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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 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 disposed 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 appurtenances, 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, &c. 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 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
(a) In the Common Pleas the usual course is to make profert at the end of the
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 licence, 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 licence 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, staircase 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 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 1201. 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 931. 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, other outgoings, of the said messuage, 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
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 ontgoings, 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 Č. 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 1201. by the said indenture so payable as aforesaid became due and pay--able declaration of all the deeds which have been set out, and of which the defendant is entitled to oyer.
from the said C. H. to the defendant Scarfe and the said J. S. N., but 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 1201. 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 times 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 apartments the said goods, &c., doing and using no  more damage or 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 shew 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 shew 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, and breaking down the chimneys. The plea con--fesses 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. Saund. 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 demespe, 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” (b). And he adds, “but
(6) 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.
unless resistance, or an attempt to rescue himself be shewn, 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” (c)? Here, the defendants have attempted to justify that which they shew they had in law no justification for doing. The real question in this case is whether, because the party in possession re--fused 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 (Pickering v. Rudd, 1 Stark. N. P. C. 56), 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 (6).]
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 (c)2 ; 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 shew, 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.
 WATSON AND ANOTHER v. HALCOMBE. May 4, 1842. 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.
Shee Serjt. moved for liberty to issue execution against the goods of the defendant, for the sum of 11. 10s. with costs (a) under the following circumstances :
The defendant gave a cognovit to the plaintiffs for a debt. Judgment having been entered up and an execution issued, the defendant's goods were seized, whereupon the balance due to the plaintiffs was paid. The defendant, however, applied to a judge at chambers to set aside the execution, on the ground that more money than
(0)1 Citing 2 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 illtreat 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; S. C. cited Lutw. 930, Patrick v. Johnson.” 1 Wms. Saund. 296 (1). But see note (a) in the fifth edition of Saunders.
(6) Note in Collins v. Renison, Say. 138. See also Gregory et Ur. v. Hill, 8 T. R. 299; Johnson v. Northwood, 7 Taunt. 689; Oakes v. Wood, 2 M. & W. 791 ; Oakes et Ux. v. Wood, 3 M. & W. 150.
(c)2 Vide Taylor v. Cole, 3 T. R. 292; 1 Wms. Saund. 28 a.; ante, vol. ii. 441.
(a) Every writ of execution formerly issued, and is still supposed to issue, upon an award of execution by the court,  granted at the prayer of the party. By making such a prayer, in a case in which the courts now allow the successful party to issue execution for himself, he would submit to delay apparently for the purpose of fixing the adverse party with costs.
was really due to the plaintiffs had been paid to them. Coltman J. made an order referring it to the master “to see whether the debt, &c. had been overpaid ; the costs of and occasioned by the application to be in the discretion of the master;" which order was made a rule of court. The master found that the debt had been paid, but not overpaid, and allowed the plaintiffs, for the costs of the application, the sum of 11. 10s. Three applications had been made for that sum.
TINDAL C. J. There was no necessity for applying to the court in this case ; it is clear the plaintiff cannot have the costs of this application. The court will make no rule.
COLTMAN and ERSKINE JJ. concurred.
 CHARLES PALMER v. SPARSHOTT. May 4, 1842.
[S. C. 4 Scott, N. R. 743; 11 L. J. C. P. 204.]
By an agreement between A. of the one part, and B. and C. of the other part—reciting
that B. and C. had assigned certain property to A. for 1501. apiece, and that it had been agreed that A. should retain 501. out of each of the purchase moneys—the defendant, in consideration of the two several sums of 501., and 501. so retained, promised B. and C. to indemnify “them and their and each of their estates” from the costs of a certain action. Held that C. might sue A. alone upon this promise without joining B.
Assumpsit. After reciting that John Ewer Poole claimed to be a creditor of, and entitled to receive from, the defendant and the plaintiff, and from divers other persons, the sum of 1571. 18s. for work done in relation to certain premises at Norwood, wherein the plaintiff, the defendant, and the said other persons were severally and respectively interested, which money, if due at all, was due from the plaintiff, the defendant, and the said other persons jointly ; and further, that Poole had brought an action of debt against the now plaintiff for the recovery of the said sum ; and further, that it was then agreed by the plaintiff, the defendant, and the said other persons, that they the plaintiff, the defendant, and the said other persons should bear and pay in shares, any debt, and damages, costs, and expenses that might ultimately be recovered by Poole against the plaintiff ; and further, that the plaintiff had duly conveyed and assigned to the defendant the part, share, and interest of him the plaintiff, of and in the said premises at N., at and for the consideration of 150l. ; and further, that at the time of the completion thereof by the defendant and plaintiff, it was arranged that the defendant should retain 501. of the said purchase and consideration money of 1501., and release the plaintiff from any liability in respect of the said debt, &c., and expenses of  the said action; the declaration stated, that thereupon afterwards, in consideration thereof, and that the plaintiff, at the special instance, &c., had permitted and suffered the defendant to retain and keep, and that the defendant had retained and kept, 501. of the said purchase or consideration money of 1501., the defendant undertook, &c. to save harmless, and indemnify, him, the plaintiff of, from, and against all debt, &c. to be recovered and received by Poole in respect of the said action, or of any suit or proceeding to be instituted or taken by Poole in respect of the same; and further, that in case a sixth part of the whole amount of the damages, &c., to be in any way incurred in and about the said action, suit, or proceeding as aforesaid, or in relation thereto, should not amount to the sum of 50l., then the defendant, his heirs, &c., should pay or hand over to the plaintiff the difference in amount between the said sum of 501. and the amount of such respective sixth part of the said damages, &c., when the same should be ascertained. Averment—that the defendant did retain the sum of 501.; that Poole by the judgment of the court of Exchequer recovered against the plaintiff 1751. 15s. (prout patet); that Poole sued out a writ of testatum fi. fa. indorsed to levy the said sum, &c.; and that the plaintiff was compelled to pay the sum so recovered, with costs, &c., amounting to 1901. 58. ; of all which the defendant had notice, &c.
Plea: non assumpsit.