HERNDON VS. BARTLETT, 4 Port. 481

GOLDTHWAITE, J. — Bartlett declaired against Herndon in the'Court below, for breaking and entering his stable and close, breaking and destroying locks, &c. and for taking and converting to his own use, a horse of a particular description, there found.

The declaration contains- two counts, which are in the usual form of trespass quare clausum fregit et de bonis asportavit, and are similar to each other ins every respect except this: In the first, the defendant below, is charged to have broken and destroyed, divers locks, staples and hinges, and to have taken and converted the horse — -and in the second, the breaking and destroying of the locks, &c. are omitted: in neither count, is the trespass charged to have been unlawfully done. The defendant below, pleaded, first — not guilty, on which issue was joined.

Second — To the first count of the declaration, a plea of liberum tenementum, in the usual form, as to the stable and close, but omitting to notice in any manner, the taking and conversion of the horse. Thirdly — A similar plea to the second count.

Fourth — To the first count, not guilty as to breaking the locks, staples and hinges, and as to other trespasses, justifying on the ground, that he had been and was a tenant, in common with the plaintiff, of the horse, under divers titles; that the plaintiff had, before the commission of the trespasses, appropriated the horse to his sole use, and excluded the defendant from any enjoyment or use of the same, and that he being such tenant in common, broke and entered the stable and close of the plaintiff, and took the horse,as he lawfully might, doing as little damage as was possible to the stable.

Fifth — Also to the first count — not guilty as to all the breaking and damaging of locks- staples and hinges, except one small lock; and as to that, and the entering the close and stable, and taking off the horse, the same justification as set forth in the fourth plea. Sixth — ‘To the second count, a justification as to' the breaking and entering the close and stable, for the same reasons as set forth in the two last mentioned pleas. To all these pleas, a demurrer was filed, and the Court below, gave judgment sustaining the same.

The cause was tried and a verdict found on the general issue, on which verdict and judgment were rendered for the plaintiff. The case is removed by the defendant below, to this Court by writ of error, and he now assigns in this Court for cause of reversal of the judgment of the Court below,"that it erred in sustaining the demurrer to the several pleas. The Court will first consider the fourth, fifth and sixth pleas; as the principles involved in each, are entirely similar to each other.

It is attempted to justify the breaking and entering the stable, andtaking off the horse, for the reason that the plaintiff and defendant were tenants in common, of the horse under divers titles, and because the plaintiff below, had excluded the defendant from the use of the horse, and had assumed the exclusive possession of the same, he was justified in regaining the horse, if he could, without a breach of the peace; and that so to do, he might, if necessary, enter the plaintiff's close, and break open the stable; provided he did the least injury possible, under the circumstances.

It is'true that one tenant in common, cannot maintain an action at law, against his co-tenant, for the taking of the chattel owned by them, unless the chat- , i i t tei be destroyed or so changed that the possession can never be regained. Seldon vs Hickock. — Holidays vs Camsell — Fennings vs Lord Greenville— Barnardiston vs Chapman — Martyn vs Knowllys.

But it does not seem to follow as a consequence, that one tenant in common, may invade the close of another, to take the chattel owned by them jointly, although that one might be in the exclusive enjoyment of it, and refuse to permit the other to participate therein; ■ A sole owner would not be permitted thus to right himself, by committing a trespass on the lands, or in the house of one who might wrongfully withhold his property. That a tenant in common has no sucli right, is fully established by authority, if authority ° f ^ / can be required to support a proposition, apparently so clear.

It seems plain that there is no sufficient justification set out in the fourth, fifth and sixth pleas, and that there was no error in sustaining the demurerrs as to them.

The second and third pleas are supposed to rest on ground peculiar to them alone; it is admitted that they do not justify, or attempt to justify, the taking of the horse; that the defence set up by them, goes however to. the whole gist of the action, which is con-* tended to consist solely in the breaking and entering the close, and that all the other matters stated in the count, are merely in aggravation of this trespass, and that it is consequently only necessary to answer the main charge.

The law is stated differently by two approved authors of treatise’ on pleading—Gould page 366, sustains the position that it is only necessary to answer as to the breaking and entering—while Chilly, page 497, maintains that is also necessary to justify, as to the asportation of the goods.

The authorities cited by the latter, have been examined, and do not bear him out in laying down such a rule: though, the rule itself seems a very reasonable one :—on the the other hand, Judge Gould seems fully supported by some of the authorities to which he refers—particu-, larly the case of Taylor vs Cole. in the first case cited, Mr.

Justice Buller, in his; opinion, fully sustains the position assumed by Judge Gould, and quotes a case as decided in the common pleas, where it was held that to an action of trespass, for taking and converting to the defendant’s use, a halter, it was a good plea to justify as to the taking alone, and if the plaintiff desired to make the conversion the gist of the action, he should have replied it by way of novel assignment. If this question was now, for the first time to be decided, we might feel a strong inclination to adopt the rule laid down by Mr.

Chilly, and also to reject the plea of liberum tenementum, as amounting to the general issue, according to the opinion of Chief Jus-^ tice Willes, in the case of Lambert vs Strother; s with him we concur, that it would be too much, to now overrule such pleas. It is, perhaps, better to follow precedent, in matters of pleading and practice, than to depart from known rules, although such rules may not receive our full assent to the reasons on which they are based.

Testing the second and third pleas, by the rules we have extracted, they would seem to be good, and .to contain a full answer to the several counts they assumed to answer; and if it was the desire of the plaintiff to recover damages for the conversion of the horse, he should have new assigned, if he could not controvert the pleas, as pleaded — or if the stable and close, in truth, were his freehold, or he was entitled to the possession of the same-; — that he should have either taken issue on the pleas, as presented, or have new assigned, setting forth his premises, or right of possession, with greater certainty.

The Court has omitted to notice the argument of counsel, on the omission of the word “ unlawfully In both counts of the declaration, it is alleged, that the taking was with force and arms, and we should be disposed to consider this a sufficient allegation of unlawfulness, did we deem it was necessary, to insert it in form or substance, in the declaration. For the error of the Court below, in sustaining the demurrer to the second and third pleas in the record, the judgment must be reversed and the cause re manded.

Coke on Litt. m Chlt X57a<69173 2S¿adi7g Reptile 653e™R Taunt HSastj 8 Term 2Colce Lítt.áoo b. iieadUi. S East404 Willes m N. b. 3 Term Rep. 292. 5 Wilson R. 20. 1H. Black R. 555. Willes, 318