3PLR -ANDREW LOWS V EDWARD TELFORD AND ROBERT WESTRAY
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ANDREW LOWS
V
EDWARD TELFORD AND ROBERT WESTRAY
HOUSE OF LORDS
1876 MAY 9, 11.
CITATIONS
1 App. Cas. 414
BEFORE THEIR LORDSHIPS
THE LORD CHANCELLOR (Lord Cairns)
LORD HATHERLEY and LORD SELBORNE.
MAIN ISSUE
LAND LAW:- Forcible ejectment of person in actual possession an with legal title over land – Forcible Entry – 15 Ric. 2, c. 2 – Mortgagee in Fee – Whether fact that legal title was acquired recenty is relevant
Where a person having the legal title to land is in actual possession of it, the attempt to eject him by force brings the person who makes it within the provisions of the statute against forcible entry.
It will do so though the possession of the person having such legal title has only just commenced, though he may himself have obtained it by forcing open a lock, though his ejection has not been made by a “multitude” of men, nor attended with any great use of violence, and though the person who attempts to eject him may even set up a claim to the possession of the land.
- became the mortgagee in fee of certain premises of which it appeared that he did not at once take actual possession. The mortgagor, whose possession had not been interfered with, made an agreement with T. and W. to allow them (at a rent) the use of these premises, and for some little time T. and W. did have the use of them and deposited goods there. On one morning at an early hour L., without notice to any one, went accompanied by a carpenter and another man, and, by taking off the lock of the outer door, entered into actual possession. T. and W. hearing of this went to eject him, and not being able to get in at the door obtained an entrance through a side window, then came down and did eject L. On this L. indicted them for a forcible entry; they were acquitted, jointly paid their attorney’s bill, and then brought a joint action against L. for malicious prosecution without reasonable and probable cause:-
Held, that, on these facts, they could not sustain the action, and that L. was entitled to have the verdict entered in his favour.
Quoere, whether a joint action by T. and W. could in such a case have been maintainable.
Per LORD SELBORNE:- If for civil purposes the legal possession was then in L., the foundation for a charge of forcible entry, so far as possession is concerned, was sufficiently established.
APPEAL (on a case agreed on by the parties) against a judgment of the Exchequer Chamber, which had reversed a previous decision of the Court of Exchequer.
The Appellant had, in August, 1868, become the mortgagee in fee, for £250 and interest, of some premises situated in the borough of Carlisle, which were the property of one Alfred Tweddle. The title deeds were handed over to Lows, but he did not take actual possession of the premises. On the 19th of October, 1868, Alfred Tweddle who, as it was stated in the case, “had acquired very intemperate habits,” executed to his two brothers a deed of settlement for the benefit of his family. In December, 1868, he executed a second mortgage on the premises for £200 in favour of Lows. Alfred Tweddle was however still allowed to continue in the apparent possession of the premises, and in November, 1869, entered into an arrangement with Telford, by which Telford was to pay him £20 a year for the use of them. They were not inhabited as a house, but occupied as a sale-room and warehouse. Westray used a part of them under an arrangement with Telford.
On the morning of the 14th of July, 1870, Lows, who had not given notice to any one of his intention to do so, went accompanied by two men, one of whom was a carpenter, and took possession of the premises by taking off the lock of the outer door, and so effecting an entrance. One of the men went into the building itself. While the other man, the carpenter, was engaged, with the door half open, in putting on a new lock, Lows being with him at the time, Telford, and Westray attempted to turn away Lows and the carpenter, but did not succeed. After a time they effected an entrance into the premises by a window and did then forcibly eject Lows. On this Lows indicted them at the borough sessions of Carlislefor a forcible entry. The jury acquitted them, and they then brought a joint action against Lows for a malicious prosecution without reasonable and probable cause. The trial took place before Mr. Justice Mellor at the Manchester Spring Assizes, 1872, when it was proved that on the indictment they had defended themselves by the same attorney, whose bill was taken as amounting to £55. It was contended for Lows that there was no proof of malice, and that the circumstances shewed reasonable and probable cause, and it was also submitted that there was no joint cause of action. The learned Judge was of opinion that the Plaintiffs had established a cause of action, and a verdict was taken for the Plaintiffs for £55, but leave was reserved to Lows to move to enter the verdict for him. On motion, the Court of Exchequer ordered that the verdict should be entered for the Defendant.
On appeal to the Exchequer Chamber that judgment was reversed. This appeal was then brought.
