George Butcher against John Butcher
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1827 |
| Date | 08 November 1827 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 772
IN THE COURT OF KING'S BENCH.
S. C. 1 Man. & Ry. 220; 6 L. J. K. B. O. S. 51. Applied, Hey v. Moorhouse, 1839, 6 Bing. N. C. 57; Hodson v. Walker, 1872, L. R. 7 Ex. 69.
george butchek against john butcher. Thursday, November 8th, 1827. A party having the legal title to land having entered, may maintain trespass against a person wrongfully in possession at the time of entry, and continuing in such possession afterwards. [S. C. 1 Man. & Ry. 220; 6 L. J. K. B. 0. S. 51. Applied, Hey v. Moorhouse, 1839*, 6 Bing. N. C. 57; Hodson v. Walker, 1872, L. R. 7 Ex. 69.] Trespass for breaking and entering the plaintiff's close, mowing, and cutting down the grass, corn, and crops; and taking and carrying away the hay, corn, and crops of the plaintiff. Plea, first, not guilty. Secondly, liberum tenementum. At the trial before Garrow B., at the Summer Assizes for the county of Bucks, 1827, it appeared that the plaintiff and defendant [400] were the sous of George Butcher, who in 1761 was admitted a copyhold tenant to the close in question, to hold to him the said G. Butcher, the Elder, W. S. Butcher, his second son, and G. Butcher, the Younger,, his eldest son (the plaintiff), for the term of their lives, and the lives and life of the survivors and survivor. George Butcher, the father, died in 1807. W. S. Butcher remained in possession of the close in question, from that time to January 1827, when, he died, and by his will devised the close to John Butcher, the defendant, in fee, and" appointed him sole executor of his will. The defendant entered into possession of the close as devisee. On the 10th of March 1827, the plaintiff and his servants cut the chain which fastened the gate of the close, and entered the same and began to plough the land; the defendant then ordered the plaintiff's men to leave the close. On the 21st of June the defendant mowed the grass growing in the close, made it into hay, and afterwards carried it away. Upon this evidence, it was contended by the defendant's counsel, that the plaintiff had not a sufficient possession of the close in question to entitle him to maintain trespass; because a party who has the freehold in law, but not the actual possession, cannot maintain trespass, Com. Dig. Trespass (B 3), and 2 Roll's Abr. 553, Trespass, pi. 45. Here the defendant continued in actual possession. Assuming that the plaintiff by entering acquired a concurrent possession...
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