FOULKES v. SCARFE, POLLARD, TOESLAND, BROWN, and

MASON.

To a declaration in case for breaking and entering rooms in the occupation of the tenant of the plaintiff, and tearing down the ceiling over the landing of the staircase, the roof over the same, and the chimneys, and demolishing the windows, the defendants justified under a deed of assignment, in trust for creditors, from C. H., (who was shown to be the lessee of the premises before the accrual of the title of the plaintiff, to whom color was given,) whereby a right of entry was given to take and sell furniture: Held, that the plea was bad, as confessing more than it avoided, inasmuch as the right to enter did not give a right to tear down the ceiling, &c., unless entry could be obtained in no other way; which was not averred. CASE. The declaration stated that certain rooms and apartments, parcel of a certain messuage, together with certain furniture, chattels, and effects, to wit, &c., of the plaintiff, were, on, &c., in the possession and occupation of a certain person, to wit, one Mary Stafford, as tenant thereof to the plaintiff, the reversion thereof then and still belonging to the plaintiff; which *M. S. held and occupied and possessed the said furnished rooms [*127 and apartments, and the use of a certain staircase and landings thereto belonging, with the appurtenances, as monthly tenant thereof to the plaintiff, upon and at a certain rent, to wit, &c., as and for the rent or hire of the said rooms and apartments, together with the said furniture, &c.; yet the defendants, well knowing the premises, but contriving, &c., to injure and aggrieve the plaintiff, and to deprive him of the benefit and advantage which he derived, and the just gains and profits which might, and would, have accrued to him from the letting of the said rooms and apartments, with the said furniture, &c., to the said M. S., and from the continued possession and occupation thereof by her the said M. S. as such tenant thereof to the plaintiff on the terms aforesaid, to wit, on, &c., wrongfully and injuriously broke and entered the said rooms and apartments, and then made a great noise and disturbance there, and then tore down and prostrated the ceiling over the landing of the staircase, and the roof over the same; and then tore down divers, to wit, two chimneys, and broke and demolished divers, to wit, ten glass windows, of and belonging to the said rooms and apartments; and then seized and took the said furniture, &c., from and out of the possession of the said M S.; and carried away, converted, and dis posed of the same to their own use; whereby the said rooms and apartments were rendered, and still are, of no use or value to the plaintiff; and the said rooms and apartments were rendered unfit for the residence and habitation of the said M. S., and the said M. S. was compelled and obliged to, and then did, quit and abandon the said rooms and apartments, and give up the same, and surrender the tenancy therein. By means of which several premises the plaintiff hath entirely lost the said several sums of money for the rent of the said rooms and apartments, with the ap- [128 purtenances, which would have accrued and have been paid to him, the plaintiff, if the said M. S. had not been so by the defendants intruded upon, disturbed, and annoyed, and forced and compelled to give up and quit the tenancy and occupation thereof; and during all the time from the day and year first aforesaid, hitherto hath been and still is unable to let the said rooms and apartments with the appurtenances, and is, by means of the committing of the several last-mentioned grievances by the defendants as aforesaid, otherwise greatly injured and aggrieved in his reversionary estate and interest in the said rooms and apartments, and in the said goods, &. Whereupon, &c

Fourth plea, as to the supposed grievances in the declaration mentioned,so far as the same relate to, and were occasioned by, the said breaking and entering the said rooms and apartments, and making the said noise and disturbance therein, and tearing down and prostrating the said ceiling and roof, and tearing down the said chimneys, and breaking and demolishing the said glass windows,-the defendants Scarfe, Pollard, Browne, and Mason say that long before the plaintiff or the said M. S. had any thing in the said rooms and apartments, or any of them, to wit, on the 29th day of September, 1834, one Winckworth and Sandys were seised, in their demesne as of fee, of and in the said messuage, and of and in the said rooms and apartments, staircase, and landing, and being so seised, by a certain indenture of lease, then made between the said W. and Sandys of the one part, and one Charles Hallett of the other part, the said W. and Sandys demised the said messuage, and rooms and apartments, staircase and landing, to the said C. H. for twenty-one years, &c.; (Averment of entry by C. H.;) and the defendants, Scarfe, Pollard, Browne, and Mason further say, that the said C. H. after the making of the said indenture, and

