1839. FELTHAM . CARTWRIGHT, MATTHEWS, and JONES. May 28. TRESPASS for breaking and entering the Plaintiff's Plaintiff, house on the 13th of October 1837, continuing trained on for being disthere for five weeks, stopping up the chimneys with rent, gave straw, nailing up the windows and doors, &c. The Defendants severed in their pleas. Jones pleaded not guilty, that the house was not the Plaintiff's,— and leave and licence; which was traversed. The other two pleaded not guilty;- that the house was not the Plaintiff's;-leave and licence; - and a justification as having distrained for rent: the Plaintiff traversed the leave and licence; and to the justification, replied, in substance, a stay longer than the law allows. To that replication the two Defendants rejoined not guilty. At the trial before Lord Denman C. J., it appeared that on the 13th of October 1838, Matthews, as bailiff of Cartwright, distrained on the premises for rent in arrear, and put a man into possession. While he was yet on the premises, Defendant, her landlord, the following undertaking,—“ In consideration of Mr. C. giving me the trained for rent, I undertake to give him possession of the premises on furniture dis or before one week from the date hereof." Plaintiff acted on this instrument by of the furniture for her On the 18th, the Plaintiff signed a paper in the selling some words following;"In consideration of Mr. Cartwright giving me the own use, and household furniture distrained for rent, I undertake to give him the possession of the premises on or before one week from this date." Within the week, the Plaintiff acted on this agreement by selling some of the furniture on her own account, and admitting Cartwright's gardener to work in the garden. VOL. V. at the end of a week De fendant took possession. Plaintiff hav ing sued him in trespass, and Defend ant having pleaded leave and licence, Held, that the above instrument established the plea. PP 1839. FELTHAM But, as she refused to quit the premises, On the 25th, Jones, as Cartwright's attorney, entered and nailed up the doors and windows in the manner CARTWRIGHT. described in the declaration. V. It was contended, on the part of the Plaintiff, that the paper she had signed was an agreement for the breach of which she might be liable to an action; but that it was no licence for the Defendants to take possession of the premises: it was also urged, that, having been given pending a distress, it was void for duress. The Lord Chief Justice told the jury it was evidence of leave and licence, and left it to them to say whether or not it was the voluntary act of the Plaintiff: the jury finding it to be such, gave a verdict for the Defendants on the special pleas, and for the Plaintiff on the issue of Not Guilty. Whereupon, Platt, on the grounds urged at the trial, obtained a rule nisi to set aside the verdict. Thesiger, Ogle, and Locke, who shewed cause, contended that the Plaintiff could not proceed for trespasses by all, and other trespasses by some of the Defendants, but must make her election: that she had elected to proceed in respect of the trespasses jointly committed by all, which were committed on and after the 25th, when Jones first entered, and were covered by the instrument signed by the Plaintiff. If that instrument was not in itself a licence, yet, coupled with the fact that the Plaintiff had acted on it by selling part of the furniture on her own account, it was evidence to go to the jury, that the Defendants were proceeding under a licence: and after the licence had been acted on, the Plaintiff could not revoke it. 1839. FELTHAM ย. Channell, in support of the rule. The Plaintiff was tenant of the premises, and treated as such by the distress made for rent. But the instrument of the 18th was no surrender, or licence to the Defendants to enter, CARTWRIGHT. but a mere executory agreement, for the breach of which the Plaintiff was liable to an action; and if it was not a licence, neither was it evidence to support the plea of licence. If it was a licence, at all events it was revocable. TINDAL C. J. This is an action of trespass against three Defendants. Two justify together, and one separately. The two who justify together plead a licence for all the trespasses complained of, and a distress made for rent; on which plea of the distress the Plaintiff replies that the two Defendants staid a longer time than the law allows; and they rejoin not guilty. The third Defendant pleads separately, not guilty, and a licence. It was open to the Plaintiff, at the trial, to proceed either in respect of the trespasses committed by the two together, or those committed by all three jointly: she could not recover in respect of both sets of trespasses: and she elected to proceed in respect of the trespasses committed by the three jointly: it is important, therefore, to see what those trespasses were. On the 13th of October the distress was made by the two; on the 18th the Plaintiff signed the agreement in question; and the third Defendant, Jones, never came to the premises till the 25th. Then were the trespasses on the 25th, and afterwards, sanctioned by the leave and licence of the Plaintiff? When the five days allowed for the distress had expired, the Plaintiff executed the following agree ment: 1839. FELTHAM V. CARTWRIGHT. "In consideration of Mr. Cartwright giving me the household furniture distrained for rent, I undertake to give him possession of the premises, on or before one week from this date." This agreement was acted on, for the Plaintiff sold some of the furniture on her own account, and knew that a person sent by her landlord was working in the garden. Under these circumstances, did the instrument operate as a licence, and was it ever revoked? I think it could not be revoked after it had been acted on: but if there had been a revocation, that should have been alleged on the record. Lord Denman presented it to the jury as evidence of a licence, leaving them to say, whether or not it was given voluntarily, which the jury found to be the case. I think the view taken of the instrument was correct, and that the question of fact was properly left to the jury. VAUGHAN J. The Plaintiff only proceeds for the joint trespasses committed after the 25th of October, and as to them, the instrument signed by the Plaintiff was properly held by Lord Denman to be evidence of a licence. That licence, having been acted on, was not revocable, and there is therefore no ground for impugning the verdict. COLTMAN J. I am of the same opinion. The Plaintiff not having abandoned her charge against Jones, is confined to the trespasses which took place on and after the 25th of October; and then arises the question whether the Defendants have established the plea of licence. Now it appears to me that the instrument of the 18th of October would not convey an interest, and therefore must be considered as a licence; and it was not revocable, having been given for good consider ation, and then acted on. 1839. FELTHAM v. ERSKINE J. The Plaintiff might proceed either for CARTWRIGHT. the trespasses of the two Defendants between the 18th and the 25th of October, or for those committed by all three after the 25th, when Jones first entered. She elected to proceed for the latter, which are covered by the agreement of the 18th. That agreement is in effect\ a licence to the defendants to treat the premises as their own, after the 25th. Rule discharged. THIS DOE v. TRYE. May 28. Plaintiff's attorney being about to issue a ca. sa. against H. HIS was an action against the sheriff of Gloucestershire for permitting the escape of John Hail, taken in execution under a ca. sa. for 691. 5s., the costs of an ejectment in which Anne Jenkins was lessor of the Plaintiff. Plea, that the Defendant did not owe the money de- quested of manded. At the trial, it appeared that Roberts, the Plaintiff's attorney, after requesting that the warrant for arrest might be addressed to Price, a sheriff's officer, whom he had employed on a former occasion, delivered the warrant to that officer, and conveyed him in his carriage to a house in which Hail was staying. The officer thrust his hand through some paper which supplied the place at the suit of Plaintiff, re the sheriff a particular sheriffs' officer; delivered the warrant to that offi- in his car- arrest, from which H. afterwards escaped: Held, that Plaintiff could not sue the sheriff for such escape, and that the officer must be taken to be her special bailiff. |