Climson v. Pool, 1 N.C. 146, 1 Mart. 146 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 146, 1 Mart. 146

Climson vs. Pool.

Trin. 2 Car.

DEBT on an obligation. The condition was, that whereas the plaintiff had leased to the defendant a house, except an inner parlour, &c. with free ingress; egress, and regress thereto, the defendant disturbed the possession of the plaintiff, una cum free ingress. The defendant pleaded that he did not disturb the ingress, &c. secundum formam conditionis prædict. but did not say liberum ingress. The plaintiff assigned a breach, that on such a day, the defendant clausit exteriores januas (anglice gates) et quod non potuit intrare. Whereupon the defendant demurred and the following exceptions were taken.

1. The variance: he did not disturb the ingress of the plaintiff without saying liberum ingressum, which is not a good plea.

2. In the replication, clausit exteriores, januas, without saying that he could enter no where else.

Doderidge, J. and Jones, J. This shall be shewn by the plaintiff, for it is alledged that he could not enter freely; as to the other part the defendant (plaintiff, I suppose) ought to shew a request to open the doors; for otherwise there is no breach. Therefore the bar and replication are both bad.

Doderidge, J. Therefore there ought to be a repleader.

Jones, J. There is no necessity of a request, where no breach. Perhaps he came in the night, and the lessee is not obliged to keep his house for ever open. There ought to be no repleaded after a demurrer.

On another day, Hitcham for the plaintiff.

The bar is bad. For the condition is, that he shall have liberum ingressum, &c. and the defendant says that he had liberum ingressum; and the replication is well: for it shews a disturbance quod defendens clausit exteriores januas and kept them shut, from the first of March to the first of April of the same year, so that he could not have free ingress, &c. there is no necessity for a request; for the defendant has bound himself to more than the law requires. Seaman’s case. 5 rep. 93. If the sheriff has an execution to serve for the Queen, he cannot break the house without a previous request to open the door. If the bar and the replication are both bad, the plaintiff shall have judgment, if the replicantion does not contradict the count; and there shall be no repleader after a demurrer.

Richardson, Serj. e contra.

Liberum ingressum is no more than the law implies: for when he reserves to himself an ingress, it shall be understood to be a free ingress; the replication is bad, for it does not shew that he might not enter elsewhere, nor shews any request to open the door; therefore there ought to be a repleader. For although, generally, after a demurrer, there ought to be no repleader; this is restrained to the plea only the demurrer was upon: But on any precedent plea, there may be a repleader.

Whitlock, J.

The writ is insufficient, for he does not plead that he disturbed the plaintiff, de libero ingressu, &c. but he omits liberum. 2 H. 4. Condition that he shall not put the plaintiff out of possession, and the breach is assigned that he kept the door shut; it is well enough. Yet it appears that he never had possession. So the replication is good and the breach well alledged, and he disturbed him. Wherefore there shall be judgment for the plaintiff.

Jones, J.

e contra. 1. The bar is good: for liberum ingressum, is no more than ingressum in the condition, it shall be *understood from time to time and libere. Also it is said here that he did not disturb him in the ingresse, &c. secundum formam et effectum conditionis predict.

2. The replication (which ought to be to every point) is bad, for it assigns no breach: for, by intendment there may be other gates. The defendant is not to leave his house open at midnight, but only at reasonable hours. Perhaps the gates were only shut until it should be requested that they might be opened: they are not to be always open: and it is not shewn how long they remained shut.

3. There shall be no repleader after a demurrer; and if the count, the bar, and the replication are all good, the plaintiff shall have judgment. If the bar is bad in substance, or only in matter of form, and the replication be bad; the defendant shall have judgment. This distinction is taken in Ridgeway's case.

Doderidge, J.

The bar is bad, for it omits liberum, for a man may have ingress, &c. with disturbance, 20 E. 4. One was bound not to obstruct or hinder possession, and threatened the party out of the land. It is no breach, for it is no hinderance out of the land. This differs from Seaman’s case, quia modus et conventio here vincunt leges.

Jones, J.

4. There never shall be a repleader alter a demurrer, although there are precedents e contra in the books of entries. For these were not entered by rule of court.

Bendl, 172. Co. Ent. 137.