To cite an instance, a gentleman, well known in this country, where he left a large property, some of which still remains in the hands of trustees, and whose name is a familiar word in Boston, some time in the last century, was a silent partner in a large English firm. The firm failed, leaving immense debts, and he was adjudged responsible for them. He preferred to spend his life in prison, and did so, living on the income of the property, which his creditors could not touch, and thus saved it for the benefit of his heirs. Such cases as this show the object of the provision, and as it would be difficult to prove intent, the intent was made immaterial. The act was first introduced into the law in 1604, while the idea still prevailed that bankruptcy was a crime, and this was one of the acts by which those who "wickedly and wilfully became bankrupts" were known. It was in its character criminal, and meant to reach criminals. Surely debtors who lie in prison from utter poverty, can hardly be classed as "wicked and wilful," or their course called a "deceit," nor would the proceeds of such a debtor's estate pay the expenses of the bankruptcy proceedings. It was not to protect creditors against these, but against contumacious debtors who were able to pay and would not, that this act was introduced.

Insolvency had nothing to do with bankruptcy under this system. Lord Mansfield said, in answer to counsel, "You are right; a man may become insolvent without being bankrupt, and a man may become a bankrupt and yet be able to pay twenty-five shillings in the pound." (Hassells v. Simpson, Doug. 88.) "Inability to carry on trade is not bankruptcy; a man may, at any moment, stop both his trade and his payments, but more must be done before he can be made a bankrupt. . . Insolvency or ina

bility to trade do not necessarily either separately or together infer or produce bankruptcy." (1 Christian, Bankrupt Law, 144.) This strengthens the conclusion that the lying in prison was not an act of bankruptcy because it was proof of insolvency. The argument drawn from this review is brief. The section. which authorizes compulsory proceedings, is founded directly on the English system. It enumerates certain acts, which, with one exception, are taken from the English statutes, where they have had place for centuries. The purpose of the English law is to protect creditors against fraud, and the enumerated acts are acts of bankruptcy because they are proofs of fraud. Our statute pro

vides, in all cases where the act itself could be equivocal, that it must be done with fraudulent intent. The exception to this is being in custody or imprisonment for seven days, which corresponds to lying in prison under the English system. The origin and purpose of this act have been shown, and probably under no state system would any man be detained even seven days except in case of suspected fraud, since the poor debtor's oath would release him, if utterly destitute, so that this provision can operate only to check fraud. None other of the enumerated acts affords any evidence of insolvency, hence all must be meant as proofs of fraud. It is expressly provided that this new act of bankruptcy, stoppage, or suspension for fourteen days, must be fraudulent. Can there be any doubt that Congress meant what it said?

The conclusion may be stated in the language of Judge Blatchford. In a case where a mere suspension for fourteen days was proved, he says, "This is not sufficient; something must be shown from which the court can draw the conclusion that the stoppage or suspension of payment of the note was fraudulent. . . . If the legislature had intended that mere stoppage or suspension without resumption within fourteen days, should be an act of bankruptcy, it would have said so plainly. It has unmistakably said that it shall not be an act of bankruptcy, unless the stoppage or suspension is fraudulent." 1

1 In re John Davis, 3 B. R. 89.

RIGHT OF A LANDLORD TO REGAIN POSSESSION BY FORCE.

"THE law," says Mr. Justice Wilde, in Sampson v. Henry, 11 Pick. 379, 387, "does not allow any one to break the peace, and forcibly to redress his private wrongs. He may make use of force to defend his lawful possession; but, being dispossessed, he has no right to recover possession by force and by a breach of the peace." A similar declaration was made by Lord Lyndhurst at Nisi Prius, in the case of Hillary v. Gay, 6 C. & P. 284. In neither case was so broad a proposition called for by the facts at issue; yet the doctrine thus advanced has been repeated without qualification by courts and text-writers, and applied in cases, or made the foundation for liabilities to which its application was warranted, neither by authority nor on principle.

The subject we propose to consider is, how far a landlord, who regains by force the possession of the demised premises, after the possessory right of the tenant therein has determined, can be held subject therefor to any other liabilities than those which the Statutes of Forcible Entry and Detainer have expressly annexed to his act; and, secondly, what is the nature and extent of these express liabilities.

