The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-05-30
OPINION OF THE COURT By FREAR, J.

OPINION or THE COURT By FREAI, J.
This is an action of troyer. 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
in a shop occupied by plaintiffs,
rented of defendant. The case was
heard IN the Police Court of Homo
lulu, which gave Judgment for de-
PENDANT and on appeal again, by a
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 S23.
They had closed up and locked the
shop containing the goods thereafter
seized. Defendant not being able to
get bis rent, and hearing the plant
ifs were about to remove their goods,
nailed mp 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 or 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 chattels of plaintiffs, rem
dered the distraint illegal, and made
defendant liable in trover for the
value of said goods and chattels.
.Sec0ad-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 chattels
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 ad
inttiO, and the distress was rendered
wholly illegal.
In TIE Sir Carpenters Case, s Coke,
146 Ism. L. Gas. 216), it was resolved
that "when entry, authority, or license
is given to anyone by the law, and he
doth abuse it, he shall be a trespasser
al initio" Otherwise of an authority
given by the party. In ,Semayne's
Case, 5 Coke, 81 Ism. Id. Gas. 1881, it |
was resolved that, in the case of |
a dwelling house, which is a
mans castle, although it is not |
an abuse of authority for an
officer to break the house if
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 or
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 a
landlord enter and distrain for rent.
In Broom rs. Glenn, Is Q. B. 254, it
was held that, in the case of a house
other than a dwelling house,as in the
case at bar, although it is not an
abuse of authority for an officer in
the execution of civil process to
break the house if necessary to effect
IN entry. yet it is otherwise in the
,ase of landlord distraining for
rent; "for a distinction may reason
ably be made between the powers of
IN officer acting in execution OF legal ,
process and the powers of a private
Individual who takes the law into his {
,wn hands and for his purposes" S
IN that case a distress for rent was I
leld illegal because, as IN the case at
Jar, the landlord broke open a door
which was locked. In attack u.s. Bran
ell, 8 B. & S. $40, distress for rent
vas held void, because the landlord
lad entered by breaking in win
iOM- III AuNCOCt tS. -duSLtH, Ii " ID. | :
I. S. 634, a distress was held illegal :
where the entry was made through a
window which was fastened with an G
rdinary hasp, though without break J
Dg anything. f
Our statute allows the landlord S
% greater privilege than was allowed !
y the common law in respect to the
lode of entry. If the landlord :
bnses his privilege, the distress is :
endered wholly void. 1t is an abuse y
his privilege to break open an
utter door that is locked. The law
onfers upon the landlord the IN /
sual privilege of being both judge t
nd executioner in his own case, and o
e must be held to strict account Il
bility in the exercise of this priyi-
,ge. There is even more reason for
) holding now than there was
Il. 4