Of the plea. scribes himself in right of his own estate (a), it seems, that it is sufficient to state generally that the plaintiff ought to repair the fences. (b) Of defect of fences. Under legal process. The defendant may justify in an action of trespass quare clausum fregit, by pleading an entry to execute process (c), and when the defendant justifies under a writ, warrant, precept, or any other authority whatever, he must set it forth particularly in his plea, for it is not sufficient to allege generally that he committed the act complained of by virtue of a certain writ, or other warrant directed to him, but he must set it forth specially, and shew that he has pursued the authority in substance and effect. (d) There is a distinction in pleading a justification under process, between the party or a stranger, and the officer. The party in the cause, or a stranger, must set forth the judgment as well as the writ in the plea (e), but the officer need only shew the writ and warrant (f), for he is bound at all events to execute the process of the court. Where the party to the cause and the officer join in the plea, it must contain a justification sufficient for both, and must, therefore, set out the judgment, or it will be bad. (g) If an officer justify under mesne process, which he ought to return, and all mesne process ought to be returned, he must shew a return in his plea (h), but there is said to be a difference between the principal officer, to whom the writ is directed, and a subordinate officer, for the former shall not justify under the process, unless he has obeyed the order of the court in returning it, while it is otherwise with regard to the latter, who has not the power to procure a return to be made. (i) Where an officer justifies under final process, he need not shew a return, unless some ulterior process is to be resorted to, in order to complete 58. (a) Rider v. Smith, 3 T. R. 766. (b) See Lib. Plac. 304. 9 Wentw. (c) Com. Dig. Pleader, (3 M. 42) (3 M. 24). (d) Co. Litt. 282, b. Matthews v. Carey, 3 Mod. 137. 1 Salk. 107. 1 Shower, 61, S. C. Com. Dig. Pleader, (E. 17). 1 Saund. 297, note, 5th edit. (e) Briton v. Cole, Carth. 443. 1 Salk. 408, S. C. Com. Dig. Pleader, (3 M. 24). (f) Turner v. Felgate, 1 Lev. 95. Cotes v. Michill, 3 Lev. 20; and so as it seems a person acting in his aid. Grant v. Bagge, 3 East, 133. Breton v. Cole, 1 Salk. 409. (g) Philips v. Biron, 1 Str. 509. Smith v. Bouchier, 2 Str. 994. Middleton v. Price, 2 Str. 1184. (h) Middleton v. Price, 2 Str. 1184. Rowland v. Veale, Cowp. 20. (i) Freeman v. Blewitt, 1 Ld. Raym. 633. 1 Salk. 409, S. C. Rol. Ab. 563, 1. 25. Cowp. 21. the justification, in which case it may be necessary to shew to the court the return of the prior writ, to warrant the issuing of the other. (a) In justifying under the process of an inferior court considerable strictness is required, 1. The jurisdiction of the inferior court must be stated, even where the plea is pleaded by an officer of the court. (b) 2. It must appear, where the plea is pleaded by the party, or by a stranger, that the cause of action below arose within the jurisdiction of the inferior court, though it seems not to be necessary for the officers of the court below to make this averment, because they are punishable if they do not obey the process of the court. (c) Merely stating in the plea the declaration in the court below, which contained an averment, that the cause of action arose within the jurisdiction, is not sufficient, for such averment is not traversable (d); but it is not necessary to set forth the cause of action. (e) 3. Formerly it was held to be necessary to set forth the proceedings of the inferior court at length (f), but now they may be set out shortly with a taliter processum est. (g) In justifying under a capias ad respondendum, a precedent summons ought to be shewn, for a capias in the first instance without a summons is illegal. (h) However, when it appears that the plaint was levied at one court, and that such proceedings were thereupon had, that the capias issued at a subsequent court, it will be intended on demurrer, that the proceedings were regular, though no summons be stated (¿); but such intendment cannot be made where it is stated that the capias issued at the same court at which the plaint was levied. (k) In justifying an entry into a dwelling-house by virtue of legal process, in a civil suit, there is a distinction between entering the house of the party against whom the process has issued, and that of a stranger, and between the breaking of an outer door and of an inner door. (a) Hoe's case, 5 Rep. 90. Rowland v. Veale, Cowp. 18. Cheasley v. Barnes, 10 East, 73. (b) Moravia v. Sloper, Willes, 37. Morse v. James, Willes, 128. (c) Moravia v. Sloper, Willes, 34, 37. Evans v. Munckley, 4 Taunt. 50. (d) Adney v. Vernon, 3 Lev. 243. See 2 Bing. 218. (e) Rowland v. Veale, Cowp. 18. Cowp. 19. (g) Rowland v. Veal, Cowp. 18. (h) Marpole v. Basnett, Willes, 58, Of the plea. Under legal process. Of the plea. Under legal process. With regard to the house of the party against whom the process has issued, the justification of the officer does not depend upon his finding or not finding the defendant's goods there, for the most probable place to find the goods of the defendant is the house in which he dwells (a); and for the same reason the sheriff may justify under a fi. fa. against the goods of an intestate in the hands of his administratrix, or of her and her husband, an entry into the house of the husband (the outer door being open) to search for the goods, though none be found therein. (b) So also bail above may justify the breaking and entering of the house of a person in which their