By the Statutes of Forcible Entry and Detainer, whether in England or the United States, but three penalties are anywhere expressly imposed: first, fine or imprisonment; secondly, restitution upon a conviction, or, when the force is found upon inquisition or otherwise by a justice or a jury, in some localities purely a criminal, and in others also a civil, consequence of the act; and, thirdly, a special action on the statute with treble damages, which is given by the English statute, and by those of a few of the United States.1 But, by implication from the statutes, the employment of force by the landlord in regaining possession has also been held to render him liable in trespass for assault, or for removal of the tenant's goods, and in a few instances also to an action of trespass qu. cl. We propose to proceed in our inquiry in the inverse order to this enumeration, and to inquire, first, how far an action of trespass at

1 Of Vermont, Connecticut, New York, and Wisconsin.

common law is warranted by the authorities, and then what is the extent and application of the statutory penalties proper.

That a tenant whose right to possession is determined either by the expiry of his term, by forfeiture, or by notice to quit, and who is therefore a tenant at sufferance, and himself a wrong-doer, may yet treat his lessee, who is entitled to immediate possession, as a trespasser, and relying on his right, maintain trespass qu. cl. against him, merely because the right of the latter has been forcibly asserted, seems so extraordinary a proposition, that if not warranted by express words of the statutes, nothing but the clearest implication from their language could justify it, and as the removal of the tenant upon or after entry is but a part of the act of entry, and depends on the legality of the possession thereby gained, for its justification, the action for assault or for removal of the tenant's goods, must stand or fall with the action of trespass qu. cl.

It is admitted, it should be remarked, in the first place, that, at common law, the lessor was liable to no action for forcible entry or expulsion of the tenant; but at most to an indictment for a breach of the peace, punishable only by fine or imprisonment.1 But the ground taken is, that the express prohibition of such entry, with a penalty therefor, by the Statutes of Forcible Entry and Detainer, made the act civilly illegal and incapable of revesting the lessor with a lawful possession, and that for such entry or any assertion of possession based thereon, the lessor became liable like any mere stranger to the lessee.

The English statutes on this subject, from which, with some variations, all those in the United States have been derived, were, excepting only some supplementary enactments not material here, three in number: 5 Rich. II. c. 8; 8 Hen. VI. c. 9, and 21 Jac. I. c. 15. By the first, it was declared "That none from henceforth shall make any entry into lands or tenements but in case where entry is given by law; and, in such case, not with the strong hand nor with multitude of people, but only in a peaceable and easy manner;" and fine and imprisonment were imposed upon conviction for such forcible entry. By the Stat. 8 Hen. VI. c. 9, forcible detainer, as well as forcible entry, was made criminal, an action of trespass or assize of novel disseisin on the statute with treble damages was given to the party disseised, and restitution on the finding of the force was also to be made to the party disseised, 1 Hawkins, Pl. Cr. B. 1, ch. 28, § 3; Dustin v. Cowdrey, 23 Vt. 631, 635.

and as this term was held to imply a freehold, the right to have restitution was by the Stat. 21 Jac. I. c. 15, extended to tenants for years also.

It will be perceived, that while these statutes make a violent entry or detainer an offence, they also expressly specify the penalties incurred, and thereby exclude the idea of any implied liability, except the indictment at common law, and it has accordingly been held with increasing definiteness by the English courts that these statutes are special, subjecting the offender only to the penalties named therein, and do not affect the civil character of the act. But two decisions- one of them an extra-judicial Nisi Prius ruling, and the other a majority opinion-break the nearly uniform current of authority, and treat the lessor as a trespasser, and liable as such to his tenant at sufferance. Neither of them however although they are the sole reliance of the American courts that have held the lessor to such a liability - sustain an action of trespass qu. cl., but only of trespass for assault, and both were shaken and finally overruled by repeated decisions in the Courts of Exchequer, King's Bench, and Common Pleas.

For the doctrine seems early to have been established that the removal of the tenant by force, unless excessive, was not of itself the subject of a personal action, but depended on the title to the possession, and hence that liberum tenementum was a good plea to such a removal as well as to trespass qu. cl. Thus in Taylor v. Cole, 3 T. R. 292, in an action of trespass qu. cl. with a count for expulsion, a plea of justification of the entry under process was held a defence to both counts. The occupant yielded without forcible resistance to the expulsion, but it was held generally that expulsion was mere matter of aggravation to the trespass to the land, and was answered with this by a plea of title unless there was undue force and the plaintiff new assigned for an assault. The principle established by this case was, therefore, that a party regaining possession by title might assert that possession and expel the occupant with any proper amount of force. The sufficiency of title, as a justification, was again declared in Argent v. Durrant, 8 T. R. 403, where a lessor was held not liable for entering and pulling down a wall, while the tenant held over, and was carried still further in Butcher v. Butcher, 7 B. & C. 399, where a freeholder after entry was allowed to treat the party who persisted in remaining as a mere wrong-doer, and to maintain trespass qu. cl. against him.