Case Facts
In this case, a stranger's bull had broken into the defendant's close. The defendant was in the process of driving the bull to the pound when the plaintiff entered the close and attempted to rescue and retake the bull, physically impeding the defendant in doing so. The defendant, in response, placed a small whip upon the plaintiff, which he described in his plea as a gentle imposition — "parvum flagellum molliter imposuit" — and contended that this was the very act complained of by the plaintiff. The plaintiff demurred to this plea. The action was one of trespass, assault, and battery, heard before the Queen's Bench.
Held
The court rejected the defendant's plea. The central determination was that the defendant's justification for laying hands upon the plaintiff was insufficient in law, because no prior request to depart had been made before the defendant physically intervened. The case was adjourned ("Sed adjournat") at the conclusion of the report, and a final judgment was not definitively entered as reproduced in the report. However, the court set out three distinct holdings.
First, the court drew a critical distinction between two categories of trespassory entry in respect of the degree of force that may lawfully be used in response. Where a trespasser enters by "force in law" — that is, a mere entry onto land, of the kind present in every action of quare clausum fregit — the occupier is not entitled immediately to lay hands on the trespasser. Before resorting to any physical contact, the occupier must first request the trespasser to depart. The reason is that every laying of hands ("impositio manuum") constitutes an assault and battery, and such conduct cannot be justified by the mere breaking of the close in law alone, absent a prior request. The mere trespassory entry, without more, does not license an immediate physical response.
By contrast, where there is "actual force" — such as breaking open a door or gate, or entering by force of arms, as in the case of a burglary — the occupier may immediately oppose force with force, without any prior request to depart. The court gave a further illustration: if a person comes with actual force and takes away goods, the owner may resist immediately, because in such circumstances there is no time to make a request before the taking is complete.
Secondly, the court held that the plaintiff's act of attempting to rescue and retake the bull amounted to an assault upon the defendant's person, analogous to a taking from his person. The point was made that if a person is driving cattle along the highway and another person takes them, this may amount to robbery — an offence requiring a taking from the person — and this analogy was not negated.
Thirdly, the court held that "quod est idem residuum" was sufficient without a traverse, and accordingly no traverse was necessary in the pleading. The brevity of the traverse was immaterial, because the averment that it was the same act resolved the issue.
Ratio Decidendi
The ratio of this case is that a person defending possession of land against a trespasser who has entered by "force in law" — that is, by a mere entry without actual physical force — must first make a request to the trespasser to depart before laying hands upon them. Any physical contact without such a prior request constitutes an unjustified assault and battery, and the mere unlawful entry onto land is insufficient justification for an immediate physical response.
The converse principle forms the other limb of the ratio: where the trespasser has used "actual force" — by breaking open a door, entering vi and armis, or using force of arms — the occupier is entitled to respond with immediate counter-force, without any requirement to first request departure. The justification for dispensing with a prior request in cases of actual force is the practical impossibility or futility of making such a request when active and immediate force is being deployed.
This distinction between "force in law" and "actual force" remains the foundational principle of the case. It draws a clear boundary between passive trespassory entry, which requires a graduated response beginning with a request to leave, and forcible or violent entry, which permits an immediate physical response in defence of property and possession.
Obiter Dicta
Two matters were raised in the course of the proceedings that fall to be treated as obiter.
First, in relation to the second holding, the point was raised that if a person is driving cattle along the highway and another person takes them, this might constitute robbery — that is, a taking from the person — by analogy with the plaintiff's attempt to retake the bull from the defendant who was in the act of driving it. This observation extended the principle beyond the facts of the case itself, and no definitive ruling on the question of robbery was necessary to resolve the dispute before the court.
Second, on the pleading point concerning traverses, the court observed that where a traverse goes to the matter of a plea, all that preceded it becomes mere inducement and is waived by the traverse. However, where a traverse goes to time only, what was set out in the plea before does not become bare matter of inducement and is therefore not waived. This distinction in pleading procedure, whilst addressed in the judgement, was ancillary to the primary issue of the lawfulness of the physical force applied to the plaintiff.