principal resides, (the outer door being open) in order to search for the principal for the purpose of rendering him. (c) The officer cannot, however, justify breaking open the outer door or window of the house of the party against whom the process issues (d), and, if the outer door is open, and he enters into the house, he cannot justify breaking open the inner doors without making a previous demand (e), unless the goods or the defendant be in the inner room, in which case no demand appears to be necessary. (ƒ) But, in entering the house of a stranger, the sheriff's justification depends on the fact of the goods or the person against whom the process is directed being found there. (g) If the sheriff has entered the house of a stranger (the outer door being open) he may justify breaking open the inner doors, provided the goods or the person against whom the process has issued be in the inner room (h), but he cannot justify the breaking open of the inner doors of a stranger's house without request made, upon suspicion that the party against whom the process is directed is within. (i) With regard to the outer door of a stranger's house, there is a distinction between it and the outer door of the (a) Per Gibbs, C. J. Cooke v. Birt, 5 (b) Ibid. 1 Marsh. 333, S. C. 251. (e) Ratcliffe v. Burton, 3 Bos. and Pul. 223. (ƒ) Hutchinson v. Birch, 4 Taunt. 625. 3 Bos. and Pul. 229. (g) Cooke v. Birt, 5 Taunt. 770. 2 Lutw. 1434. Com. Dig. Execution, (C. 5). (h) Hutchinson v. Birch, 4 Taunt. 619. 6 Tauut, 248. (i) Johnson v. Leigh, 6 Taunt. 246. 1 Marsh. 565, S. C. defendant's own house, for where the party against whom the process has issued takes refuge in the house of another, or his goods are conveyed into such house, in such cases, after denial on request made, the sheriff may break into the house, for the privilege as to the outer door extends only to the owner of the house and his family, and to his proper goods. (a) In the case of a misdemeanor, a person cannot justify breaking open the outer door of the dwelling house of the party charged with the misdemeanor, without a previous demand of admittance. (b) A., an excise officer, applied to the commissioners of excise for a warrant to search the house of B. The commissioners, being satisfied with the reasonableness of his suspicions, granted a warrant, empowering A. to enter the house of B., and seise all the run tea which should be there found fraudulently concealed. A. accordingly entered B.'s house in the daytime, and broke open a lock which B. had refused to open, and rummaged his goods, but did not find any tea. In an action of trespass brought by B. against the officer, it was held, that upon the true construction of the statute 10 Geo. 1, c. 10, s. 13, the officer was justified, although there was not any tea found, or any evidence given of the grounds of his suspicion. (c) If the defendant has committed the act complained of by the licence of the plaintiff, either in fact or in law, such licence must be specially pleaded (d), and so if the plaintiff relies upon a licence in answer to the defendant's plea, it must be specially replied. (e) A licence, being an easement merely, and not an interest in land, is not within the statute of frauds, and needs not to be in writing. (f) It may be presumed, as where an enclosure having been made from a waste twelve or thirteen years, and seen by the steward of the same lord from time to time without objection made, it was left to the jury to say whether or not the inclosure was made by the lord's licence. (g) So where A. suffers B. to build a nuisance (a) Semayne's case, 5 Rep. 93, a. 2 Hale, P. C. 117. S Bos. & Pul. 230. (b) Launock v. Brown, 2 B. and A. 592. (c) Cooper v. Booth, K. B. on error from C. P. 3 Esp. N. P. C. 135, overruling Bostock v. Saunders, 2 W. Bl. 912. 3 Wils. 434. (d) Bennett v. Allcott, 2 T. R. 166. (g) Doe d. Foley v. Wilson, 11 East, of the plea. Under legal process. Of licence. How a licence may be created Of the plea. Of licence. By whom. To what it ex tends. on his (A.'s) land, it shall be presumed to be done with A.'s licence and consent, and therefore A. shall not, it is said, abate it. (a) The keeping open of the doors of a house, in which there is a public billiard-room, is a licence in fact to all persons to enter for the purpose of playing. (b) A licence by a servant is no plea (c), nor by a wife (d), nor by a daughter. (e) A licence includes as incident to it, a power to do every thing, without which the act licenced cannot be done. Thus, if A. licences B. to enter his house to sell goods, B. may take assistants, if necessary, for the purpose of selling the goods, and, if it be pleaded, that B., and also C. and D., his servants, and by his command, entered for that purpose, and necessarily continued there for so long, it will be intended, that it was necessary for them all to enter. (f) So a licence to lay pipes in another's land to convey water, includes as incident to the licence, a right to enter and dig the ground in order to repair the pipes, although such power is not expressly given. (g) There is said to be a distinction between a licence for pleasure and for profit, the former is said to be merely personal, while the latter entitles the party to take other persons along with him. (h) A licence to one to hunt and carry away deer is a licence as to the hunting and killing, and a grant as to the carrying away. (i) A licence to hunt does not give a right to shoot. (k) An authority from a tenant to his landlord, in the absence of the former to let the premises, does not justify the landlord in entering the premises (the key being lost) through a window by means of a ladder, in order to shew the house. (4) |