Mugford v. Richardson

88 Mass. 76 | Mass. | 1863

Dewey, J.

The right of the plaintiffs to the possession of the house had terminated by their failure to pay rent, and the notice given to them by the defendant to quit the same. In this state of the facts, the defendant had the right to enter upon the premises and take out the windows of the same. That no action would lie by the tenant against the landlord for such entry, was decided in the case of Meader v. Stone, 7 Met. 147. The cases of Curl v. Lowell, 19 Pick. 25, and Curtis v. Galvin, 1 Allen, 215, affirm the same doctrine. The only point of inquiry is, whether the form of this action, and the claim for damages for a personal assault, require a different rule. The case finds that the defendant had, by virtue of his legal rights as landlord, entered the tenement peaceably and without objection. Being thus in peaceable possession of a portion of the tenement, the court properly instructed the jury that if the female plaintiff undertook to prevent him from taking out the windows, he had the right to use as much force as was necessary in order to overcome her resistance.

Exceptions overruled