Breaking

Forcibly tearing asun-
der.

2. — In cases of burglary and house-
breaking, the removal of any part of
the house, or of the fastenings provided
to secure it, with violence and a feloni-
ous intent, is colled a breaking.

3. — The breaking is actual, as in
the above case, or constructive, as

when the burglar or house-breaker
gains an entry by fraud, conspiracy or
threats. 2 Russ, on Cr. 2 ; 2 Chit.
Cr. Law, 1002, 1 Hale, I\ C. 553;
Alis. Prin. 282, 291. In England it
has been decided that if the sash of a
window be partly open, hut not suffici-
ently so to admit a person, the raising
of it so as to admit a jx rson is not a
breaking of the house. 1 Moody, Cr.
Cos. 178. No reasons are assigned.
It is difficult to conceive how a window
made in the usual way can be other-
wise than partially open, and what will
amount to a sufficient opening to ren-
der a further opening not a breaking?
But see 1 Moody, Cr. Cas. 327, 377 ;
and Burglary.

Breaking doors, is the act of forci-
bly removing the fastenings of a house,
so tliut a person muy enter.

2. — It is a maxim that every man’s
house is his castle, nnd it is protected
from every unlawful invasion. An of-
ficer having a lawful process, of a cri-
minal nature, authorising him to do so,
may break an outer door, if upon
making a demand of admittance it is
refused. The house may also be bro-
ken open for the purpose of executing
a writ of ha l>e re facias. 5 Co. 93 ;
Bac. Ah. Sheriff, N. 3.

3. — The house protects the owner
from the service of all civil process in
the first instance, but not if lie is once
lawfully arrested, and he takes refuge
in his own house ; in that case the ofti-
ccr may pursue him, and break open
any door for the purpose. Foster,
320; 1 Rolle’s R. 138; Cro. Jac. 555.
V. Door ; House.

BREATH, mol. juris. The air ex-
pelled from the cheat at each expiration.

2. — Breathing, though a usual sign
of life, is not conclusive that a child
was irholly born alive, as breathing
may take place before the whole deli-
very of the mother is complete. Until
the child is ulioUy born it being killed
maliciously is not murdc r or infanti-
cide, (q. v.) ; 5 Carr. & Payn, 329 ; S.
C. 24 Engl. C. L. R. 344. Vide
Birth ; Life .

BUEPIIOTROPHI, civilian. Per-

BRE

BRI

207

sons appointed to take care of houses
destined to receive ioundlings. Clef
des Lois Rom. mot Administrateurs.

B REIVE, practice, is a writ in which
the cause of action is briefly stated,
hence its name. It is issued to sum-
mon or attach a defendant requiring
him to answer to an action, or any
thing commanded to be done by the
same.

2. — W rits arc divided into two kinds,
namely ; breve nominatum el innomi -
natum. The former contains the time,
place and demand very particularly ;
and therefore by such writ several
lands by several titles cannot be de-
manded by the same writ. The latter
contains only a general complaint,
without expressing time, damages, dec,,
as in trespass quarc clausum fregit,
&c., and therefore several lands com-
ing to the demandant by several titles
may be demanded in such writ. F. N.
B. 209; 8 Co. 87; Kielw. 105; Dy.
145; 2 Brown!. 274; Bac. Ah. Ac-
tions in General, C. See binominalc
contracts .

Breve dk recto. A writ of right,
(l- *■)

Breve testatum, feuded law, A
declaration by a superior lord to his j
vassal, made in the presence of the pa-
res curia?, by which he gave his con- '
sent to the grant of land, was so called. !
Krsk. Inst. B. 2, tit. 2, s. 17. This
was made in writing, and had the ope-
ration of a deed. Dalr. Feud, Pr.
209.