Meader v. Stone

Shaw, C. J. The court are of opinion, for two reasons, that this action of trespass quare clausum fregit will not lie. First, it is brought in the name of husband and wife, and it does not appear that the wife had any interest whatever in the premises, and therefore such joint action cannot be maintained. Second [151] ly, the plaintiff cannot maintain such action, because if the facts were proved of which evidence was offered, the defendant had a full right of entry. Notice to quit, as required by law, (Rev. Sts. c. 60, § 26,) had been given to the tenant; the time had expired; and the tenant had no right to resist the defendants’ entry. He could no longer legally aver that the house was his close. See 1 Russell on Crimes, (1st ed.) 413. But it is urged and relied on, in support of the action, that the owner cannot, even after such notice, enter by force. Rev. Sts. c. 104, § 1. But we think, that however such entry by force might subject the landlord to penalties for a breach of the law, criminally, it confers no right of action on the tenant thus holding without any right of possession. Besides ; the declara tion states no such entry by force as the ground of the action ; but the plaintiffs declare, in the usual form, against the defendants, for breaking and entering said Samuel A.’s dwelling-house, &c. To this point the.case cited in the argument is an authority. Sampson v. Henry, 13 Pick. 36. Supposing enough is alleged in the declaration, if properly stated, to sustain a joint action for an assault and battery on the wife, we think the evidence, as stated in the bill of exceptions, shows no assault on the wife. She was in bed, in one of the rooms ; but it does not appear that the defendants knew that she was in the house. There was no force, or threat, or demonstration of force, towards her. We have no doubt that an assault may be committed on one in a house, who is not seen or known to be there ; as if one were wantonly to fire a loaded gun, and the ball should pass through a house where persons were, it might be an assault on all of them. But the evidence shows no such case, and the cause was not put on this ground. In these respects the case differs entirely from that of Sampson v. Henry, in which an actual and aggravated assault and battery were proved. The court are of opinion, that the evidence to prove the defendants’ right of entry ought to have been admitted, and that the fact, if proved, would have been a bar to any claim for damages on the ground of a breach of the plaintiffs’ close; and [152] that the direction of the court of common pleas, to find a verdict for the plaintiffs, on the circumstances stated in the bill of exceptions, was incorrect. Verdict set aside, and a new trial granted.