Mr. C. Russell, Q.C., and Mr. Trevelyan, for the Appellant:-
The legal title to the premises was in the Appellant. That being so he had a right to take actual possession of them at any time, even without notice to persons who had got into occupation of them. For that occupation was only upon sufferance: Smartle v. Williams (1). The fact that such an occupier had put goods into the premises gave him no title of any sort against the legal owner: Littleton (2). But the case here was still stronger than that, for the evidence shewed that the legal owner was in actual possession of the premises when the unlawful attempt was made to turn him out. The Respondents were thus in a less favourable position than a tenant who held over after his term, as to whom it had been decided that he could not distrain his landlord’s cattle for trespassing, though they had been put there by way of taking possession: Taunton v. Costar (3). The door had been opened, one of the men who accompanied Lows was in the house, and the other, the carpenter, was employed with the open door in the work of putting on a new lock. The attempt to turn out the Appellant was, therefore, an act wholly illegal, and brought the parties who made it within the provisions of the statute against forcible entry, and made them liable to indictment. The act of preferring the indictment could not therefore be properly alleged as malicious and without reasonable and probable cause. Co. Litt. (4), Comyns’Digest (5), Bacon’s Abridgment(6), Anonymous(7), Partridge v. Bere (8), Butcher v. Butcher(9), Jones v. Chapman(10), and Mr. Justice Maule’s dictum there (11), were cited and relied on.
(1) 1 Salk. 246.
(2) S. 69.
(3) 7 T. R. 431.
(4) 56 b.; see also Co. Lit. 205 a, n. (1).
(5) Estate H. 1, 2.
(6) Forcible Entry, D.
(7) 1 Salk. 246.
(8) 5 B. & Ald. 604.
(9) 7 B. & C. 399.
(10) 2 Ex. 803.
(11) Ibid. 831.
In point of form the action here was not maintainable. It was a joint action, whereas there was no joint injury, for the damage, if any, must have been to each individual separately. A joint action for an alleged wrong to different persons could not be sustained, except in the case of partners who were affected in their partnership interest, or in the case of a husband and wife where the law assumed, for many purposes, the identity of the parties, though even in this latter case it was doubtful whether, on account of a joint interest in land, a husband and wife could join in an action of trespass: Anonymous (1).
Mr. Herschell, Q.C., and Mr. Kenelm Digby, for the Respondents:-
The verdict here was completely justified by the facts, and those facts shewed that there was no reasonable or probable cause for the prosecution. The case was one for the jury on the point of malice. The Respondents were in possession. That possession was unlawfully and violently disturbed by the Appellant. It was he who had in reality effected a forcible entry, and the Respondents had only endeavoured to defend a possession which they believed themselves rightfully entitled to, for they had received it from Tweddle, who was the original owner of the premises, and whose authority over them had never appeared to be interfered with. The Respondents had a title to the occupation of the premises, which they would have been entitled to set up even in trespass quare clausum fregit: Jones v. Chapman (2). The right of the legal owner might be complete in law, but he was not, especially without notice, justified in asserting it as this Appellant had done. He took possession by force without previous notice to any one. [LORD SELBORNE mentioned Keech v. Hall (3).] But that was a proceeding in ejectment, as to which the rule in Jones v. Chapman (2). would be applicable. In Taunton v. Costar (4)., while declaring in the fullest way the right of a landlord to the possession, Lord Kenyon said, “If indeed he had entered with a strong hand to dispossess the tenant by force he might have been indicted for a forcible entry.”
(1) Dyer, 305 b. pl. 59.
(2) 2 Ex. 803.
(3) Dougl. 21.
(4) 7 T. R. 431.
Now that was exactly what the Appellant had done here, and he, and not the Respondents, had been guilty of the offence against the statute. The Appellant here had no right to resort to force: Newton v. Harland (1). He had no possession – it was out of him – he had allowed it to appear to belong to another, and without full possession he could not, on the principles of the most ancient law, complain against another of an attempt to dispossess him: Savigny (2), the Pandects (3). There was no pretence for charging the Respondents with any offence; but if not, then the making of such a charge without a reasonable and probable cause was proof of malice, and all the essentials for maintaining the action were complete: Comyns’ Digest (4), Mitchell v. Jenkins (5). The action was right in form. The damage of which the Plaintiffs complained was an entire damage which they jointly suffered, and against which they were entitled to be jointly relieved. There was no principle of law opposed to this joint claim of damages where the injury was joint. Indeed, in the earliest case upon the point Coryton v. Lithebye (6), the bringing of a joint action had been declared to be the better course, “for otherwise damages will be twice recovered.” Cook v. Batchellor (7). Collins v. Barratt (8), Pechell v. Watson (9); Forster v. Lawson (10), were all cases where the form of action was joint in respect of a wrong jointly affecting different individuals (11). Mr. Trevelyan replied.
THE LORD CHANCELLOR (Lord Cairns):-
My Lords, in the view which I take of the case now before your Lordships there is little, if anything, to be determined in point of law, but the decision of the case appears to me to depend mainly, if not altogether, upon a just appreciation of the facts which appear upon the special case.
