's castle. A building may be occupied by many persons, having their separate apartments opening into a common hall, so that the rooms of the person complaining of an unlawful intrusion communicate with the hall by several doors.12

12 Swain v. Mizner, 8 Gray 182 (Mass.), LEADING ILLUSTRATIVE CASES.

CHAPTER VII

TRESPASS AB INITIO.

47. Trespass ab initio.-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.13 "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." 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;15 an assault, however, on the innkeeper, after lawful entry, would make the offender a trespasser ab initio.16

9914

13 Malcom v. Spoor, 12 Met. 279 (Maɛs.), LEADING ILLUSTRATIVE CASES. 14 1 Street, Foundations of Legal Liability, p. 48. Mr. Justice Holmes has expressed disapproval of the doctrine of trespass ab initio: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. I am thinking of the technical rule as to trespass ab initio, as it is called, which I attempted to explain in a recent Massachusetts case."' Viz., Commonwealth v. Rubin, 165 Mass. 453, 43 N. E. 200. The Path of the Law, 10 Harvard Law Review 457, at 469.

15 Six Carpenters' Case, 8 Coke 146 (Eng.).

16 Markham v. Brown, 8 N. H. 523.

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;" one who, after lawfully cutting grass in a highway, unlawfully feeds it to his horse;1s an officer, and also a creditor, who works a horse seized under an attachment;1 one failing to feed and water cattle after lawfully impounding them;20 one selling the whole of a chattel under a process which was against one only of several coowners of the chattel." 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 license does not make one a trespasser ab initio.22

BIBLIOGRAPHY.

Text-books: Clerk & Lindsell, Torts (6th ed.); Cooley, Torts (3rd ed.); Holmes, The Common Law, Lecture III, TortsTrespass and Negligence; Jaggard, Torts; Pollock, Torts (8th ed.); Street, Foundations of Legal Liability, vol. I, Torts.

Magazine Articles: Burdick, Tort Liability for Mental Disturbance and Nervous Shock, 5 Columbia Law Review 179; F. H. L., Right to Recover for Physical Injury Resulting from Fright Caused by Wrongful Act, Monographic Notes, 3 L. R. A. (N. S.) 49, and 22 L. R. A. (N. S.) 1073.

17 Malcom v. Spoor, 12 Met. 279 (Mass.), LEADING ILLUSTRATIVE CASES. 18 Cole v. Drew, 44 Vt. 49.

19 Lamb v. Day & Peck, 8 Vt. 407.

20 Adams v. Adams, 13 Pick. 384 (Mass.).

21 Smyth v. Tankersley, 20 Ala. 212.

22 Allen v. Crofoot, 5 Wend. 506 (N. Y.), LEADING ILLUSTRATIVE CASES.