A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

HOUSE.

House in a house four things are necessary.

• 1. Habitatio homini••.
• 2. Delectatio inhabitantis.
• 3. Necessitas luminis.
• 4. Salubritas aeris.

For hurt made to three of these an Action lieth.

• 1. Of the habitation of a man, for this is the principall end of a house.
• 2. For hinderance of his light, for the antient form of an action upon the Case was signifi∣cant, quòd messuagium horrida tenebritate ob∣scuratum suit. It is said, Vescitur aura aetherea, and the words horrida tenebritate imply the be∣nefit of light, but for a prospect which is a matter only of delight, and not of necessity, no action lies for stopping of this, and yet it is a great commendation of an house, if it have a fair prospect.
  Unde dicitur, Laudaturque domus longos qui prospicit argos.
• 3. And if stopping of wholsome air be actionable à fortiori, an action lies for corrupting and in∣fecting the air, a lime kill is good and pro∣fitable, but if this be erected so near a house

• that none can inhabit there, for the entring of the smoke an action will lie, prohibetur ne quis faciat in suo quod nocere possit alien••.

The house of every one is to him as his Castle and Fortress, as well for his defence against inju∣ry and violence, as for his repose, and although that the life of a man be a thing precious and favoured in the Law, so that when a man kills another in his own defence, or per infortunium without any intent, yet this is felony, and in such Cases he shall for∣feit his goods and chattels for the great respect that the Law hath to the life of a man. But i•• Thieves come to ones house to rob or murder him, and the owner or his servants kill any of the Thieves in defence of him and his house, this is not felony, nor shall he lose any thing. Domus sua cu∣ique est tutissimum refugium.* 1.1

2. When any house is recovered by any reall acti∣on or by an Ejectione firmae, the Sheriff may break the house, and deliver seisin or posses∣sion to the Demandant or Plaintiff, for the words of the Writ are, Habere facias seisinam, or possessionem, and after Judgment this is not the house in right, and judgment of the Law, of the Tenant or Defendant.

3. In all Cases where the King is party, the She∣riff (if no door be open) may break the house of the party, either to take him or to do o∣ther execution of the process of the King, if otherwise he cannot enter in it, but be∣fore he break it, he ought to signifie the cause of his coming, and to request him to o∣pen the door. For in such Case if he break the house when he may enter without break∣ing it (that is upon request made, or if he may open the door without breaking it) he is a trespasser.

The preheminence and priviledge that the Law giveth to houses which are for habitation of men is great.

• 1. A house ought to have the precedency in a praecipe quod reddat, before Lands, Medowes, Pastures, Woods, for ones House is his Castle.
• 2. The House of a man hath a priviledge to* 1.2 protect him against an arrest, by force of a pro∣cess of the Law, at the suit of the Subject.
• 3. It was resolved that those that dig for salt∣peter shall not dig in the mansion house of any Sub∣ject, without his assent, for then he nor his wife, nor his Children, cannot be in safety in the night, nor his goods in his House preserved from Thieves.
• 4. He that kills one which will rob and spoil him in the house shall forfeit nothing.

If a man (hearing that another will fetch him out of his house and beate him) do assemble com∣pany* 1.3 with force, it will be no unlawfull assembly, for his house is his hold and Castle.

The Kings Officer may break an house for Fe∣lony, or suspicion of felony.

• 1. For the Common-wealth, for it is for the publick good to take Felons.
• 2. In every Flony the King hath an interest, and where he hath an interest, the Writ is, Non o∣mittas propter aliquam libertatem, the priviledge of the house will not hold against him. Cook 5 Rep. Cases of executions.

For the good of the Common-wealth, an house shall be pulled down, if the next be fired. Judge Doderidge.

Notes

• * 1.1

  Cook 5 〈…〉〈…〉. of Rep. S••∣mains Case.
• * 1.2

  Cook 11. Rep. Bowls Case.
• * 1.3

  Lambert.