1845.

HARVEY

t.

BRIDGES

either by description or abuttals. This declaration calls the attention of the defendants to the particular premises in which the trespass was committed. In Lambert v. Stroother (a), the and Others. question arose, whether the plea of liberum tenementum was good, when pleaded to a declaration which described the premises particularly; and Willes, C. J., in delivering judgment says, "In order to make the present case intelligible, and to shew the reason of our judgment, I shall consider a little, how these pleas of freehold in actions of trespass came to be at first introduced; for they seem a little absurd, and if they had not prevailed for so many years, but it was at present a new matter before the Court, I should be of opinion that it is not a good plea. For every plea in bar, (admitting the fact that is pleaded to be true) ought to be a full bar to the action; but this is plainly not so; for though the place in question be the defendant's freehold, the plaintiff may have a good cause of action; as if he hold by lease under the defendant, or under another person who conveyed the reversion to the defendant, or even though he has no right at all if he has been in quiet possession a great while, for in that case the person having a right must bring an ejectment and cannot enter upon him by force. But, notwithstanding this, as these pleas have so long obtained, it would be too much to overrule them generally, but I think even still in some cases they ought not to be held to be good pleas. The reason why they were at first introduced seems to be this; anciently most declarations of trespass were general, only for breaking and entering the plaintiff's close in such a place, without giving any name to the close; but now always in this Court, by reason of the rule made Michaelmas 1654, Book of Rules, p. 38 (and I believe most commonly in B. R.) the plaintiffs in their declarations in trespass set forth the names of the closes as the plaintiff has done in the present case. But formerly when a plaintiff only declared generally, it was thought a

(a) Willes, 218.

great hardship on a defendant to be obliged to answer such a general charge; for if the plaintiff had a large estate in the township the defendant could not tell in which of the closes he would assign his trespass, and therefore they gave the defendant leave to plead the general issue to oblige the plaintiff to make a new assignment, and ascertain the place in his replication: if he did not, and the defendant pleaded generally, as he might do, that the place in question was his freehold, the hardship would be turned on the plaintiff; for then if the defendant could prove any one place in the township to be his freehold, the plaintiff would be gone, as is expressly held in the case of Elwis v. Lombe, 6 Mod. 117, 118, and 119. And it is said in that case and likewise in several other cases that when the plaintiff is general in his declaration the defendant shall be allowed to be as general in his plea; these pleas are therefore called common bars, sometimes bars at large, and sometimes blank bars, as in Cro. Car. 384, Cro. Jac. 594......That this was the reason of these pleas originally appears from the words of the rule before mentioned, which says that for the future the declaration may mention the place certainly and so prevent the use and necessity of the common bar and new assignment. As these were the reasons for admitting such a plea as this, I doubt very much whether this be a good plea in the present case where the plaintiff has named the closes in his declaration. The reasons for this plea do not hold here; there is no hardship on the defendant, and the plaintiff has ascertained the place; nor can the plaintiff make a new assignment in his replication; if he did, it would be a departure in pleading. If therefore it were necessary in this case to give an opinion upon this point, I am inclined to be of opinion, (as at present advised) that the plea is not good." [Parke, B.-The plea was always considered an anomaly, but always admitted.] It is not a plea in justification of the alleged trespass, but is only used as the means of compelling the plaintiff to new assign, which he cannot do here. [Parke, B.-That makes no

1845.

HARVEY

v.

BRIDGES and Others.

1845.

HARVEY

v.

BRIDGES and Others.

difference; if the close is mentioned in the declaration, the defendant must prove his title to that particular close; if the close is not mentioned in the declaration, the plaintiff must new assign.] Where the close is not named, the meaning of the plea is this: "I am entitled to enter, as the freehold is mine." [Parke, B.-All that can be said is, that one hundred and five years ago, Willes, C. J., doubted whether the plea ought to be allowed, and it has been in constant use ever since. In one case the Court of Queen's Bench held, that you cannot go into evidence of title under the plea of "not possessed" (a). Alderson, B.-The plea would be equally anomalous whether the close is described in the declaration or not; in the one case the defendant says, "I have a close in the parish, and I suppose you are going for that;" in the other he says, "I know the close for which you do go, and that is mine."] It was never intended that this plea should be used for the purpose of raising an issue as to title, its only object being to put in issue the place in which the trespass was committed. [Parke, B.-The meaning of the plea is this: “I am entitled to enter because the close is my freehold; should the defendant make out a primâ facie right, the plaintiff must shew a lease if he have one; Cocker v. Crompton (b). If this plea were bad, it would have been demurred to long ago, in order that the parties might exonerate themselves from shewing title. Platt, B., referred to Cooke v. Jackson (c).] Secondly, assuming that this plea can be pleaded to trespass quare clausum fregit, it is not a good plea to a declaration for breaking and entering a dwellinghouse, and forcibly expelling the plaintiff therefrom. [Parke, B.-You assume a breach of the peace: consistently with this declaration, the defendant might have entered when the dwelling-house was empty. On this record you are not in a condition to raise the question argued in Newton v.

