英文法律词典 B-37

BREAKING. Parting or dividing by force and violence a solid substance, or piercing, penetrating¹, or bursting through the same.

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 felonious intent, is called a breaking.

3. The breaking is actual, as in the above case; or constructive², as when the burglar or house-breaker gains an entry by fraud, conspiracy³ or threats. 2 Russ. on Cr. 2; 2 Chit. Cr. Law, 1092; 1 Hale, P. C. 553; Alis. Prin. 282, 291. In England it has been decided⁴ that if the sash of a window be partly open, but not sufficiently⁵ so to admit a person, the raising of it so as to admit a person is not a breaking of the house. 1 Moody⁶, Cr. Cas. 178. No reasons are assigned. It is difficult to conceive, if this case be law, what further opening will amount to a breaking. But see 1 Moody, Cr. Cas. 327, 377; and Burglary.

BREAKING DOORS. The act of forcibly removing the fastenings of a house, so that a person may enter.

2. It is a maxim⁷ that every man's house is his castle, and it is protected from every unlawful invasion. An officer having a lawful⁸ process, of a criminal nature, authorizing⁹ him to do so, may break an outer door, if upon making a demand of admittance it is refused. The house may also be broken open for the purpose of executing a writ¹⁰ of habere facias possessionem. 5 Co. 93; Bac. Ab. Sheriff, N 3.

3. The house protects the owner from the service of all civil process in the first instance, but not, if once lawfully¹¹ arrested, he takes refuge in his own house; in that case the officer may pursue him, and break open any door for the Purpose. Foster, 320; 1 Rolle's R. 138 Cro. Jac. 555. Vide Door; House.

BREATH, med. juris. The air expelled from the chest at each expiration¹².

2. Breathing, though a usual sign of life, is not conclusive¹³ that a child was wholly born alive, as breathing may take place before the whole delivery of the mother is complete. 5 Carr. & Payn, 329; S. C. 24 E. C. L. R. 344. Vide Birth; Life; Infanticide.

BREPHOTROPHI, civil law. Persons appointed to take care of houses destined¹⁴ to receive foundlings. Clef des Lois Rom. mot Administrateurs.

BREVE, practice. A writ in which the cause of action is briefly¹⁵ stated, hence its name. Fleta, lib. 2, c. 13, §25; Co. Lit. 73 b.

2. Writs¹⁶ are distributed into several classes. Some are called brevia formata, others brevia de cursu, brevia judicialia, or brevia magistralia. There is a further distinction with respect to real actions into brevia nominata and innominata. The former, says Bacon, contain the time, place and demand very particularly; and therefore by such writ several lands by several titles cannot be demanded by the same writ. The latter contain only a general complaint, without expressing time, damages, &c., as in trespass¹⁷ quare clausum fregit, &o., and therefore several lands coming to the demandant by several titles may be demanded in such writ. F. N. B. 209; 8 Co. 87; Kielw. 105; Dy. 145; 2 Brownl. 274; Bac. Ab. Actions in General, C. See Innominate contracts.

BREVE DE RECTO. A writ of right. (q. v.)