Burnham v. Stone

Citations

• 101 Cal. 164
• 35 P. 627
• 1894 Cal. LEXIS 1001

Syllabus

<p>Writ of Restitution—Description.—A description which will enable the officer executing a writ of restitution to clearly identify the premises, is sufficient; and a writ describing the land by reference to a “dwelling-house, honey-house, and chicken-house thereon,” as matter of law covers the land on which they are situated, notwithstanding an erroneous description by government subdivisions.</p> <p>Id.—Action for Death—Protection of Officer Executing Writ.— A constable and his posse executing a writ of restitution, have a right to regard a description of the premises by survey as erroneous, and to execute it upon the premises identified by the buildings thereon, and are protected by the writ against any action for a death justifiably caused in its enforcement.</p> <p>Id.—Appeal—Objection for First Time—Pleading—Justification of Member of Posse.—Upon appeal by a member of the constable’s posse • who did not formally by his answer justify under the writ and command of the constable, where the record shows that the defendants generally did plead the writ and justification, and discloses no objection made by the plaintiff to the evidence tending to show justification under the writ, nor any request that instructions to the jury be restricted to those defendants who had pleaded the writ, and shows that appellant was allowed to testify without objection that he was required to help the constable in enforcing the writ, the plaintiff is estopped from raising an objection to the pleading for the first time upon appeal, and the appellant is entitled to review the instructions of the court relating to justification under the writ and command of the officer.</p> <p>Id.—Trespass—Assault and Battery—Forcible Entry op Owner op Land.—If the owner of land wrongfully held by another enters and expels the occupant, but makes use of no more force than is reasonably necessary to accomplish this, he will not be liable to an action of trespass, nor for assault and battery, nor for inju