REPORTS OF CASES DETERMINED ON POINTS OF PRACTICE. COURT OF COMMON PLEAS. Easter Term. IN THE EIGHTH YEAR OF THE REIGN OF VICTORIA. ROBERTS v. TAYLER and Others. 1845. tion of trespass quare clausum fregit, con TRESPASS. For that the defendants, before the com- To a declaramencement of this suit, to wit, on the third day of January, in the year of our Lord one thousand eight hundred and forty-four, and on divers and very many other days and times between that day and the commencement of this suit, with force and arms, &c., broke and entered a certain dwelling-house of the plaintiff, situate and being, to wit, in taining a count for an assault; pleaded, inter alia, lib. the defendants tenem. in J.W., and a justifica tion, on that ground, of the trespass, and that because the plaintiff "was unlawfully in possession," the defendants, as servants of J. W., and by his command, ejected her; and in so doing, because she resisted, committed the assault. The plaintiff replied that she was lawfully possessed, and was lawfully entitled to her possession as against the defendants; with a special traverse, that the plaintiff was unlawfully in possession or occupation: Held, on special demurrer to the replication, that the plea was substantially one of liberum tenementum, and therefore bad, as attempting to justify an assault. The declaration also contained a count de bonis asportatis. The defendant pleaded inter alia, lib. tenem. in J. W., and that J. W. leased the premises to the plaintiff, with a proviso for reentry for non-repair: that the premises were out of repair, and that the defendants entered as the servants of J. W., and because the plaintiff was unlawfully in possession, &c. (as in the above plea); and also justifying the removal of the goods of the plaintiff, which were wrongfully placed on the premises, to a convenient distance, doing no damage to the same. The plaintiff replied as to so much of the plea as related to the last count in the declaration, that after the removal of the goods, the defendants converted them to their own use: Held, on special demurrer, that the replication was good. VOL. III. B D. & L. 1845. ROBERTS v. TAYLER and Others. the parish of Saint Leonard, Shoreditch, in the county of Middlesex, and long known by the description of number eleven, Winkworth Buildings, City Road; there and then made a great noise and disturbance therein; and stayed therein making such noise and disturbance for divers long spaces of time respectively next after the said times when they so broke and entered the said dwelling-house, to wit, for the space of three days next after each of these times: And also for that the defendants, before the commencement of this suit, to wit, on the eighth day of January, in the year of our Lord one thousand eight hundred and fortyfour, with force and arms, &c., amoved from the said dwelling-house of the plaintiff divers fixtures and things of the plaintiff then affixed thereto and belonging to the same, to wit, ten stoves, &c., of the value, to wit, of five hundred pounds, and then seized, took, and carried away the same, and converted and disposed thereof to their own use: And also for that the defendants, before the commencement of this suit, to wit, on the eighth day of January, in the year of our Lord one thousand eight hundred and forty-four, with force and arms, &c., ejected, expelled, put out and amoved the plaintiff from her possession and occupation of her said dwelling-house, and kept and continued her so expelled, amoved and put out thereof, up to and at the time of the commencement of this suit, and during such time took and had, and received to the use of the defendants, all the issues and profits of the said dwelling-house, being of great yearly value, to wit, of the yearly value of one hundred pounds, and caused and procured great damage, deterioration and injury, to the said dwellinghouse: And also for that the defendants, before the commencement of this suit, to wit, on the eighth day of January, in the year of our Lord one thousand eight hundred and forty-four, and on divers and very many other days between that day and the commencement of this suit, and several times on each of those days, with force and arms, &c., assaulted the plaintiff, and then beat, bruised, wounded, bit, and ill treated her: And also for that the defendants, with force and arms, before the commencement of this suit, to wit, on the third day of January, in the year of our Lord one thousand eight hundred and forty-four, seized and took divers goods and chattels of the plaintiff, to wit, thirty tables, &c., and two thousand other goods and chattels of great value, to wit, of the value of three hundred pounds, and then converted and disposed of the same to their own use, to the damage, &c. Fourth plea. And for a further plea to the whole of the said declaration, the defendants say that the said dwellinghouse in which, &c., at the said times when, &c., in the declaration mentioned, was, and now is the dwelling-house, soil, and freehold of one J. W.; wherefore the defendants, as the servants of the said J. W., and by his command in that behalf, at the said times when, &c., in the said declaration mentioned, broke and entered the said dwelling-house in which, &c., and committed therein the said several supposed trespasses in the said first count mentioned: and the said