Sprague National Bank v. Erie Railroad

The opinion of the court was delivered by Dixon, J. In an action of trespass the plaintiff declared that the defendant with force and arms broke and entered a certain close of the plaintiff, and with force and arms broke and entered certain buildings of the plaintiff, erected on said close, and ejected, expelled, put out and amoved the plaintiff [475] and its servants from the possession, use, occupation and enjoyment of the said close and buildings. To this declaration the defendant pleaded, first, the general issue; secondly, liberum, tenementum in the defendant; and thirdly, liberum tenementum in E. B. T. as servant of whom and by whose command the defendant broke and entered, &c., and ejected, &c. The plaintiff’s demurrer to the second and third pleas is now to be considered. In Thiel v. Bulls Ferry Land Co., 29 Vroom 212, this court decided that the forcible eviction of a person in the peaceable occupation of realty, although perpetrated by the owner legally entitled to recover possession, was a wrong remediable by the ordinary action of trespass. On this principle it is evident that these pleas set forth no justification for so much of the alleged trespasses as consisted in the forcible expulsion of the plaintiff and its servants. The defendant urges that the pleas being good as tb the breaking and entering, the forcible ejection and expulsion of the plaintiff and its servants should be deemed mere matter of aggravation, aud therefore legally answered by the defence to the principal matter, and Davison v. Wilson, 11 Q. B. 890, is cited to support this contention. But in that case the personal tort was carefully excluded, both by the pleader and by the court, from the circumstances which were treated as mere aggravation. In Chitty’s Forms (2 Chit. Pl. 863, 865), and in Perry v. Fitzhowe, 8 Q. B. 757, the forcible expulsion bf persons is regarded as substantially distinct from the trespass upon the land. Such also is the clear import of Thiel v. Bulls Ferry Land Co., ubi supra. Consequently the pleas, having in form professed to answer the whole declaration and having in substance legally answered only part, are bad. Grafflin v. Jackson, 11 Vroom 440; Newark v. Stout, 23 Ld. 35. They should have been limited in their commencement to the alleged trespasses upon the realty. Flemming v. Hoboken, 11 Vroom 270. The plaintiff is entitled to judgment on the demurrer.