The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-24
OPINION OF THE COURT By FREAR, J.

This Is an action OF trover, dam
ages laid at $500, for wrongful con
version Of goods consisting of electro
plating machinery, tools and supplies
and chattels of plaintiffs which were
IL a shop occupied by plaintiffs,
rented Of defendant. Tho case was
heard In the Police Court of Homo
lulu, which gave judgment for de-
PENDANT and on appeal again, by
Justice of this Court at Chambers,
who, in affirming the Judgment be-
low, held that the goods In question
were legally distrained. The essen
tial facts found were that plaintiffs
were in arrears of rent for about
three months, amounting to $23.
They had closed up and locked the
shop containing the goods thereafter
seized. Defendant not being able to
get his rent, and hearing the plant
ifs were about to remove their goods,
nailed up the shop, and the next day
entered it and took the goods In
question away to an auction room.
Plaintiffs saw the removal, but made
no protest. The plaintiffs now ap-
peal to this Court on the following
points of law: FirSt-That the action
Of the defendant in breaking open
the building held by the plaintiffs as
tenants of defendant, and by forcing
an entry in order to distrain the
goods and ehattels of plaintiffs, rem
dered the distraint illegal, and made
defendant liable in trover for the
value of said goods and 'chattels.
.SecOHd-That the distress was illegal
because the amount of goods taken
was excessive, the rent being twenty
three dollars. The statute. where
rent Is in arrears, allows the landlord
to enter the premises In respect to
which such rent shall be In arrears,
without any legal process, and there
to distrain and remove to place of
safe custody, any goods and ci;attels
of such defaulting tenant found on
the premises, etc.
The common law also allowed the
landlord, when rent was In arrears,
TO enter the tenants premises and
there distrain his goods and chattels-
But If the landlord abused his au-
thority, as by breaking open an outer
door, he became a trespasser G6
initi0, and the distress was rendered
wholly illegal.
In The Sir Carpenters Case, S Coke,
I46 Ism. l.. Gas. 216l, it was resolved
that 'when entry, authority, or license
is given to anyone by the law, and he
doth abuse it, he shall be trespasser
aE initio." Otherwise of an authority
given by the party. In lSeHadyne's
Case, 5 Coke, 81 Ism. Id. Gas. 1881, 1t
was resolved that, In the case of
dwelling house, which is a
mans castle, although it is not
an abuse of authority for an
officer to break the house il
necessary to effect an entry In the
execution of criminal process, for
this concerns the commonwealth,
vet it is otherwise in the execution
of civil process upon the body OF
goods, for this is for the particular
interest of the party; but If the door
is open, the officer may enter and ex
ecute such process, and SO may Q
landlord enter and distrain for rent
In Broacn rs. Glenn, 16 q. b. 254, II
was held that, in the case of house
other than a dwelling house,as in the
case at bar, although 1t IS not al
abuse of authority for an officer IN
the execution of civil process &c
break the house if necessary to etfec
an entry, yet it IS otherwise In the
case of a landlord distraining FOL
rent: 'for distinction may reason
ably be made between the powers o.
an officer acting In execution of leSa
process and the powers of a private
Individual who takes the law into hi:
own hands and for his purposes
In that case a distress for rent wa:
held illegal because, as in the case a
bar. the landlord broke open dool
which was locked. In attack rs. Bran
,cel. 8 B. & S. $40, distress for rem
was held void, because the LANDLORD
had entered by breaking In a win
dow. In Hancock Vs. dustin, II =. Is
N. s. 634, a distress was held llIega
where the entry was made through
window which was fastened with al
ordinary hasp, though without break
ing anything.
Our statute allows the LANDLORD
no greater privilege than was allowed
by the common law In respect to TIT
mode of entry. If the LANDLORD
abuses his privilege, the distress Il
rendered wholly void. 1t IS an abus'
of his privilege to break open al
outer door that Is locked. The Law
confers upon the landlord the un
usual privilege OF being both judg,
and executioner in his own case, anC
he must DO held to strict account
ability In the exercise of this priv
lege. There is even more reason fol
30 holding now than there wa
when the common law grew up
for the policy of the Law
now is against comforting such ex
ceptionaI privileges upon landlords
Indeed, in the United States thu
remedy by distress has become IN
popular, and has by statute beer
abolished in many of the States, ant
restricted and regulated in others
5 Am. & Eng. Encyc. of Law, I'll.
Trover is a proper remedy for
wrongful distress. So it was at com
mon law, though now by statute IL
England the remedy IS confined tt
trespass or case, where the origina
taking is lawful, but the party after
wards does some unlawful act. Note
20 The Sir Carpenters Case, supra
Raneock Is. dustin, supra; Shipriet rs