The Six Carpenters Case [1572] EngR 452

Trespass – Stolen goods

Facts

Six carpenters (S) were served with wine and bread at a tavern which they paid for. S
requested more wine and bread afterwards, of which they were served, by this time they
refused to pay. John Vaux (J) brought an action of trespass against Thomas Newman
and the five other carpenters.

Issue

The issue in question in the present case was whether the non-payment by S made the
entry into the tavern tortious and therefore trespass.

Held

There was no trespass. When an entry, authority, or licence, is given to any one by the
law, and he abuses it, he shall be a trespasser ab initio, however it will not be trespass
where the entry or authority is given by the party and abused. Chic Fashions (West
Wales) v. Jones [1968] 2 QB 299 doubts the ratio in the instant case that if a man
abuses an authority given by law, he becomes a trespasser ab initio, due to the effect
this would have on the ability of constables to execute search warrants. Chic
Fashions claims that the law has been gradually altered since the instant case to give
greater protection to constables. In that case it was held that a constable who enters
private property by virtue of a search warrant is entitled to seize not only goods
reasonably believed to be covered by the warrant but also any other goods which he
honestly and reasonably believes to have been stolen.

The Six Carpenters’ Case

Sir Frederick Pollock (1845–1937)

“THE LAND OF WONDER-WANDER”

(1 Smith, L. C. 133, 7th Ed.)

THIS case befell at four of the clock

 (now listeneth what I shall say),
and the year was the seventh of James the First,
on a fine September day.
5
The birds on the bough sing loud and sing low,
what trespass shall be ab initio.

It was Thomas Newman and five his feres

(three more would have made them nine),
and they entered into John Vaux’s house,
that had the Queen’s Head to sign. 10

The birds on the bough sing loud and sing low,

what trespass shall be ab initio.

They called anon for a quart of wine

(they were carpenters all by trade),
15
and they drank about till they drank it out,
and when they had drunk they paid.
The birds on the bough sing loud and sing low,
what trespass shall be ab initio.

One spake this word in John Ridding’s ear

20
(white manchets are sweet and fine):
“Fair sir, we are fain of a penn’orth of bread
and another quart of wine.”
The birds on the bough sing loud and sing low,
what trespass shall be ab initio.
25
Full lightly thereof they did eat and drink
(to drink is iwis no blame).
“Now tell me eight pennies,” quoth Master Vaux;
but they would not pay the same.
The birds on the bough sing loud and sing low,
30
what trespass shall be ab initio.

“Ye have trespassed with force and arms, ye knaves

(the six be too strong for me),
but your tortious entry shall cost you dear,
and that the King’s Court shall see.
35
The birds on the bough sing loud and nought low,
your trespass was wrought ab initio.”

Sed per totam curiam ’t was well resolved

(note, reader, this difference)
that in mere not doing no trespass is,
40
and John Vaux went empty thence.
The birds on the bough sing loud and sing low,
 no trespass was here ab initio.

This fiction had its origin in the ancient law of distress of property," and received its first statement by
Coke in the "Six Carpenters Case."' Coke reports: ". .. first, it was resolved when an entry, authority or
license, is given, to anyone by the law and he doth abuse it, he shall be a trespasser ab initio; but where
an entry, authority, or license is given by the party, and he abuses it, then he must be punished for his
abuse, but shall not be a trespasser ab initio." As a second proposition, "It was resolved per totam
curiam, that not doing cannot make the party who has authority or license by law a trespasser ab initio,
because not doing is no trespass." This latter proposition is based upon the theory that in such a case
the landowner might choose his own licensee, and should take the risk of possible abuse of the license.'
Prosser states that the subsequent act must be one which in itself would amount to a trespass, and that
a mere omission, such as a failure to pay for drinks after entering an inn is not sufficient."0 He is of the
opinion that this view has been due, in some respect, to the formal requirements of the trespass action.
It would seem that the early development of the fiction was confined almost wholly to the abuse of
some privilege." Thus, the doctrine most commonly applied in case of damage done after a privileged
entry upon land," or the misuse or wrongful disposition of goods seized under process of authority of
law," or where the reversionary entered to see if the tenant in possession was committing waste."