Stearns and Wife v. Sampson.

such tenant is a mere wrong-doer. Co. Litt. 576; Pike & Hassen's Case, 3 Leon, 233; Sir Moil Finches' Case, 2 id. 143."

"For the preservation of the peace, the law will furnish forcible entry; but the tenant at sufferance, being himself a wrong-doer, ought not to be heard to complain in a civil action for that which is the result of his own misconduct and injustice.

"The distinction between the civil rights of a person forcibly turned out of the possession of land, and the penal sanctions by which he is protected from being forcibly dispossessed, are drawn in a marked way in the cases in our old books relating to the statutes of forcible entry. Although by those statutes all forcible entries were prohibited, even by those who had title to enter, yet the party dispossessed could maintain no action on the statutes. This is pointedly laid down in the Year Book, 9 H. 6, 19; 15 H. 7, 17; F. N. B. 248 H."

The opinion of the majority in this case, too, is alike adverse to the prior as well as the subsequent decisions of the English courts on this question.

In Taunton v. Costar, 7 D. & E. 427, Lord KENYON uses the following language: "Here is a tenant, from year to year, whose term expired upon a proper notice to quit, and because he holds over in defiance of law and justice, he now attempts to convert the lawful entry of his landlord into a trespass. If an action of trespass had been brought, it is clear the landlord could have justified under a plea of liberum tenementum. If, indeed, the landlord had entered with a strong hand to dispossess the tenant by force, he might have been indicted for a forcible entry; but there can be no doubt of his right to enter upon the land at the expiration of the term. There is not the slightest pretense for considering him as a trespasser in this case." It is to be borne in mind, as was held in The King v. Wilson, 8 D. & E. 358, the words manu forti are understood to import something criminal in their nature; something more than is meant by the words vi et armis. In Harvey v. Bridges, 14 M. & W. 437, PARK, B., uses this language: "If it were necessary to decide it, I should have no difficulty in saying that when a breach of the peace is committed by a freeholder, who, in order to get possession of his land, assaults a person wrongfully holding possession of it against his will, though the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to

Stearns and Wife v. Sampson.

doubt, that it is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly; even though in so doing, a breach of the peace was committed." In Pollen v. Brewer, 97 E. C. L. 371, ERLE, C. J., after stating the modes in which the tenancy was terminated, says: "I am of opinion that either of these was a sufficient intimation to the plaintiff that he was no longer tenant at will, and that his continuance of the possession was without a shadow of right, and, therefore, that the defendant was justified in treating him as trespasser and removing him from the premises. There was abundant evidence that, at the time of the expulsion, the plaintiff was on the premises without any right."

In Burling v. Read, 63 E. C. L. 907, Lord CAMPBELL says: "The plaintiff is a trespasser. What right can he have to prevent the owner of the soil from pulling down the house?"

The authorities in Massachusetts are in conformity with the later English authorities on this subject. Meader v. Stone, 7 Metc. 147. "By the principles of the common law," observes WILDE, J., in Fifty Associates v. Howland, 5 Cush. 214, "some degree of force is allowed in expelling an intruder into a man's lands or tenements, who refuses to quit, although he has no right to the possession. The owner is not justified to use such degree of force as would tend to a breach of the peace, but he is allowed to use such force as would sustain a plea of justification of molliter manus imposuit." In Curtis v. Galvin, 1 Allen, 215, it was held, that a tenant at sufferance could not maintain an action against the owner of the premises, who entered upon and expelled him, and removed his furniture. In Mugford v. Richardson, 6 id. 76, the owner of a tenement entered the same without objection, as in the present case, and removed the windows. The female plaintiff attempted to prevent their removal. The court held the defendant was justified in using sufficient force to overcome her resistance.

In New York, it was early determined that, if a person, having a legal right to enter upon land, enters by force, though liable to indictment, he is not liable to a private action for damages at the suit of the person whom he turns out of possession. Hyatt v. Wood, 4 Johns. 150; Ives v. Ives, 13 id. 235. It was held in Willard v. Warren, 17 Wend. 257, that, to constitute a forcible entry, there must be something beyond a mere trespass upon the property. VOL. VIII. - 57

Stearns and Wife v. Sampson.