whilst he was possessed of the said messuage, and rooms and *129] apartments, staircase and landing, to wit, on the 29th of June, 1840,

was also possessed of divers goods, chattels, furniture, fixtures, and effects, in and upon the said messuage, and in the said rooms and apartments, staircase and landing; and that afterwards, and whilst the said C. H. was so possessed of the said messuage, &c., and of the said goods, &c., and before the times when, &c., to wit, on, &c., by a certain indenture, bearing date the day and year last aforesaid, then made between the said C. H. of the first part, the defendant Scarfe and one J. S. Nettlefold of the second part, and the several other persons, creditors of the said C. H., who had subscribed their names thereto, of the third part; and which indenture, &c., (profert,(a)) after reciting that the said C. H. was indebted to the several persons, parties to the said indenture of the second and third parts, in certain sums of money, and was not prepared to satisfy the same, and that several of the creditors of the said C. H. had threatened proceedings against him to recover their claims, of whom the said C. H. had requested a letter of license, which the said creditors had consented to give upon the said C. H. executing the bill of sale thereinafter contained,-in pursuance of the said agreement, and in consideration of the said debts and of the letter of license thereinafter contained, he the said C. H., at the nomination and request of the several parties thereto of the third part, testified, &c., did by the said indenture assign and transfer unto the said Scarfe and J. S. N., as trustees for themselves and the rest of the said creditors of the said C. H., all and singular the said furniture, fixtures, and effects in and about the said dwelling-house, and in the said rooms and apartments, stair*130] case and landing, in which, &c., mentioned and comprised in a certain inventory in the said indenture mentioned, and of which he was so possessed as aforesaid, and all right, title, and interest of him the said C. H. in and to the same and every part thereof, and of which possession had, at the time of the execution of the said indenture, been given and transferred to the defendant Scarfe and the said J. S. N., as the said C. H. did by the said indenture acknowledge: to have, receive, take, and enjoy the same unto the defendant Scarfe and the said J. S. N., their executors, &c., thenceforth, as and for their own goods, &c., but subject to the covenants

(a) In the Common Pleas the usual course is to make profert at the end of the declaration of all the deeds which have been set out, and of which the defendant is entitled to oyer.

thereinafter contained. And the said C. H. did thereby, for himself, his heirs, &c., amongst other things, covenant with the defendant Scarfe and the said J. S. N. that he the said C. H. would pay to the defendant Scarfe and the said J. S. N., as such trustees as aforesaid, the sum of 1207. in part payment of the said several debts mentioned in the schedule thereunder written, on the 26th day of July then next, and the further sum of 93l. 6s. 8d. on every succeeding third month, until the whole of the several amounts due and owing to the parties thereto of the second and third parts should be fully paid, with interest thereon at the rate of 51. per cent. per annum; provided always, and it was thereby further agreed between the several parties thereto, and particularly by the said C. H., that the defendant Scarfe, and the said J. S. N., their executors, &c., should, at any time during the continuance of the said indenture, be at liberty to enter upon the said messuage, and see the state and condition of the said several articles of furniture, fixtures, and effects; and that in case the same or any part thereof should be removed from the said messuage, or in case the rent of the said messuage, or any part thereof should be in arrear for more than six months, or the rates, taxes, or other outgoings, of the said mes[*131 suage, or any part thereof, should be in arrear for the space of seven months after the same respectively should have become due, or in case he the said C. H. should not pay the said instalments, and each and every of them, in manner thereinbefore appointed, or in case the said C. H. should suffer an execution to issue against him for any debt contracted subsequently to the execution of that indenture, and should not, in due time, pay out the same, or should petition to go through the insolvent debtors' court, or should become bankrupt, or should die, then in each or any of the said cases the defendant Scarfe and the said J. S. N., their executors and administrators, should be at liberty to sell and dispose of the said furniture, &c.; and, for that purpose, to enter the said messuage, and rooms and apartments, staircase and landing, in which, &c., and remove the same; and out of the produce thereof, after paying the expenses of and incident to such sale, to pay all rent, rates, taxes, and outgoings, if any, which might have accrued due; and, in the next place, to pay the several creditors, parties thereto of the second and third parts, ratably, and in proportion to their several debts, and to pay the surplus, if any, to the said C. H., or his assigns. And further, that afterwards, and before the said times when, &c., to wit, on the 1st day of February, 1841, all the estate and interest, property, term of years then unexpired, of and in the said messuage, and rooms and apartments, staircase and landing, by assignment thereof, then came to and was vested in the plaintiff; and thereby the plaintiff became and was entitled to the said estate in the said declaration mentioned. And further, that after making of the last-mentioned indenture, and before the committing of the said grievances, &c., the said sum of 1207. by the said indenture so payable as aforesaid became due and payable from the said C. H. to the defendant Scarfe and the said J. S. N., but [*132 the said C. H. did not nor would pay the same, and the said C. H. then made default in payment thereof. And further, that at the said times when, &c., the said sum of 1207. remained due and unpaid. And because the said goods, &c., so bargained, sold, &c., as aforesaid, before and at the times of the committing of the said grievances, were in and upon the said messuages, rooms, &c., and because the defendant Scarfe and the said J. S. N. were desirous to sell and dispose of the said goods, &c., and seize and take the same for that purpose; and because the said M. S., at the

