Murray, Ash, and Kennedy v Hall
| Jurisdiction | England & Wales |
| Judgment Date | 14 February 1849 |
| Date | 14 February 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 175
IN THE COURT OF COMMON PLEAS
S. C. 18 L. J. C. P. 161; 13 Jur. 262.
murray, ash, and kennedy v. hall. Feb. 14, 1849. [S. C. 18 L. J. C. P. 161; 13 Ju-r. 262.] Trespass quare clausum fregit lies by one of several tenants in common against his co-tenant, where there has been an actual expulsion. This was an- action of trespass for breaking and entering the dwelling-house of the plaintiffs, and expelling them therefrom, and seizing and converting their goods. The defendant pleaded,-first, not guilty,-secondly, as to the breaking and entering the dwelling-house, leave and licence,-thirdly, that the premises were not the premises of the plaintiffs,-fourthly, as to the goods, leave and licence,-fifthly, that the goods were not the goods of the plaintiffs : upon which issue was joined. The cause was tried before Maule, J., at the sittings at Westminster, in Easter term, 1847. The facts that appeared in evidence were as follows :-The three plaintiffs and one Hart had jointly become tenants of the premises in question,-a room used as a coffee-room by the members of a temperance society,-to one Hall. On the 23rd of November, 1846, the defendant and Hart forcibly expelled from the premises a person named Adams, who had been placed there by Murray. On the part of the defendant, it was proved that Hart, on the 5th of November, 1846, surrendered his [442] interest to the defendant, by a document of which the following is a copy :- "Mr. W. Hall. "Sir,-The premises I and my co-partners hold of you, being situated No. 11 Stacey Street, St. Giles's, I, in the name of the same, give up, as we cannot pay you the rent due, my co-partners having misapplied the same.-Your's, &c. "JOHN hart, " P.S.-I have given the key to Mr. G-. for you.'! It was then insisted, for the defendant, that the surrender by Hart at all events enured as a surrender of his own interest, and made Hall tenant in common with the three plaintiffs ; and that one tenant in common could not maintain trespass against his companion, even for an actual expulsion : CiMtt v. Porter (a). On the part of the plaintiffs, it was objected, that since the new rules, a surrender must be pleaded specially. The learned judge told the jury, that, if the evidence satisfied them that there had been an actual expulsion of the plaintiffs from the premises by the defendant, their verdict ought to be for the plaintiffs (6). The jury returned a verdict for the plaintiffs, damages 351. Wallinger, in the course of the same term-, obtained a rule nisi to enter a nonsuit, pursuant to leave reserved. Parry, in Easter term last, shewed cause. That one of several tenants in common may maintain ejectment [443] against his co-tenant, will not be disputed. The question is whether trespass also is not maintainable, where there has been an actual expulsion of one tenant in common by his companion. Wilkinson v. Haygarth (16 Law Journ., N. S., Q. B. 103) is a-distinct authority that it is. It was there held that trespass lies by one tenant in common against his co-tenant (or the lessee of the latter) for digging up and carrying away the soil of the close (peat) of which they are tenants in common; such an act being an ouster. And Lord Denman says : " My notion of peat is, that it is not any thing growing, but that it is decayed vegetable matter, which (a) 8 B. & C. 257, 2 Mann. & E. 267. And see Wiltshire v. Sidford, 1 Mann. & E. 403. (6) The jury were discharged, by consent, as to the fourth and fifth issues. . 176 MUBEAY V. HALL 7 C. B.4M. has become a part of the soil itself,-part of the close which is the subject-matter of this co-tenancy. Now, it is admitted,-indeed, it could not be denied,-that an actual ouster will entitle one tenant in common to maintain trespass against his co-tenant ; and that the taking of some things is an ouster. There can be no doubt, the destruction of the thing itself, is an ouster. Here, the thing itself is destroyed by the act of the defendant: and Clayton v. Corby (5 Q. B. 415) is a distinct authority that one tenant in common may maintain the action of trespass against the other, when that which is the subject of the common property and enjoyment has ceased to exist in consequence of the wrongful act of such co-tenant." In Cubitt v. Porter, the alleged trespass was, the pulling down a party-wall, for the purpose of rebuilding: that clearly was no destruction of the subject-matter of the tenancy in common. At all events, this defence was not open to the defendants, it not having been pleaded specially. A question of title cannot be raised under a plea of possession. Heath v. Milward (2 N. C. 98, 2 Scott, 160); Browne v. Dawson (12 Ad. & E. 6~24). Lord [444] Denman, in delivering the judgment of the court of Queen's Bench, in Whittington v. Boxall (5 Q. B. 139), says: "If the defendant not only contests the possession in fact, but also relies upon title, in case actual possession is .proved by the plaintiff, it is far more consistent, not only with the object of the new rules, but with the rules of pleading generally, and with the principles of justice, that his defence on the ground of title should be pleaded specially, and not given in evidence under a traverse of an allegation in the plaintiff's declaration, which is satisfied by proof of possession only. If the defendant contests the prima facie title of the plaintiff, he is at liberty to do so under the plea denying that the close is his : but, if he means to set up superior title in answer to the prima facie title of the plaintiff, he should plead in confession and avoidance. The court of Common Pleas, in the case of Heath v. Milward, and this court, io the case of Browne v. Dawson, took the same view of the effect of traversing the allegation that the close is the close of the plaintiff, and considered that it put the possession only, in...
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