28 Pa. 238 | Pa. | 1857
The opinion of the court was delivered by
Upon an execution issued by a justice of the peace, at the suit of Moses Strouse against Henry Ellis, constable Wilson levied upon the personal property of Ellis, and sold it without
In some cases an act which was in the first instance lawful, becomes afterwards a trespass ab initio. Here the levy was lawful, but the sale, without an appraisement upon request made, was a.n abuse of the authority contained in the writ to levy and sell; and this abuse rendered the constable a trespasser ab initio. It was not a mere nonfeasance, or negative abuse of the authority; for selling the goods without an appraisement was an act unauthorized, by law, and left the constable in the same situation as though his acts had been illegal from the commencement. Eor where the law has given an authority, it will protect persons from the abuse of the authority, by leaving the abuser in the same situation as though he had acted without any authority: actus legis nemini facit injuriam. The principle first stated has been frequently applied to cases not dissimilar to the present one. “ If J. S., who has distrained a beast damage feasant, afterwards kill or use the beast, he becomes a trespasser ab initio Bac. Ab. B., tit. Trespass, pl. 4. In Ward’s Case, Clayt. 44, it was held that a constable who had a warrant of a justice of the peace to search the house of J. S. for stolen goods, and who pulled down the clothes of a bed in which there was a woman and attempted to search under her shift, by this indecent abuse of his authority became a trespasser ab initio. In the Six Carpenters’ Case, it was said, that “ if a man who goes lawfully into an inn, be afterwards guilty*>f an injurious act therein, he becomes a trespasser ah initio, because this is an abuse of his license to enter.” So in Allen v. Crofut, 5 Wendell 506, it was held that when an authority to enter a house is given by law, and the party abuses the license thus obtained, he will be considered a trespasser ab initio; but where the entry is by license, not under legal authority, an unlawful act done after the entry, will not make the entry a trespass. In Sackrider v. McDonald, 10 John. R. 253, for impounding cattle taken damage feasant, before the damages were ascertained by two fence viewers, one was held to be a trespasser ab initio. The same rule has been applied to an ofiicer who sold property by process of law before and after the time prescribed by law: 14 Pick. 350; 21 Pick. 55; 7 Mass. 388. The principle was recognised by Chief Justice Tilghman in Hazzard v. Israel, 1 Binn. 240, and directly applied in Kerr v. Sharp, 14 S. & R. 399, where a landlord and his bailiff were held liable in an action of trespass for selling goods distrained for non-payment of rent, without appraisement or notice.
Judgment affirmed.