1845.

HARVEY

v.

BRIDGES

Harland (a); if it were intended to rely on a forcible expulsion, that should have been replied. All that the plaintiff would be bound to prove under this declaration, is, that the defendant entered the house.] It is questionable whether and Others. the plea justifies all that the plaintiff could prove under the declaration; the plaintiff cannot assign excess, since he cannot tell how much is justified. A distinction has always been made between an entry into a dwelling-house, and an entry upon land; Rex v. Storr (b). [Parke, B.-There is no allegation of any breach of the peace.] The allegation that the trespass was committed vi et armis, amounts primâ facie to a charge of a breach of the peace. [Parke, B.— No, it only implies that some degree of force was used, sufficient to enable the defendant to get into possession. In order to raise the question before the Court of Common Pleas in Newton v. Harland, you should have new assigned that the defendant entered in a violent and forcible manner, and in breach of the Queen's peace. The case of Lawe v. King (c), shews that the words "vi et armis," are only matter of form; the omission of which is aided on general demurrer by the statute 27 Eliz. c. 5; and that it is not necessary to give any answer to them in the plea.] In Leeward and Wife v. Basilee (d), which was trespass by husband and wife for an assault and battery of the wife, to which the defendant pleaded son assault demesne, and the plaintiffs replied, that the defendant was going to wound the husband, and that the wife "insultum fecit," to defend him. On demurrer it was argued, that "insultum fecit" was bad, and that the replication should have been "molliter manus imposuit," but the Court held otherwise. There it might have been said that it would not be presumed that the wife used more force than was necessary. The question on this record is, what amount of force is charged against the defendant. [Parke, B.-If issue had been taken on the vi et armis, the plaintiff would not be bound to prove any

(a) 1 M. & G. 644; See S. C.

1 Scott. N. R. 474.

(b) 3 Burr. 1698.

(c) 1 Saund. 76.

(d) 1 Salk. 407.

1845.

HARVEY

v.

BRIDGES

force. Were it necessary to decide the point, I should have no difficulty in saying, that if a freeholder, in order to get into possession of his land, assaults another who is not in legal and Others. possession, although the freeholder may be responsible to the public for having committed a breach of the peace, yet he is not liable to the other. I cannot conceive how it is possible to doubt that it would be a good justification to say, that the plaintiff was in possession of the land against the will of the defendant, who was the owner, and that he entered on it, and in so doing committed a breach of the peace. But the question does not arise. Alderson, B.I entirely concur with my Brother Parke, and I still retain the opinion which I expressed in Newton v. Harland.]

Hugh Hill, who was to have argued in support of the plea, referred to Reeve's History of the Common Law, vol. 2, pp. 340-343.

PER CURIAM.

Judgment for the Defendants.

Assumpsit by

the assignees of P., a bank

rupt, on a policy of insurance made by P. before

his bankruptcy. Plea as to 781., that the policy was

M'LEOD and Another, Assignees of PITCAIRN, a Bankrupt, v. SCHULTZE and Another (a).

ASSUMPSIT on a policy of insurance of a ship and goods for 20007, made by one Pitcairn, before his bankruptcy, with the Forth Marine Insurance Company, of which the defendants were directors.

(a) See this case, on demurrer to the plea, ante, vol. 1, p. 614.

made in Scotland, that the said sum was duly fenced and arrested according to the law of Scotland, at the suit of G., for a debt due to him; that thereupon the said sum became and was, according to the law of Scotland, in custody of the law; that afterwards G. obtained judgment, which was final and conclusive against P. and the plaintiffs as his assignees; and that by the law of Scotland all right and claim of P. to the said sum have been, and still are, by reason of the premises, wholly barred, defeated, and destroyed; and the plaintiffs, as assignees, never acquired any right or title thereto.

Replication, that the defendants broke their promise of their own wrong; without this, that all right and claim of P. to the said sum is wholly barred, and that the plaintiffs, as assignees, never acquired any right or title thereto: Held bad for duplicity.