My Lords, the story of the transaction which has led to this litigation appears to be this: There was a tenement in Carlisle, not a house where any persons were residing, but premises where goods were stored or kept. This, on the 14th of July, 1870, when the circumstances which are the subject of the litigation occurred, belonged to a person named Lows, as the mortgagee in fee. Lows therefore had the legal title, and, not having parted in any way with the right of possession, he might have taken possession at any time by any means which the law allowed him to use. The mortgagor was a person of the name of Tweddle. He was not in possession himself, but he had authorized two persons, who were named Westray and Telford, to occupy the premises. There was some kind of agreement for the occupation, although it does not appear to have been reduced to writing, and something was said about rent. But that is quite immaterial, because it is obvious upon the statement in the case, that Westray and Telford occupied by the consent of Tweddle; therefore their occupation was just the same as if Tweddle himself had occupied. It was not higher, and I am willing to take it as being a right of occupation as high as that which Tweddle himself had.
(1) 1 Man. & Gr. 644.
(2) Sir E. Perry’s trans. 169.
(3) De Acq. Poss.
(4) Forcible Entry, A 2.
(5) 5 B. & Ad. 588.
(6) 2 Wm. Saund. 112-116.
(7) 3 B. & P. 150.
(8) 10 B. Moo. 446.
(9) 8 M. & W. 691.
(10) 3 Bing. 452.
(11) See this matter fully discussed in Le Fanu v. Malcolmson, 1 H. L. Cas. 637.
It appears that on the 14th of July, 1870, Lows wished in this state of things to obtain possession of the tenement himself. He might have gone and demanded possession, and he might have got a judgment if that demand had been refused. The course, however, which he appears to have resorted to was this: The premises had been locked up on the night of the 13th of July, and very early in the morning of the 14th, before 6 o’clock, Lows went there, accompanied by two other men, one of whom was a joiner and carpenter. They appear to have opened the door, and, I infer from the statements, to have taken the old lock off. One of the men accompanying Lows was inside the house, Lows himself was on the doorstep, and the third man, the joiner or carpenter, had the door open before him, and was engaged in boring holes in the door for the purpose of putting on a new lock.
My Lords, if I had been asked the question what the position of things at that moment was, I should have said, undoubtedly, Lows was in actual possession. He had obtained possession in a very rough and uncourteous way, and what the reasons were which induced him to take that course are not before your Lordships. But we have nothing to do with the roughness or discourtesy of the mode, we have to do with the facts of the case, and the facts of the case appears to me to shew that, as I have said, at that time Lows had possession of the house by one of his agents who was inside, and he himself had command of the door, for Lows was standing on the step, and the carpenter was standing in the doorway holding the door, and putting a new lock on it.
That was the state of things when Westray, one of the two persons who were allowed by Tweddle to occupy the premises, came up. He had been told by some person what was going on. When he came up he objected to the proceedings which were going on with respect to the door.
However, Lows and the carpenter with him maintained their ground; they refused to give way, and either to allow Westray to enter, or to discontinue their work. Accordingly, Westray went for a policeman, but he could not find a policeman, and then, apparently, he went for Telford, who appears to have been a brother-in-law of his. Then they came to the premises. By this time, as I infer, the carpenter had gone inside, and had closed the door, and had put against the back of the door a spur, or piece of timber, which, resting on the ground, prevented the door from being opened for above four inches, and prevented any person from going in. The agents, therefore, of Lows, being in possession of the house, maintained their ground, and the door could not, I infer, have been forced open, but might have been forced open but for this circumstance. A lad in the interest of Westray, got a ladder, put it against an open window, or a window which he opened, and got into the house through the open window; Westray followed him, and then coming to the back of the door where the spur or piece of timber was placed, they removed the spur or piece of timber, opened the door thereby, and allowed any person who was able to come in at the open door. There was then a scuffle, a contest of pushing and violence between the parties, and, as I infer, Lows was pushed away from the door with some degree of violence, and there were several persons in the street taking part in the scuffle which was going on.
That, my Lords, is the history of the case. Thereupon Lowsindicts Westray and Telford for a forcible entry. He indicts those two with other persons, who do not take any proceedings, but he indicts those two. They are acquitted on the trial at quarter sessions.
They appear to have together defended the indictment, and incurred costs to the amount of a sum of £55, and they bring this action against Lows for indicting them without any reasonable and probable cause, and with malice. At the trial of this action the damages were agreed upon, and a verdict was entered for the Plaintiffs, with liberty to the Defendant to move to enter a verdict for himself. The Judges in the Exchequer, before whom the case first came, were unanimously of opinion that there was reasonable and probable cause for the indictment, and that, therefore, the verdict should be entered for the Defendant. But the Judges in the Exchequer Chamber were, also unanimously, of a different opinion, and held that there was no reasonable and probable cause for the indictment, and that, therefore, the verdict should stand for the Plaintiffs.
