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1832.

DOE dem.
PEARSON

V.

RIES.

giving further security, but not of deferring the interest to be acquired, unless where the terms of the future lease are left in uncertainty. Here the terms of the lease may be said to be comprised within the four corners of the agreement; for reference is there made to a lease in the possession of the grantors, the terms of which are to be transferred to the lease to be granted to the lessor of the Plaintiff.

Rule discharged.

Jan. 25.

ANTHONY V. HANEYS and HARDING.

Trespass for TRESPASS. The declaration stated, that Defendants, on the 8th of November 1830, and on divers other days &c. between that day and the commencement of the suit, broke and entered Plaintiff's close at Much Haddon in the county of Hertford; and with and that they feet in walking trod down, trampled upon, and con

entering Plaintiff's close. Plea, that certain goods of Defendants' were there,

entered to

take them,

doing no unnecessary damage: Held, ill.

sumed and spoiled Plaintiff's grass, and with cattle and wheels of divers carts, &c. crushed, damaged, and spoiled other grass; and with the feet of the cattle and the wheels of the carts subverted, &c. the earth and soil of the close, and then and there put, placed, and laid down divers quantities, to wit, 5000 bricks, &c. in and upon the said close, and kept and continued the same without the leave or license and against the will of the Plaintiff, and thereby greatly encumbered the close, and pulled down, prostrated, and destroyed one barn, three outhouses, and three leantos of Plaintiff, and in so doing dug up and subverted the earth, and made divers holes therein, and seized, took, and carried away the materials of the said barn, outhouses, and leantos.

There

There was a second count for seizing, taking, and carrying away a cart, and divers goods and chattels of Plaintiff; and a third count, for breaking and entering a certain other barn, outhouses, and leantos of Plaintiff, &c.

Plea, first, the general issue, on which issue was joined; second, that before and at the said times when, &c. in the said first count mentioned, the Defendant John Haney was the owner of and entitled unto a certain barn, three outhouses, and three leantos, and divers goods and chattels, to wit, 10,000 bricks, 10,000 tiles, 5000 planks of wood, 5000 joists, 5000 ties, 5000 girders, 5000 pieces of wood, 5000 loads of timber, and 1000 weight of iron, of great value, to wit, of the value of 2001. then respectively standing and being in and upon the said close of the said Plaintiff in which, &c.; wherefore the said Defendant, John Haney, in his own right, and James Haney and Joseph Harding, as the servants of the said John Haney, by his command, at the said several times when, &c. in the said first count mentioned, entered into and upon the said close in which, &c. in order to pull down, remove, take, and carry away the said barn, outhouses, and leantos, and to take and carry away the said goods and chattels, and did then and there pull down the said barn, outhouses, and leantos, and did take and carry away the materials thereof, and the said goods and chattels, in the said carts, waggons, and other carriages drawn by the said cattle, from and out of the said close in which, &c., and in so doing, they, the said Defendants, at the said several times when, &c. in the said first count mentioned, did necessarily and unavoidably with their feet in walking, a little tread down, trample upon, consume, and spoil a little of the grass there then growing and being, and did, with the wheels of the said carts, waggons, and

1832.

ANTHONY

V.

HANEY.

other

1832.

ANTHONY

V.

HANEY.

other carriages, a little crush, damage, and spoil other the said grass there also growing, and with the feet of the said cattle, and with the wheels of the said carts, waggons, and other carriages did a little subvert, damage, and spoil the earth and soil of the said close, and did necessarily and unavoidably put, place, and lay in and upon the said close in which, &c. the said bricks, tiles, wood, and rubbish in the said first count mentioned, being part of the materials of the said barn, outhouses, and leantos, and there keep and continue the same for a short time, to wit, until the same could be put in the said carts, waggons, and other carriages to be removed from the said close, doing no unnecessary damage to the said Plaintiff on the occasions aforesaid, as they lawfully might for the cause aforesaid, which are the said several supposed trespasses in the introductory part of this plea mentioned. Demurrer and joinder.

Stephen Serjt. was to have argued in support of the demurrer, but the Court called on

Bompas Serjt. to support the plea.

