that plea, on several grounds; and also demurred to the sixth on this ground (amongst others), that the excuse given in it for not making profert of the indenture of the 16th of July, 1832, was insufficient in law. Joinder in demurrer.

W. H. Watson, in support of the demurrer:

The excuse given in the sixth plea is not sufficient to dispense with the profert. If the party, in pleading a deed, states it to be in the possession of the opposite party, as in a writ of dower, if the tenant alleges a detinue of charters by the demandant, or where a man claims by statute merchant or statute staple, profert will be dispensed with: Wymark's case (1); or even if it be averred that the instrument was lost by time or accident: Read v. Brookman (2): but here it is only alleged that the deed was delivered to the plaintiff, without stating that it is now in his possession, or what has become of it.

(PARKE, B.: The excuse for the want of profert is clearly insufficient.)

Then the fifth plea is bad for several reasons; first, because the right of making this main road was a matter which lay in grant, and could only be conferred by deed, and not by parol; and the deed mentioned in the plea, as it appears on oyer, does not amount to a confirmation of any prior license by deed. Then, on another ground, it is a principle that every deed must be pleaded according to its legal effect and operation; now, this deed is pleaded as a grant and also as a confirmation, either of which would be a sufficient answer of itself; so that the plea is double and uncertain, and is bad on that ground also.

Hoggins, contrà:

It must be admitted that the sixth plea cannot be supported. But the fifth plea is good, as showing a license from a former owner of the close, which continues in force until notice is given of its revocation. Admitting that that license was countermandable by a subsequent conveyance of the close to the plaintiff, it is not competent to him to treat the defendants as trespassers, without first giving them notice of the conveyance, by the effect of *which their title to the easement is taken away, and to which (2) 3 T. R. 151.

(1) 5 Co. Rep. 75 a.

WALLIS

v.

HARRISON.

[541]

[ *542 ]

WALLIS

v. HARRISON.

[ *543 ]

they were neither parties nor privies. Webb v. Paternoster (1) is an authority to that effect. There the owner of a close had given a party a license to place a cock of hay upon it, until he should be able conveniently to sell it. The owner of the close subsequently leased it to the defendant for a term of years, who put in some cattle which eat the hay, for which trespass was brought. It was held by MONTAGUE, Ch. J., and HAUGHTON, J., DODDERIDGE, J., being of a contrary opinion, that the plaintiff, under such circumstances, was entitled to notice. If that be so, it was incumbent on the plaintiff to show that the defendants had had notice, and it was not for them to show that they had not. It is clear that the Dean and Chapter could not have maintained trespass against the defendants without notice; and it is difficult to see how any person who claims under them can be in a better situation.

Watson, in reply:

Webb v. Paternoster is distinguishable from the present case, as that was the case of a license executed here it is wholly executory. In Winter v. Brockwell (2), that distinction was taken, and it was there held that a license to put a skylight over an area could not be recalled at pleasure after it had been executed by the grantee. Hewlins v. Shippam (3) is an authority to the same effect. It would be absurd to hold that notice should be required; the party in the enjoyment of an easement is bound to take notice who is the owner of the inheritance.

LORD ABINGER, C. B.:

I am of opinion that the plea is bad on special and on general demurrer. It is an attempt to show a species of title, or to set up an excuse under colour of a deed, the precise operation of which is not sufficiently shown. If the deed had been executed before the plaintiff had any interest in the property, or had entered on the soil, it would have operated as a good defence as pleaded; because it is pleaded as a confirmation of a parol authority to make the rail-road, which had been given before the plaintiff had any interest in the close, and which would then have remained in force notwithstanding the change of property. But the plea does not show, with any distinctness, whether the deed was

(1) Palm. 71; Popham, 151; 2 Rol. R. 143.

(2) 9 R. R. 454 (8 East, 308).

(3) 31 R. R. 757 (5 B. & C. 221; 7 Dowl. & Ry. 783).

WALLIS

v.

executed before or after the plaintiff's interest in the locus in quo, and for that uncertainty is bad. Then, treating it as a plea of HARRISON. license, I think it is bad on general demurrer, because a mere parol license to enjoy an easement on the land of another does not bind the grantor, after he has transferred his interest and possession in the land to a third person. I never heard it supposed, that if a man out of kindness to a neighbour allows him to pass over his land, the transferee of that land is bound to do so likewise. But it is said, that the defendant should have had notice of the transfer. That is new law to me. A person is bound to know who is the owner of the land upon which he does that which, primâ facie, is a trespass. Even if this were not so, I think the defendants ought, in excuse of their trespass, to have pleaded the fact that they had no notice of the transfer. It is true, it would be the assertion of a negative, but I think this would be one of those cases where, to make a title or excuse good, a negative should be shown on the pleadings, even if the proof of the affirmative might be on the opposite party. As to the case of Webb v. Paternoster, the grant of the license to put the hay stack on the premises was in fact a grant of the occupation by the haystack, and the party might be considered *in possession of that part of the land which the haystack occupied, and that might be granted by parol.

