Jones v Chapman and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1847 |
| Date | 01 January 1847 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 717
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 18 L. J. Ex. 456. For former proceedings, see 12 M. & W. 124. Referred to, Lows v. Telford, 1876, 1 A. C. 426; Ramsey v. Margrett, [1894] 2 Q. B. 18; Kynoch, Limited v. Rowlands, [1912] 1 Ch. 534.
jones v. chapman and others.( j) Dec. 1 & 2, 1847 ; June 18, 1849.- Under the plea to a declaration in trespass qr. el. fr., that the close in the declaration mentioned was not, at the time when &c., the close of the plaintiff, the defendant may shew a lawful right to the possession of the close, either in himself or in some other person under whose authority he claims to have acted. So held on error in the Exchequer Chamber, per Wilde, C. J., Coltman, J., Maule, J., Erie, J., and Williams, J. : dissentientibus Coleridge, J., and Wightman, J. [S. C. 18 L. J. Ex. 456. For former proceedings, see 12 M. & W. 124. Referred to, Loww v. Telfard, 1876, 1 A. C. 426 ; Ramsey v. iWargrett, [1894] 2 Q. B. 18; Kynoch, Limited v. Mowlamh, [1912] 1 Ch. 534.] Trespass. The first count of the declaration stated, that the defendants, to wit, on &c., with force and arms broke and entered a, certain dwelling-house of the plaintiff', in the county of Denbigh, and there forced and broke open and damaged the outer door thereof, &c. There was a second count for another similar trespass on a different day. The defendants pleaded, first, not guilty ; secondly, to the first count, that the said dwelling-house in that count mentioned was not, at the said time when &c., the dwelling-house of the plaintiff modo et forma. The third plea, to the second count, ; was a similar traverse. Upon these pleas the plaintiff joined issue. There were also pleaa to both counts, that the dwelling-house in the declaration [804] mentioned was the dwelling-house and freehold of one Harriett Myddelton ; to which there were replications of a demise by her to the plaintiff from year to year, and rejoinders : thereto of a determination of the tenancy by notice to quit, before the time of the I committing of the alleged trespasses : and issues were taken upon these rejoinders. At the trial of the cause, before Parke, B., at the Summer Assizes for the county of Denbigh, in 1845, the plaintiff launched his case by proving that he had been in actual possession of, and had resided in, the house in question for about ten years before and up to the time of the alleged trespasses. The defendants then proved that the house was the freehold of Harriett Myddelton; that the plaintiff had occupied it as her tenant from year to year ; that the tenancy had been properly determined before the time of the trespasses ; and that the defendants had entered as her servants and by her authority and command. Upon this evidence the learned judge was of ; opinion that the defendants were entitled to a verdict, not only upon the issues raised on the pleas of liberum tenemeutum, but also upon those raised by the second and | third pleas; and he directed the juty, that, upon those issues, the proper question for i their consideration was, whether, at the times of the committing of the alleged trespasses, the plaintiff was lawfully in possession of the said dwelling-houses, as : against Miss Myddelton ; and that, if the defendants had by their evidence sajtistied : them, that, at the time of the trespasses, the said Harriett Myddelton was lawfully ': entitled to the possession, and that the defendants, as her servants, and by her i authority and command, then committed the trespasses, in such case the second and ; third issues ought to be found for the defendants. To this ruling the plaintiff's counsel tendered a bill of exceptions. The defendants had a verdict upon those issues, : upon which judgment was signed in the Court below ; and the plaintiff thereupon : brought a writ of error. The grounds of error relied on by [805] the plaintiff (after ; setting out the above direction, and alleging the same to be a misdirection in point of ; law), stated that the learned judge ought to have directed the jury, that, upon the evidence so given as aforesaid, the said issues ought to he found for the plaintiff, if the jury were satisfied thereby that the plaintiff, at the several times when &c., was : in the actual possession of the said dwelling-house in which &c. ; (a) This case is inserted here on account of its importance. 