
    JAMES KINGSBURY vs. NATHAN POND.
    In trespass quart clausum frtgit, a plea, which cantatas a good answer to the breaking and entering, will cover the whole declaration.
    Where a debtor drove his sheep into the close of A. without A's consent Ot knowledge, in order to prevent their being seized upon execution, and the officer, who had the execution, entered into 4's close, and took, and drove away, not only the sheep of the debtor, but some of the sheep of A. also it ivas held, that, admitting the officer had a right to enter and seize the debtor's sheep, he was hound to see, that he took not the sheep of 4., and that such taking was illegal, and made him a trespasser aO iniiio.
    
    This was an action of trespass For breaking- and entering the plaintiff’s close, in Surry, and taking and driving away fifteen sheep of the plaintiff. The cause was submitted to the decision of the court upon the following facts;
    
      At the time, when the supposed trespass was committed, the defendant was a deputy sheriff, and had in his hands an execution against one W. Baxter, with directions to levy the same on certain sheep of said Baxter. He proceeded to the pasture of Baxter, in Surry, where the sheep were sup* posed to be ; but Baxter, to prevent the seizure of the sheep, sent several persons to collect the sheep, and drive them from the pasture. When the defendant arrived at Baxter’s pasture, he found that the sheep had been drives from that pasture into a pasture of the plaintiff, into which he entered and took the sheep, by virtue of the execution. The sheep were thus driven into the plaintiff’s pasture without his permission, and without his knowledge ; and some of his sheep became intermixed with the sheep of Baxter. The defendant seized the whole flock, including the plaintiff’* sheep and drove them to Keene ; but they were afterwards all returned to the pasture of Baxter, and notice thereof given to the plaintiff.
    And the parties agreed, that if the court should be of opinion that the action was maintainable, judgment should he entered for the plaintiff for one dollar damages.
    
      Bingham, for the plaintiff.
    
      J. Parker, for the defendant, contended,
    I. That the entry of the defendant into the close of the plaintiff, for the purpose of seizing the sheep of Baxter, which were there, was warranted by law, and not a trespass. Selw. JV. P 1229, 1246. — 5 Coke 93, Semayne’s case. —Cro. EKz. 759, Bishop vs. JVhüe. — Bac. M. “ Sheriff,” JV. 3. — Com. Dig. “ Execution,” C. 5.
    
    II. The gist of the action is the entry, and the entry being justified, the action cannot be sustained. 1 Chitt. PI. 175.— 2 Salk. 642. — 1 Str. 61.— Yelv. 126, Strickland vs. Thayer.
    
    III. The sheep of the plaintiff were so intermixed with those of Baxter, which the defendant was bound to take, that he could not sever them. He might therefore well take them, as he could not otherwise execute the process against Baxter.
    
   By ¡he court,

It is a well settled principle of law, that, mi trespass quare clausum Jregit, a justification of the entry will cover the whole declaration. Taylor vs. Cole, 3 D. & E. 292. But admitting, in this case, that the defendant, had ⅜ right to enter into the plaintiff’s close, for the purpose of seizing Baxter’s sheep, on what ground can he justify the entry for the purpose of taking the plaintiff’s sheep ? It might deserve consideration, whether the defendant could not enter to take Baxter’s sheep. Hammond’s N. P. 166—169.—Cro. Eliz. 329, 759.-5 Coke 93.

But as the sheep of Baxter had become mixed with the sheep of the plaintiff without his fault, the officer was bound at his peril to see that he took no sheep belonging to the plaintiff ; and as he did take the plaintiff’s sheep, it was an abuse of his process, which made him a trespasser ah initio, and his entry unlawful.

Had the defendant requested the plaintiff to point out the sheep, which belonged to him, and he had refused, this might perhaps have made the plaintiff a party to the attempt to prevent the seizure of Baxter’s sheep, and might have materially altered the nature of the case. But it does not appear, that the plaintiff was requested to point out the sheep he claimed. We are therefore of opinion, that there must be Judgment for the plaintiff.  