Court case(1610) 8 Co Rep 146a

Six carpenters entered a common inn in London. A common inn is open to travellers, who enter it by an authority given by law and not merely by the innkeeper's licence. The carpenters ordered a quart of wine and a pennyworth of bread, which they consumed and paid for. They then ordered and consumed more wine, but refused to pay for the second order. The innkeeper sued them in trespass, contending that their misconduct made their entry into the inn a trespass from the beginning.

The court held that the carpenters were not trespassers. It accepted the general rule that where an entry, authority or licence is given to anyone by the law, and he abuses it, he becomes a trespasser ab initio; but where the entry, authority or licence is given by the party, and he abuses it, he must be punished for his abuse and is not a trespasser ab initio. It added the qualification that decided the case: the abuse that makes a person a trespasser ab initio must be a positive act, a misfeasance, and not a mere non-feasance. Not paying for the wine was only a non-feasance, a failure to do something; it did not make the entry wrongful, and the innkeeper's remedy was an action for the price.