Symons v Hearson and Fisher
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 1823 |
| Date | 14 June 1823 |
| Court | Exchequer |
English Reports Citation: 147 E.R. 750
IN THE COURT OF EXCHEQUER
[369] stmqhs v. hearson and fishir. Thursday, 5th June, Saturday, 14th June : 1823.-Pleading (with reference to evidence). Trespass for breaking arid entering a dwelling-house, and taking away goods, brought by a Plaintiff against Defendants who professed to be authorized to take away the goods of a person who had lodged in the Plaintiffs house, and had left the occupation without paying part of a year's rent, under pretext of a bill of sale executed by the tenant to the Defendant's employer by the vendee, by whom they were engaged to lot and carry them away.-Second count, for carrying away the goods and assaulting tire Plaintiff.-Pleas-Not guilty; 2dly, Leave and licence as to the breaking and entering; 3dly, As to the taking and carrying away, that the goods, c. were the property of a third person, whose authority the Defendants had for removing them; 4thly, Son assault demesne ; 5th, Justification, whilst protecting the possession of the goods.-Verdict for Plaintiff 291. 5s.-201. damages for the assault, and 91. 5s. for the rent.-1. Held the verdict sustainable on the whole Casey and not to be disturbed; although, in explaining their assessment of the damages, the Jury had not given a good reason ; for, if bad (though semble not) for the 91. 5s., it would be good for the 201.-2. As to the form of action, trespass tar the taking, &c. not objectionable under the circumstances of the case; but night be maintained by the Plaintiff on such a possession aa he had, although he fead not actually distrained them, the Plaintiff being entitled to a species of lien on the goods of the party in his custody, under the circumstances.-3. On the other bend, the property in the goods transferred by the bill of sale to the assignee of the Plaintiffs tenant, subject to such a lien, is not such an interest as would support a plea, by way of justification of the alleged assault, that the assault was committed in the protection of the Defendant's rightful possession, under the; circumstances.-4. Plea of leave and licenee to trespass, for breaking and entering, &e, under the circumstances in evidence, rebutted by the replication Da injun'4 absque tali causa, without replying or new assigning excess; the principle being, that such replication traverses the Defendant's justification to the extent pleaded.-The questions raised by the issues on the pleas are rather questions for the Jury applying the evidence to the pleadings, under the direction of the Judge at Nisi Prius, than for the Court applying the evidence to the pieadfngs in hank after verdict, on occasion of application for a new trial.- Practice The Court will not order a verdict to be entered for the Defendant on any given count, after disposal of a motion for a new trial. ]FEespais, [This action was tried before Mr. Justice Burrough, at the last Summer Assizes for Devon. Tbe declaration stated, that Defendants, with [370] force and arms, broke and entered a-certain dwelling-house of the said Plaintiff, situate, &c.; and then and there made a great noise and disturbance therein, and stayed and continued a long 'spacje ef time ften hours); and also, during, Ac. seized and took divers goods and chattels, to wi^ &@. of great value, to wit, Ac. and carried away the same, and converted and disposed thereof te^ their own ase; by rneaasof which said premises the said Plaintiff and hw family* were, during all the time aforesaid, not only greatly disturbed and annoyed iit the peaceable possession of the said dwelling-house, but also he the said * See The Attorney (General v. Phillips, vol. xiii. p. 592. 8YMONS V. HE ARSON 751 Plaintiff was, during all that time, hindered and prevented from carrying on and transacting therein his lawful and necessary affairs and business, to wit, at &o, 2d count, for an assault and de honis aaportatis. Pleas : 1st plea-Not guilty. 2d plea-As to the breaking and entering charged in the first count, &c. leave and licence. 3d plea-As to the seizing and taking, and carrying away the goods and chattels in the second count of the declaration mentioned,-that the said goods and chattels were the proper goods and chattels of one Oliver Veale, and that [371] the Defendants, as the servants and by the command of the said Oliver Veale, at the said several times when, &c. committed the said supposed trespasses in the introductory part of the plea mentioned, as they lawfully might, for the cause aforesaid 4th plea-As to the assault and beating, Son assault demesne, and that the Plaintiff' would have beaten, &c. if the Defendants had not defended themselves, &e.; and that, in so doing, the Defendants did a little beat Plaintiff, &c. 5th plea-As to the assault and beating supposed to have been committed by the said Defendants, that the Defendants were lawfully possessed of certain goods, and, being so possessed thereof, the said Plaintiff, with force and arras, and without the licenae or permission, and against the will of the said Defendants, did endeavour and attempt forcibly to obtain and get possession of the said goods, and would then and there, wilfully and forcibly, with a strong hand, have effected and accomplished such wilful attempt and endeavour, without the licence or permission of the said Defendants, and against their will, if they the said Defendants had not defended their said possession of the said goods and chattels; whereupon they the said Defendants did, at the said time when, &c. in the said last count mentioned, defend their the said Defendants' possession of the said goods and chattels, arid oppose and resist the said attempt [372] and endeavour of the said Plaintiff, as it was lawful for them the said Defendants to do on the occasion aforesaid. And the said Defendants further say, that if any damage or injury then and there happened to the said Plaintiff, the same happened of the wrong of the said Plaintiff, and in the defence by the said Defendants of their possession of the said goods and chattels. And this they the said Defendants are ready to verify, wherefore, &c. The Plaintiff, in his replication, joined issue on the first plea. As toi the second, third, fourth, aad fifth, De injuria sua propria absque tali causa, on which, issue was joined. The Jury, on the trial, found a verdict for the Plaintiff, damages 291. 5s,; which they stated to be made up of 201. for the assault, and 91. 5s. for the rent. In the course of last Michaelmas Term, Wilde, on the part of the Defendants, moved for a new trial, on the grounds that there had been a misdirection of the Jury ; that the verdict was contrary to the evidence, in that, whilst it did not support the counts in the Plaintiffs declaration, it sustained and established the Defendants' pleas; and that, for want of a proper replication, the verdict was not warranted by the pleadings on the record, and was in itself so [373] loose as to be unintelligible, and therefore...
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