Although, without licence or lawful warrant, a man cannot enter the house of another, because every man's house is his castle, yet he may enter the close of another to recover his own goods, provided he be guilty of no breach of the peace; and the authorities, if any, which militate against this position are founded on a misconception or misapplication of the case of Tayler v. Friskin (a), where a plea that the defendant entered the plaintiff's house by leave of his wife, to take goods sold to him by the wife, was held ill. But with regard to a

(a) Cro. Eliz. 246. See also Holdringshaw v. Rag, Cro. Eliz. 876. as to license by a ser

vant; and Higgins v. Andrews, 2 Roll. Rep. 55.

close,

close, supposing goods to be lawfully on it,—and it is not to be assumed that they are there unlawfully,-the owner of the close is bound to permit the owner of the goods to enter and take them: he enters, therefore, under an

implied licence. In the present case the demurrer admits that the barns and outhouses belonged to the Defendant, and the Plaintiff not having averred that they were affixed to the freehold or unlawfully on the close, it must be taken that they were chattels, and lawfully there. Now, if trees be blown down, it is no trespass for the owner to enter the land into which they fall, to take them: Millen v. Hawery (a), Vin. Abr. Tresp. H. a. 2. So, if a fruit tree grow in a hedge, and the fruit fall into another's land, the owner may go upon the land and fetch it. Vin. Abr. Tresp. L. a. So, if a man is to lop his tree, and he cannot do it unless it fall upon the land of another, he may justify the felling of it upon the other's land; Dyke v. Dunstan. (b) In like manner he may justify chasing sheep upon another's ground if he cannot otherwise drive them off his own. Millen v. Fandry. (c) There, "the point singly was but this; I chase the sheep of another out of my ground, and the dog pursues them into another man's land next adjoining, and I chide my dog; and the owner of the sheep brings trespass for chasing them and it was argued by Whistler, of Gray's Inn, that the justification was not good, and he cited Co. lib. 4. 88. b. that a man may hunt cattle out of his ground with a dog, but cannot exceed his authority; and by him an authority in law which is abused is void in all; and to hunt them into the next ground is not justifiable. But per Crew C. J. It seems to me that he might drive the sheep out with the dog, and he

(a) Latch. 13.

(b) 6 Ed. 4. 18.
(c) Poph. 161. See Sutton
VOL. VIII.

v. Moody, 1 Ld. Raym. 250.
Churchward v. Studdy, 14 East,

249.

could

1832.

ANTHONY

HANEY.

1832.

ANTHONY

V.

HANEY.

could not withdraw his dog when he would in an in-
stant, and therefore it is not like to the case of 38 E. 3.,
where trespass was brought for entering into a warren,
and there it was pleaded that there was a pheasant in
his land, and his hawk flew and followed it into the
plaintiff's ground, and there it seems that it is not a
good justification, for he may pursue the hawk, but
cannot take the pheasant. 6 E. 4. A man cuts thorns,
and they fall into another man's land, and in trespass
he justified for it; and the opinion was, that notwith-
standing this justification trespass lies, because he did
not plead that he did his best endeavour to hinder their
falling there, yet this was a hard case. But this case
is not like to these cases, for here it was lawful to chase
them out of his own land, and he did his best en-
deavour to recall the dog, and, therefore, trespass does
not lie." The same principles are laid down in Com.
Dig. Pleader, 3 M 42. In the Year Book, 17 H. 6.
it is said to be a lawful cause to enter a man's park, to
shew him evidence to avoid a suit. In all such cases
the defendant may be said to have a sort of way of
necessity as where he pursues goods which have been
stolen. So, where a common highway is out of repair
by the overflowing of a river or other cause, passengers
have a right to go upon the adjoining land. Absor v.
French (a), Henn's case. (b) Or, if A. makes a lease for
years, excepting the trees which he would afterwards sell,
the law gives the lessor and those who would buy power
to enter and look at the trees, for without sight none
would buy, and without entry none would see. Lifford's
case. (c) And a man may enter the land of another to
abate a nuisance. Com. Dig. Pleader, 3 M 38.
If the defendant have no right to enter, he may be

(a) Show. 28.

(b) Sir W. Jones, 296.

(c) 11 Rep. 52 a.

without

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