718 JONES V. CHAPMAN 2 EX 806- The case was argued (a) on the 1st and 2nd of December, 1847, by Welsby, for the plaintiff in eiror This bill of exceptions laises the question with jespect to which there has existed a difference of opinion between the Courts of Queen's Bench and Exchequer-the Court of Queen's Bench being of opinion thatr in an action of trespass quaie clausum fregit, upon the issue raised by the plea that the close is not the plaintiffs close, the plaintiff is entitled to succeed, if he proves actual possession only , and that the defendant cannot, unclei that plea, dispute the plaintiff's title by setting up title in himself ot in a third peison, and justify the alleged trespass by shewing that it was done by such third pel son's authoiity and command On the othei hand, the Court of Exchequer is of opinion that the question of title is fully open to the defendant under this plea The first case which gave use to the expression of a diffetence of opinion is that of Purnell v Young (o M & W 2SX)r where Parke, B , in a considered judgment of the Court of Exchequei, says, " [f theie had been nothing but the general issue and licence pleaded, and the case hacl occuned before the New Rules, the judge might have so certified, unless it had appeared on the evidence on the general issue on the trial, that the title [806] had come in question, which might have been the case on that plea (independently of any statutory pto-vision) , because it was a denial that the defendant had trespas&ed on the plaintiff's close, and put in issue the fact that it was his close, as well as the fact that the defendant had entered upon it Of that title, possession would be pnma facie evidence against all, and it would constitute a good title against a wrong doei, and none against the person lawfully entitled to the possession, who, though the plaintiff' had the actual possession, might have shewn that he (the defendant) was lawfully entitled to it" His Lordship shortly afterwards proceeds -"But the plea denying the close to be the plaintiff's, since the New Rules, is a denial of the plaintiff's title to the close, to the same extent that he would have been obliged to prove it before under the geneial issue, that is, it is a denial of possession, if the defendant was a wrong doer, if otherwise, of the light to the possession but, in either supposition, it is riecessanly a denial of title, tor, even in the foimer case, possession is title against a wrong doei , and therefore the plea raises a question of title in the action, and prevents the judge from ceitifying" Next followed the case of Hhittvugten v Boxall (5 Q B 139), which is a duect decision of the Couit of Queen's Bench upon this point That was an action of trespass quare clausum fregit, to which the Defendant pleaded, that the close was not the plaintiff's property, and it was held that, under this plea, the defendant could not give evidence of title irr himself, and that the plaintiff established his case by proving possession merely On that occasiorr the present question was fully considered Lord Derrman, C J, says, "The counsel Joi the defendant, upon the argument of the case, relied very much upon air expressron which fell from Mr Baron Parke in pronouncing the judgment of the Court of Exchequer in the case of Purnell v Young, and which certainly is at variance with J807] our view of the case " Arrd again, " This dictum in Purnell v Young is that from which we dissent, concurring fully with the decision of that case " In the case Of Harrison v Duon (12 M & W L4I4), which followed very shortly after this decision of the Court of Queen's Bench, Parke, B, says, "Thrs Couit and the Court of Queen's Bench have certainly come to a different decision on the same point, the Court of Queen's Bench having held that thcte ought to be a special plea, in order to dispute the plaintiff's title as distinguished from his mere possession we have thought differently" It appears, therefore, from these cases, that the present questron remains to he settled by this Court By the rule of Hilary Terra, 4 Will 4, it is order eel that, " in actions of tiespass quare }lausum fregit, the plea of ' Not guilty' shall operate as a denial that the defendant Committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession, or right of possession, of that place, which, if intended to be denied, must be traversed specially " It is submitted that the view which the Court Of Queen's Bench have taken of thrs question is the coriect one It may be conceded that, before the New Rules, the defendant was at liberty, under the general issue, to ahew that, as against him, the plaintiff had no right to the possession, because some person other than the plaintiff had the right The New Rules, however, were framed (a) Before Wilde, C J, Coleridge, J, Coltman, J, Maule, J, Wrghtman, J r Erie, J , and Williams, J 2 EX 808. JONES V. CHAPMAN 719 chiefly with a view to remove the great inconvenience which constantly used to arise ;at trials from the production of evidence which came unexpectedly upon the other side; and much inconvenience must still arise, if the allegation in the declaration be held to be capable of two meanings, viz. of possession and of title. Possession has ever been held sufficient to maintain an action of trespass against a wrong doer; and the plaintiff's case is primil facie established by such proof. The rule of Court orders, ; that the plaintiff's [808] possession, or right to possession...
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