Climson v. Poole, 1 N.C. 47, 1 Mart. 47 (1793)

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

1 N.C. 47, 1 Mart. 47

Climson vs. Poole.

Trin. 2. Car.

The condition of the obligation was, that the plaintiff should have free egress, ingress and regrets in the house of I. S. The defendant pleaded that he had egress, ingress and regress, without saying free ingress &c.

Whitlock, J,

It is a bad bar.

The plaintiff replied that he had shut all the outward gates. In this case the plaintiff has a right to part of the house, viz. to the chambers; therefore he ought not to be barred of his entry.

Doderidge, J. assented.

If one is obliged to permit I. S. to have ingress in his house; he ought to have it at the usual entry door. He is not to come through a hole, a back door, or down the chimney. And if the other leaves the entry door open and digs a ditch before it, so that he may not come in without skipping, the condition is broken. In 18 E. 4, it is said, if I am obliged to suffer I. S. to have his way over my land and he comes to go over, and I take him by the sleeve, and tell him: Come not here; for if you do, I will pull you by the ears, the condition is broken.

Jones, J. contra.

I am not obliged to suffer my house to be left open at midnight for the ease of I. S. thereby it may be *robbed; and I in danger of my life. But on request he ought to be permitted to come in at midnight. 5 Rep. 91. 93. Seman’s case.

Doderidge, J,

It has been pleaded that he shut the doors continually; otherwise it would be as my brother Jones has said. If I am obliged to let I. S. have a way over my land and I lock my gates; the condition is broken; for I cannot compel him to go over the fences or send to me for the keys. It seems to me there is a difference between the case of a field and that of a house; as a house is the owner’s castle and ought to be kept with more caution than a field, as appears by 5 Rep.

Sed the parties agreed, post. p. 146. Bendl. 172.