We need not pause, however, to decide whether the continuance of the keepers constituted a trespass since the defendant's act in padlocking the plaintiff's premises was unjustifiable and made him a trespasser ab initio. Walsh v. Brown, 194 Mass. 317, 319. Morrin v. Manning, 205 Mass. 205, 210. Chetteville v. Grant, 212 Mass. 17, 19. There was a lapse of time, the length of which does not appear, between the plaintiff's resumption of possession by breaking the padlocks and the reinstatement of keepers on August 26. It could be found that the plaintiff's business certificate was then on file and that the taking of possession of the goods by a keeper was a new seizure which was not justified by the absence of a certificate.
What is trespass and what is not trespass has been considered many times. From early times it has been generally held by the courts that a wrongful actionable tort committed after a rightful entry upon the premises may relate back and convert the original entry into a trespass ab initio. Especially is this rule applicable in cases where the act indicates intention existing ab initio. Six Carpenter's Cases, 8 Coke 291 (same case in Smith's Leading Cases); 38 Cyc. 998 notes; Adams v. Freeman, 12 Johns. (N.Y.) 408, 7 Am. Dec. 327; Markham v. Brown, 8 N.H. 523, 31 Am. Dec. 209; Patapsco Loan Co. of Baltimore City et al. v. Hobbs, 129 Md. 9, 98 T. 239; Walsh v. Brown, 194 Mass. 317, 80 N.E. 465, 120 Am. St. Rep. 556. So, also, is it well settled that injunctions will lie to enjoin trespasses or acts which are of such a nature as to threaten frequent recurrence and a multiplicity of suits. Richey v. Bues, 31 Utah 262, 87 P. 903; 32 Cyc. (trespass) p. 139 and notes; 32 C.J. 556.
This action on the part of the officer was unwarranted. Lambert v. Breton, supra; Williams v. Powell, 101 Mass. 467; Walsh v. Brown, 194 Mass. 317; Morrin v. Manning, 205 Mass. 205; Chetteville v. Grant, 212 Mass. 17. By his unlawful act, he became a trespasser.
The court may correct its own judgment or error after the term, for mistakes of the clerk; 5924 C.S.; or by motion upon reasonable notice; 5926 C.S. The court had jurisdiction to vacate the order; 5927 C.S. Courts have inherent power to correct their records without statutory grant; 15 C.J. 976, 977; Hollister v. Co., (Ia.) 119 N.W. 626; Hardin v. Card, 17 Wyo. 210. Entering default and judgment for plaintiff, when defendant has a demurrer on file, may be corrected at a subsequent term; Follett v. Alexander, (Ohio) 50 N.E. 720. The sale of a homestead, under circumstances shown by this case, cannot be sustained; Bach v. May, (Ill.) 45 N.E. 248. In the sale of the homestead, and retention of proceeds, the sheriff was a trespasser; Costa v. Goldenberg, (Mass.) 154 N.E. 579; Walsh v. Brown, (Mass.) 80 N.E. 465. The confirmation order does not cure the sale; Mc Lanahan v. Goodman, (Pa.) 108 A. 206. It was the sheriff's duty to collect from the purchaser the $2,500, representing the homestead exemption, and, having failed to do so, the sale was void; 5977, 5978 C.S. The application to vacate a sale should be made by motion to the court from whence process issued; 23 Cyc. 682; 10 R.C.L. 1320; Woody v. Jameson, (Ida.) 50 P. 1008; State v. Court, (Mont.) 240 P. 667, 671. An execution sale cannot be attacked collaterally unless void; Thomassen v. De Goey, (Ia.) 110 N.W. 581; Jochun v. Cooky, 176 Fed. 100; Francis v. Sheats, (Ala.) 45 So. 241; Morgan v. Stevens, (Okla.) 223 P. 365; Keyston v. Mudge, (Pa.) 100 A. 526; Humbolt v. March, (Cal.) 68 P. 968.
The defendant, if found to have made an attachment which in amount was unwarranted by the writ, became a trespasser ab initio. Walsh v. Brown, 194 Mass. 317. And the plaintiff could sue for conversion, as well as for abuse of process. Scollard v. Brooks, 170 Mass. 445, 448. Wood v. Graves, 144 Mass. 365. Humphreys v. Sutcliffe, 192 Penn. St. 436.
But there was evidence that the defendant put a lock on the rear door of the plaintiff's rooms and prevented the plaintiff and his servants from using that door. If, as might have been found, this was without the plaintiff's assent, it was a wrongful act and entitled the plaintiff to maintain his action. Walsh v. Brown, 194 Mass. 317. Morrin v. Manning, 205 Mass. 205. It follows that the verdict for the defendant ought not to have been directed, and for this reason alone the order must be Exceptions sustained.
In thus excluding the plaintiff the defendant exceeded his authority under the writ and became a trespasser ab initio. Walsh v. Brown, 194 Mass. 317. 2.
A relatively small portion of Welch's Amended Complaint implicitly included Welch's defense of the trespass claim; if Welch had authority pursuant to the Licensing Agreement to enter the areas Cadbury claimed were "restricted," then its entry was not "unlawful." See Walsh v. Brown, 194 Mass. 317, 319 (1907); Smith v. Eliot Savings Bank., 355 Mass. 543, 548 (1969). B. Legal Fees and Costs in the Underlying Case