without remedy, for peradventure upon his demanding the goods the plaintiff may decline to make answer, or in anywise to stir in the affair, and without refusal on the part of the plaintiff as well as demand on the part of the defendant, trover will not lie. TINDAL C.J. The second plea in this case cannot be supported in law; and it is bad on a ground much short of that which has been argued to-day. The Defendant Haney states, as the ground of his right for entering the Plaintiff's close, that he was the owner of a certain barn, three outhouses, three leantos, and certain chattels standing and being on the Plaintiff's close, and then goes on to justify the trespass in question. I cannot collect from this statement but that the barn, leantos, &c. were standing on the close in the ordinary acceptation of the term, that is, were affixed to the freehold; and the rather, because the Defendant admits that he dug up the soil of the Plaintiff in order to remove the barn; in other words, that he entered the soil of another and broke it up to get what he claimed as his own. That would be to take the law into his own hands, and to render an action of ejectment unnecessary. If so, the plea which is bad in part, is, under the common rule, bad for the whole, and judgment must be given for the Plaintiff. But we are unwilling to decide the case on so narrow a ground; for even if the barn had not been affixed to the freehold, the Defendant has shewn on this plea no justification of bis entering to take it away. In none of the cases referred to has the plea been allowed, except where the defendant has shewn the circumstances under which his property was placed on the soil of another. Here the Defendant has confined himself to the statement that they were there, without attempting to shew how. To allow such a statement to be a justification O 2 1832. ANTHONY V. HANEY. 1832. ANTHONY V. HANEY. fication for entering the soil of another, would be opening too wide a door to parties to attempt righting themselves without resorting to law, and would necessarily tend to breach of the peace. Let us examine two or three of the cases which have been cited on the part of the Defendant. And first, that of fruit falling into the ground of another: that falls under the head of an accident, for which the defendant is not responsible, and which he shews by his plea before he can make out a right to enter. So in the case of a tree which is blown down, or through decay falls into the ground of a neighbour, the owner may enter and take it. But the distinction is taken by Latch, who says that if it had fallen in that direction from the owner's cutting it, he could not justify the entry. As to the cases where goods have been feloniously taken and the owner pursues to obtain possession, the principle is laid down by Blackstone (a), who says, "As the public peace is a superior consideration to any one man's private property, and as if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided, that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law." A case has been suggested in which the owner might have no remedy where the (a) 3 Comm. 4. occupier occupier of the soil might refuse to deliver up the property, or to make any answer to the owner's demand; but a jury might be induced to presume a conversion from such silence, or at any rate the owner might in such a case enter and take his property, subject to the payment of any damage he might commit. PARK J. I am of the same opinion. The distinction is clearly laid down by Blackstone in the case of goods feloniously taken, who says, "If my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law." Upon these pleas it rather appears that the property claimed by the Defendant was attached to the freehold, than that it was a chattel in the nature of a Dutch barn, for it is admitted that he dug holes in order to remove it. The Defendant is not, as it has been contended, without remedy, for he might, sue in trover after a proper demand, and if his application were met with continued silence, the jury might from that presume a conversion. BOSANQUET J. I am of opinion that this plea is no answer to the trespass with which the Defendant is charged. It is put broadly and nakedly that the Defendant has a right to enter the soil of another to take his own property without shewing the circumstances under which it came there. The case has been argued on the ground of necessity; but on that ground, at least the necessity should be shewn. There are, no doubt, various cases in which it has been held that the party is entitled to enter, but in all of them the peculiar circumstances have been stated on which the party has rested 1832. ANTHONY V. HANEY. 1832. ANTHONY V. HANEY. his claim to enter. It would be too much to infer that the party may enter in all cases where his goods are on the soil of another, because he may enter in some where he shows sufficient grounds for so doing. ALDERSON J. I am of the same opinion. The difficulty suggested as to an action of trover, would apply to all cases of trover where a demand is necessary. Judgment for Plaintiff. Jan. 27. A prisoner brought up under the compulsory clause of the Lords' Act, allowed time, on an alle gation that he had petitioned the insolvent debtors' court. In the Matter of PAYNE, a Prisoner. ANDREWS Serjt. had moved to proceed against the prisoner under the compulsory clause of the Lords' Act, when the Court gave time, upon the prisoner's alleging that he had petitioned the insolvent debtors' court. He was now brought up again, and Andrews renewed his application, on the ground that the insolvent debtors' court had rejected the prisoner's petition. It appearing, however, that the petition had been rejected for informality only, the prisoner prayed for further time; whereupon, Andrews contended, that the jurisdiction of this Court was not superseded by that of the insolvent debtors' court; and if the prisoner had further time allowed him, he might omit to proceed in the insolvent debtors' court, and so defeat the creditors altogether. Sed per Curiam. If the prisoner is fairly endeavouring to make a distribution of his funds among all his creditors, we ought, in the exercise of a judicial discretion, to allow him further time. 1832. MOUNT v. LARKINS. Jan. 30. allowed in costs in a po licy cause, to the master of a material the witness not examined, was a master THE questions to be tried in this cause were, the sea Subsistence worthiness of the ship Aguilar, and whether a voyage on which she had been insured had been entered on without unreasonable delay. The cause was appointed for trial on the 28th of a ship insured, October 1829, but was not tried till the 22d of April witness, from 1830, when a verdict was found for the Plaintiff; but a the time of subpana to rule was obtained for a new trial on the question of sea- the time of worthiness, and a special case was argued on the ques- trial, although tion of unreasonable delay. Judgment upon the latter resided in question having been given on the 25th of November England, was 1831 in favour of the Defendant, (see ante, 108), it became unnecessary for him to proceed to a new trial. Watson, the captain of the ship, had been subpoenaed by the Defendant on the 6th of October 1829, to give an permission of account of the delay in the voyage, one of the points the admiralty on which the Defendant rested his case. the taxation of costs the Defendant claimed 2197. paid merchant by him to Watson, for his subsistence from the 6th of service. October 1829 to November 25. 1831, alleging, that Watson had been detained after the trial in April 1830, to secure his attendance upon the new trial, for which a rule absolute had been obtained; and that in the beginning of 1831, he had refused an offer of employment in the merchant service in consequence of this detention. And upon The Plaintiff objected to the sum claimed for Watson, on the ground that he had not come from a place where he was out of the reach of a subpœna, but had, during the whole time in question, been living at Hackney; that he was an officer in the royal navy, receiving half-pay, and not allowed to engage in the merchant service with in the royal navy, and did not shew the for him to engage in the |