Breaking the door of an outhouse in the actual possession of the plaintiff, by forcing the lock, was decided not to be a forcible entry. But in the case under consideration the entry was peaceable and without force.

The plaintiff, upon the termination of his lease, became tenant at sufferance. In such case the owner of the fee may enter at any time and put an end to his holding. Reed v. Reed, 48 Me. 388. In Allen v. Bicknell, 36 id. 436, it was held that the mortgagee might enter on the mortgagor by force and remove his goods, and that the mortgage would afford a complete justification. The same principles apply where the tenancy is legally terminated. Indeed, such is assumed to be the law in Cunningham v. Horton, 57 Me. 420. Without determining the effect of a forcible entry on the rights of parties, after the due termination of a tenancy, it seems to be fully settled by the weight of judicial authority, when a tenancy has been legally terminated, that the landlord may enter peaceably upon the premises; that, thus entering, he may remove the tenant therefrom, using such force as would sustain a plea of molliter manus imposuit; and that he may remove his goods, if the tenant, after a sufficient opportunity, neglects to do so, using due care and caution in their removal and depositing them in a near and convenient place.

Motion sustained; new trial granted.

CASES

IN THE

COURT OF APPEALS

OF

KENTUCKY.

SHERLEY, appellant, v. BILLINGS.

(8 Bush, 147.)

Master and servant — liability of master for willful torts of servants.

A passenger upon defendants' boat was assaulted and injured by an officer of the boat. Held, that defendants were liable. (See note, p. 456.)

APPEAL from a judgment entered upon a verdict in favor of the plaintiff. The opinion states the case.

I. & J. Caldwell and Hamilton Pope, for appellants.

Clemmons & Willis, for appellee.

LINDSAY, J. Charles H. Billings, a boy about fifteen years of age, while a deck-passenger on the steamer Ben Franklin, was assaulted and stricken down by an officer of the boat, and, among other injuries received, one of his eyes was totally destroyed.

This suit against Sherley and others, owners of the Ben Franklin, was brought by appellee to recover damages for the injuries thus sustained at the hands of their officer and employee. A trial resulted in a verdict in his favor for the sum of $4,400. Judgment was rendered upon this verdict, and a motion for a new trial having been overruled, appellants have prosecuted this appeal.

Sherley v. Billings.

The third clerk of the boat, one Williams, was charged with the duty of collecting the passage-money due from the deck-passengers. While engaged in the performance of this duty he approached Billings and demanded his fare, which was promptly paid. The clerk immediately charged him with having hidden under the boilers, and the charge being denied, the assault was instantly made and the injuries complained of inflicted.

Appellants deny their responsibility as owners of the boat, and employers of this officer, for the consequences of his willful and unauthorized tort, insisting that the act complained of was not done by the clerk in the discharge of any duty imposed upon him by the terms of his employment, nor under authority from them, either express or implied, and that it has not been ratified by them by the retention in their employ of such officer.

They complain that the court below erred as to the law of the case, and not only misinstructed the jury, but permitted improper testimony to be heard and considered.

A brief review of the principles by which the rights of the parties to this action must be determined will enable us the more readily to test the legal accuracy of the instructions given and refused on the trial.

Ordinarily, the master is not liable to answer in a civil suit for the wrongful or tortious act of his servants, unless it is done in the course of his employment. If the servant goes beyond the scope of his employment, he is as much a stranger to his master as to any third person, and his acts can in no sense be regarded as the acts of his master. It is not enough that the trespass be committed while the relation of master and servant exists; nor that the servant is then engaged in the business of his master; he must at the time be acting for him and in his name. The difficulty in this case grows out of the application of these principles to the facts presented by the record. Where there has been no statutory modification of the common law, and where the party injured is a stranger to the master, having no claims upon him for protection from insult or injury, he is no more responsible for the action of the servant, not done with his assent nor within the scope of his employment, than for the actions of a mere stranger.

In this case the appellants are common carriers of passengers They do not undertake absolutely to insure the safety of those subjecting themselves to their control; but the law holds them to "the