fixtures and things, in the said second count mentioned, were, at the said time, when, &c., part and parcel of the said dwelling-house, and of the said J. W.'s said freehold therein: and the plaintiff, just before, and at the said times when, &c., in the said third and fourth counts mentioned (to wit) on the said 8th day of January in the year of our Lord, one thousand eight hundred and forty-four, was unlawfully in possession and occupation of the said dwellinghouse, and with force and arms, making a great noise and disturbance therein without the leave or license, and against the will of the said J. W.; the defendants, thereupon, as the servants of the said J. W., and by his command in that behalf, then requested the plaintiff to cease making her said noise and disturbance, and to go and depart from and out of the said dwelling-house, which the plaintiff then wholly refused to do; whereupon the defendants, as the servants of the said J. W., and by his command, in the defence of his possession of the said dwelling-house, 1815. ROBERTS v. TAYLER and Others. 1845. ROBERTS v. TAYLER and Others. gently laid their hands on the plaintiff in order to eject, expel, put out and remove, and did then eject, expel, put out, and remove her from her possession and occupation of and from and out of the said dwelling-house; and because she, the plaintiff, then resisted the defendants in that behalf, and then assaulted the defendants, and used violent and menacing language and gestures towards the defendants, and would then and there have beaten, bruised, wounded, and ill treated them, if they had not defended themselves against the plaintiff; they, the defendants, at the said times when, &c., did defend themselves against the plaintiff, and in so doing did necessarily and unavoidably assault the plaintiff, and then a little beat, bruise, wound, bite, and ill treat her, doing no unnecessary damage to the plaintiff on the occasions aforesaid: and because the said goods and chattels in the said last count mentioned, before and at the said time when, &c., in that count mentioned, had been wrongfully put and placed, and then were wrongfully in and upon the said dwelling-house in which, &c., encumbering the same and doing damage there to the said J. W., the defendants as the servants of the said J. W., and by his command in that behalf, at the said time when, &c., in that count mentioned, seized the said goods and chattels, and took and amoved them from the said dwelling-house in which, &c., to a small and convenient distance, and there left the same for the plaintiff's use; whereof the plaintiff then had notice: which are the said several supposed trespasses in the declaration mentioned. Verification. Eighth plea. And for a further plea in this behalf to the first, third, and subsequent counts of the said declaration, the defendants say that long before the plaintiff was possessed of, or had any title, estate, or interest in the said dwelling-house, in which, &c., to wit, on the thirtyfirst day of March, in the year of our Lord one thousand eight hundred and thirty-seven, the said Josiah Wilson was scised in his demesne as of fee, of and in the said dwellinghouse in which, &c., and being so seised before the said times, when, &c., in the said first, third, and subsequent counts mentioned, or any of them, and before the plaintiff was possessed of, or had any estate, interest, or title of, in, or to the said dwelling-house, to wit, on the thirty-first day of March, in the year of our Lord one thousand eight hundred and thirty-seven, by a certain agreement then made between the said Josiah Wilson and the said Robert Roberts, the date whereof is the day and year last aforesaid, the said Josiah Wilson agreed to let, and did let to the said Robert Roberts, who then agreed to take, and did take the said dwelling-house in which, &c., as tenant thereof to the said Josiah Wilson, for one year then next following, and so on from year to year for so long as they should respectively please, the first year to commence from the twenty-fifth day of March then last past, at and under the yearly rent of fifty-five pounds, payable quarterly on the twenty-fourth day of June, the twentyninth day of September, the twenty-fifth day of December, and the twenty-fifth day of March in each and every year, by even and equal portions, and the said Robert Roberts thereby agreed with the said Josiah Wilson, to repair and keep in tenantable repair the said dwelling-house during the continuance of the said demise and tenancy; and it was thereby further agreed that if the said Robert Roberts should break the said agreement in any respect, or if he did not repair or keep in tenantable repair the said dwelling-house during the continuance of the said demise and tenancy, or if the said rent, or any part thereof should be unpaid fourteen days next after any day on which such rent, or any quarterly part thereof, should become due, then it should be lawful for the said Josiah Wilson to enter on the said dwelling-house without any ejectment or process at law, and to have again, and re-possess the same, and all occupiers thereof to expel and remove; by virtue of which said agreement and demise, the said Robert Roberts then entered into and upon the said dwellinghouse, and became and was possessed thereof for the said 1845. ROBERTS v. TAYLER and Others. |