said times when, &c., refused, upon being requested by the defendant Scarfe so to do, to suffer or permit, and would not suffer or permit him to enter into or upon the said rooms and apartments, or the said staircase or landing, for the purpose of seizing and taking from and out of the same the said goods, &c., so that the defendant Scarfe and the said J. S. N. might sell and dispose of the same, -the defendant Scarfe, in his own right, and the defendants Pollard, Brown and Mason, as his servants, and by his command, at the said time when, &c., for the purpose of seizing, and taking from and out of the said rooms and apartments, and from and out of the said staircase and landing, the said goods, &c., in order that he and the said J. S. N. might sell and dispose of the same, did break and enter into and upon the said rooms and apartments, and into and upon the said staircase and landing, and make a little noise and disturbance therein, and to a little and necessary degree, tear down and prostrate the ceiling over the said staircase and landing, and the roof over the same, and tear down the said chimneys, and break and demolish the said windows, and at the said times when, &c., did seize and take from and out of the said rooms and apart

ments the said goods, &c., doing and using no more damage or *133] violence than was necessary in that behalf, for the purpose of seizing and taking away the said goods, &c., for the purposes aforesaid, which are the same alleged grievances in the introductory part of this plea mentioned, &c. Verification.

Special demurrer; assigning for causes, that although the defendants Scarfe, Pollard, Brown, and Mason, profess to justify and answer the grievances in the declaration mentioned, so far as the same relate to and were occasioned by the breaking and entering the said rooms and apartments, and making the said noise and disturbance therein, and tearing down and prostrating the ceiling and roof, and tearing down the chimneys, and breaking and demolishing the glass windows; yet the plea does not show or state any matter that can in law justify the same, or authorize such violence and injury to the said ceiling, roof, chimneys, and glass windows, or any of them, or any part thereof. And also for that the defendants in their said plea do not show or state wherefore it was necessary, for the removal of the said goods and chattels, that they should tear down and prostrate the ceiling over the landing of the said staircase, and the roof over the same, or the said chimneys, or any of them. And also for that the plea attempts to put in issue matter of law, improper for the decision of a jury, by attempting to justify the tearing down and prostrating of the said ceiling, roof, chimneys, and glass windows, under a supposed authority, to wit, the said bill of sale; which is in law no justification of the last mentioned grievances. And also for that the said last plea is double, &c.