I am bound to say that in that state of things I am unable to arrive at any other conclusion than this, (differing in opinion with great respect from the Judges of the Court of Exchequer Chamber,) that there was reasonable and probable cause for this indictment. That there was the violence attending the transaction which would be necessary to bring it within the statute, was not in any way denied, and the whole question turns upon this: at the time when that violence took place was Lows in possession of these premises, or were they still in possession of Westray and Telford, so that in point of fact and truth Westray and Telford, in place of entering upon the possession of others, were merely defending a possession which was their own? I repeat what I have already said, that as I view the facts already stated, the possession which Telford and Westray were found to have had, was put an end to by the proceedings of Lows on the morning of the 14th of July. Whether those proceedings were, I repeat, all that we should have desired to see, whether they were courteous or discourteous, rough, or the contrary of rough, is immaterial; they were the proceedings of one who had a right to take possession, who took possession by the way that I have described, and who, it may be, not for any great length of time, but for a definite and appreciable length of time, obtained and retained possession of the property. From that possession he was dislodged by the means I have stated. Those means appear to me to have amounted to a forcible entry, and I think, therefore, it would be impossible to hold that there was not a reasonable and probable cause for preferring the indictment that was preferred.
My Lords, I will only add to what I have already said, that if I look to the evidence of Westray himself, one of the Plaintiffs, it is almost impossible not to see in every sentence of it, that he himself states the case exactly in the way that I have stated it, namely, that Lows had obtained possession, and that Westray and Telford were endeavouring to retake possession as against Lows. He says, “On the morning of the 14th of July, 1870, my workman, John Bradley, told me what was going on. ‘I found’ (he says) ‘Lows standing on the doorstep; the man was behind him. He was not putting on a new lock, but boring holes in the door. There was also at least one other man in possession farther in.'” Now, that other man was, as I have said, an agent of Lows; “I certainly thought it very wrong on Lows’ part. I have no doubt that Lows was there, and his men, to take possession of the place and to keep it if they could.” Farther on, he says, “what happened was, that Telford and the others, with my assistance, succeeded in putting out the persons in the house and resuming possession of the house myself.” And then farther on – “I thought Lows had no right to take possession in the way he had done.” And again, on being asked whether “Lows having got possession in the way that has been described, ‘Did he not shew fight to resist the witness taking possession’? – (A.) ‘Certainly, he did. They resisted as far as they could my taking possession.'”
My Lords, I am unable to appreciate the meaning of words if this is not the strongest statement, several times repeated, by one of the Plaintiffs themselves, that they were put out of possession and that they were endeavouring to retake possession against Lows.
I turn now to the opinions of the learned Judges of the Court of Exchequer Chamber. Passing over that of Mr. Justice Blackburn, which it would hardly, I think, be fair to criticise, because it is so imperfectly rendered (1), I take the expression of opinion of Mr. (1) The case was not reported in either of the Courts below, but notes of the trial and of the judgments had been furnished to their Lordships.
Justice Keating as shewing the ground upon which the Court proceeded.
Mr. Justice Keating says: “If in this case the facts had shewn that the Defendant having the right, which he unquestionably had, of possession, had taken possession, and having taken possession the Plaintiffs had entered on that possession, why then I should have said there would be reasonable and probable cause for indicting the Plaintiffs for a forcible entry.” My Lords, I think that exactly describes the condition of the argument, but I venture to think the conclusion at which Mr. Justice Keating arrives is erroneous. I think it is exactly the case that the facts shew that “the Defendant had the right of possession,” and “had taken possession,” and “having taken possession, that the Plaintiffs had entered on that possession.” Farther on, Mr. Justice Keating continues, “That brings the question to a question of fact – had he taken possession? Now, it seems to me that in order to constitute possession it must be a complete possession exclusive of the possession of any other person, and here, I think, the facts shew there was no such possession taken. All that occurred seems to have occurred in the nature of an act, and the transaction was this.
The Defendant was endeavouring to take possession, and the Plaintiffs were resisting him.” My Lords, I think that is a mistake. Lows had taken possession – there was no resistance whatever – there was nobody there to resist, he had taken possession and that act was completed. Mr. Justice Keating continues: “That seems to me to furnish no foundation for an indictment for a forcible entry on the part of the Plaintiffs, who were defending a possession which they partially had had, at all events, for a considerable time.” There again, my Lords, I think there is a misapprehension. They were not defending their possession – they had lost their possession, and they were endeavouring, as Westray himself says, to retake that which they had lost.
My Lords, all that I have said is quite consistent with the verdict of the jury. The jurors acquitted the Defendants in the indictment, the Plaintiffs in the present action; and I am not in the least surprised that they did so. Jurymen do not always proceed upon strictly logical grounds, and I can readily imagine that the jury, seeing the manner in which this transaction was accomplished.