PARKE, B.:

I am of the same opinion. If the justification is made to rest on a supposed grant from the Dean and Chapter, I think the plea is bad, because it does not state that the deed was executed before the plaintiff became entitled. Then, with regard to the license, the plea is bad in substance. We are not called upon in this case to consider, whether a license to create or make a rail-road, granted by a former owner of the soil, is countermandable after expense has been incurred by the licensee, which was the question in Winter v. Brockwell; for it is not alleged that there has been any expense incurred in consequence of the license, and therefore it remains executory: and I take it to be clear, that a parol executory license is countermandable at any time; and if the owner of land grants to another a license to go over or do any act upon his close, and then conveys away that close, there is an end to the license; for it is an authority only with respect to the soil of the grantor, and if the close ceases to be his soil, the authority is instantly

[ *544 ]

v.

WALLIS gone. Webb v. Paternoster is very distinguishable from this case, HARRISON. for there the license was executed, by putting the stack of hay on the land; the plaintiffs there had a sort of interest, against the licensor and his assigns; but a license executory is a simple authority excusing trespasses on the close of the grantor, as long as it is his, and the license is uncountermanded, but ceases the moment the property passes to another.

GURNEY, B., concurred.

Judgment for the plaintiff.

1839.

Exch. of
Pleas.
[ 567 ]

MONKS v. DYKES (1).

(4 Meeson & Welsby, 567–570; S. C. 1 H. & H. 418; 8 L. J. (N. S.) Ex. 73.) A plea, to trespass for assault and battery, that the defendant was in possession of a dwelling-house, and that the plaintiff disturbed him in his possession, wherefore he turned him out, is not sustained by proof that the defendant was a lodger, occupying one room in a house, the landlord keeping the key of the outer door.

TRESPASS for assault and battery. Plea, that the defendant was possessed of a dwelling-house, and that the plaintiff was making a noise and disturbance therein, and disturbing him in the possession thereof, wherefore the defendant molliter manus imposuit to remove him thence. Replication, de injuriâ. At the trial before Parke, B., at the last Somersetshire Assizes, the proof was that the defendant was a lodger, occupying one room in the house of a Mrs. Phillips, into which the plaintiff had intruded himself, and was turned out by the defendant. The landlady resided in the house, and kept the key of the outer door. It was objected for the plaintiff, that the allegation in the plea, that the defendant was possessed of a dwelling-house, was not sustained by this evidence. The learned Judge was of that opinion, but the case of Fenn v. Grafton (2) being cited as an authority to the contrary, the verdict passed for the defendant, leave being reserved to the plaintiff to move to enter a verdict for nominal damages.

Erle having obtained a rule nisi accordingly,

Crowder showed cause:

The replication puts in issue the material allegations of the plea

(1) Referred to by ERLE, Ch. J., in Cook v. Humber (1862) 11 C. B. (N. S.) 33, 47, 31 L. J. C. P. 73, 78; and see

Thompson v. Ward (1871) L. R. 6 C. P. 327, 40 L. J. C. P. 169.-R. C.

(2) 2 Bing. N. C. 617; 2 Scott, 56.

only; and if the substance of the plea be proved, so as to justify the act done by the defendant, he is entitled to the verdict. One of the allegations of the plea is, that the defendant is possessed of a dwelling-house; but if he be possessed of any portion of a dwelling-house which would justify his turning out a party who invaded his possession, that is a sufficient proof of the plea in substance. Fenn v. Grafton is precisely in point, and is even stronger than the present case, since there proof that the plaintiff was in the separate possession of two rooms of a house was held sufficient to satisfy an allegation that he was in possession of a messuage-which is a term having a strict legal import.

(PARKE, B.: It did not appear there that the plaintiff was a lodger, another person having the key of the outer door. The question was not whether a lodger could describe his room as a dwelling-house, but whether an admitted dwelling-house could be described as a messuage.)

TINDAL, Ch. J. says, that "if the declaration had stated that the plaintiff was lawfully possessed of a certain dwelling-house, there can be no doubt, upon the authority of Lord Coke, 3 Inst. 65, and many other authorities, the evidence would have supported the allegation."

(LORD ABINGER, C. B.: The judgment of the Court takes it for granted that there was such an occupation as made it a dwellinghouse.)

Independently of the authority of that case, this plea is proved in substance. The defendant clearly need not state all that he occupies. So, on the other hand, if he had said he was in possession of "certain apartments," and it appeared that he occupied one only, would not that have been sufficient? A dwelling-house is equivalent to that, for it must consist of one or more rooms; and it is sufficient if the party states himself to be in possession of that which necessarily includes the thing proved. There is no misdescription, as if it were land instead of house, or the like: the only question is, whether the subject is described with such reasonable clearness as that the other party cannot be misled. The distinction between natural and legal identity, and that the latter must be resorted to as the proper test of variance, is clearly stated by Mr. Starkie, 1 Evid. 371.

R.R.-VOL. LI.

46

MONKS

v.

DYKES.

[ *568 ]