Bompas, Serjt., for the plaintiff. The plea sets up an authority under the bill of sale from Hallett to enter upon the premises and seize the goods there. But that is clearly no justification for breaking the ceiling and roof, *134] and breaking down the chimneys. The plea confesses the whole wrong alleged, but avoids only part. The defendants say they had a right to take the goods, and therefore they demolished the house. [TINDAL, C. J. Is not that rather matter of new assignment?] In a note to Greene v. Jones, 1 Wms. Sound. 295 c., 296, n, (1), where the declaration charged an assaulting, beating, and wounding of the plaintiff, and the plea was not guilty as to the wounding, and as to the residue a justification by arrest under process, and son assault demesne, the commentator observes, that the plea included "a justification both of the wounding and

beating charged in the declaration, because the plaintiff, after he was arrested, assaulted the defendant, and resisted him in the execution of his office; in which case it was lawful for him to wound and beat the plaintiff in his own defence, in order to enforce the process of the law."(a) And he adds, "but unless resistance, or an attempt to rescue himself be shown, the defendant cannot justify the beating, and still less the wounding, of the plaintiff in arresting him under process; but he must plead not guilty to the wounding and beating, and a justification as to the assault, otherwise the plea will be ill upon demurrer."(b) Here, the defendants have attempted to justify that which they show they had in law no justification for doing. The real question in this case is whether, because the party in possession *refused the defendants permission to enter, they were justified in pulling off the roof; the plea does not go on to say they could not enter in any other way. [TINDAL, C. J. It is something like the case,(c) where, in trespass for throwing the plaintiff off a ladder, the defendant justified in defence of his possession, the plaintiff being on the ladder, nailing a board to the defendant's house, and alleged that he gently shook the ladder, and gently overturned it, and gently threw the plaintiff from it on the ground, doing him as little damage as possible; and the plea was held bad on demurrer.](d)

{*135

Channell, Serjt., was then called upon to support the plea. The facts as to breaking the roof and pulling down the chimneys, are matters of aggravation and not of substance ;(e) the defendants say they had a right to break and enter, and they could not do so without a little breaking the ceiling and so forth; and this is a sufficient justification for all that is alleged.

TINDAL, C. J. It appears to me that the subject-matter of complaint, namely, the breaking down of the ceiling, roof, and chimneys, is so perfectly different in substance from the right claimed of entry into the rooms, that it behoves the defendants to show, much more distinctly than they have done, the impossibility of entry, except by the mode to which they resorted. The plea undoubtedly confesses more than it avoids. The case seems to me to fall within the principle of the one which I have cited.

The other judges concurred.

Judgment for the plaintiff.

(a) Citing M. 21 H. 7, fo. 39, pl. 51, S. C. Bro. Tresp. 218, Fitz. Tresp. 247, Cro. Eliz. 268, 2 Inst. 316, 1 Hawk. P. C. 130, 1 Bac. Abr. 155.

(b) Citing 1 Stra. 1049, S. C. Ca. temp. Hardw. 298, 1 Ld. Raym. 231, 2 Ventris, 193. The learned serjeant adds, however, " But perhaps it is not very material whether the arrest shall be considered as a justification of the battery or not. For if a bailiff, &c., do more than barely arrest a person,-if he beat him or otherwise ill-treat him after the arrest, without any resistance, or attempt made to rescue himself,--he is subject to an action; and if he justify by an arrest under process, the plaintiff may new-assign, which will bring it to much the same thing, 21 H. 7, 21, p. 5, 8. C. cited Lutw. 930, Patrick v. Johnson," 1 Wms. Sound, 296 But see note(a) in the fifth edition of Saunders.

(c) Pickering v. Rudd, 1 Stark, N. P. C. 56.

(d) Note in Collins v. Renison, Say. 138. See also Gregory et ux. v. Hill, 8 T. R. 299 Johnson v. Northwood, 7 Taunt. 689; Oakes v. Wood, 2 M. & W. 791; Oakes et ux. ▾ Wood, 3 M. & W. 150.

(e) Vide Taylor v. Cole, 3 T. R. 292; 1 Wms. Sound. 28 a; antè, vol. ii. 441.

*WATSON and Another v. HALCOMBE.

[*136 Where an application to a judge to set aside an execution is ordered to be referred to the master, the cost of the reference to be in his discretion, and the judge's order has been made a rule of court, it is not necessary to apply to the court for leave to issue execution on the master's allocatur as to such costs.