Trespass guare clausum, fregit. Plea, that the defendant was the owner of a barn and of certain goods being on the plaintiff’s close, &c.; and that he entered to take them, &c. Demurrer to the plea.

The counsel for the defendant, to support the plea, cited Tayler v. Friskin, Cro. Eliz. 246.—Millen v. Ha-wery, Latch, 13.—Vin. Abr. Tresp. H. a. 2.—Dyke v. Dunstan, 6 Ed. 4. 18.—Millen v. Fandry, Poph. 161.—Co. lib. 4. 38. b.—Com. Dig. Pl. 3 M. 42.—Year Book, 17 H. 6.—Absor v. French, Show. 28.—Henn’s Case, Sir W. Jones, 296.—Lifford’s Case, 11 Rep. 52 a.—Com. Dig. Pl. 3 M. 38.

Tindal, C. J., after stating that the barn appeared to be affixed to the freehold, and that the plea was, for that reason, bad, expressed himself as follows:—

"But we are unwilling to decide the case on so narrow a ground; for even if the barn had not been affixed to the freehold, the defendant has shown on this plea no justification of his entering to taire it away. In none of the cases referred to has the plea been allowed, except where the defendant has shown the circumstances under which his property was placed on the soil of another. Here the defendant has confined himself to the .statement that they were there, without attempting to show how. To allow such a statement to be a justification for entering the soil of another, would.be opening too wide a door to parties to attempt righting themselves without resorting to law, and would necessarily tend to breaches of the peace. Let us examine two or three of the cases which have been cited on the part of the defendant. And first, that of fruit falling into the ground of another: that falls under the head of an accident, for which the defendant is not responsible, and which he shows by his plea before ho can make out a right to enter. So in the case of a tree which is blown down, or through d ecay falls into the ground of a neighbour, the owner may enter and take it. *440But the distinction is taken by Latch, who says that if it had fallen in that direction from the owner’s cutting it, he could not justify the entry. As to the cases where goods have been feloniously taken and the owner pursues to obtain possession, the principle is laid down by Blackstone, 3 Comm. 4, who says, ‘If my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law.’ A case has been suggested in which the owner might have no remedy where the occupier of the soil might refuse to deliver up the property, or to make any answer to the owner’s demand; but a jury might be induced to presume a conversion from such silence, or at any rate the owner might in such a case enter and take his property, subject to the payment of any damage he might commit.” The other judges expressed similar opinions. Anthony v. Haneys et al. 8 Bing. 186.