Weeton and Others v Woodcock and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 248
EXCH. OF PLEAS.
S. C. 7 Dowl. P. C. 853; 9 L. J. Ex. 97. See further, 7 M. & W. 14.
[667] weeton and others v. woodcock and others. Exch. of Pleas. 1S39. -The firat count of the declaration alleged, that the plaintiffs had demised to T. a factory, and the warehouse, engine, and engiue-house, &c., thereto belonging; it then set out a covenant by T. to keep up a. good steam-engine boiler, and to deliver up the premises in good order, with every thing upon them, at the end of the term. There was a proviso for re-entry in case T. should become bankrupt. The declaration then alleged the entry oi T., and that he continued in possession until the term was determined by the plaintiff in consequence of T.'s bankruptcy ; and averred; that a certain steam-boiler theretofore annexed and set up on the demised premises by T., remained and continued so annexed during the term and at the time of its determination, by reason whereof the plaintiffs had become entitlfid to it, and the same ought to have remained and been left on the demised premises, and not to have been disaimexed therefrom. Breach, that the BM. &W.588. WEETON V. WOODCOCK 249 defendants, intending, &c., wrongfully arid without the plaintiffs' consent dis-annexed and removed the said steam-engine boiler from the demised premises, whereby the estate and interest of the plaintiffs in the factory, &c., was greatly injured and deteriorated :-Held, that this was substantially a count in trespass, and could not be joined with a count in trover. [S. C. 7 Dowl. P. C. 853 ; 9 L. J. Ex. 97. See further, 7 M. & W. 14.] The first count of the declaration alleged, that the plaintiffs by indenture had demised to cue Taylor a, certain factory then in hia occupation, and the warehouse, engine, and engine-houses, &c., to the factory and steam-engine belonging. It then set out a covenant by Taylor to keep up a good steam-engine, with a boiler of beaten iron, and at the end of the term to deliver up the premises, and all things thereon, in good repair, and a proviso for re-entry in case of the bankruptcy of Taylor, or non-perfoiimance of the covenants. It then averred that Taylor entered and continued in possession until the term was determined by reason and in consequence of the bankruptcy of Taylor, and the non-performance of the covenants ; and that, at the time of the determination of the term, "a certain steam-engine boiler theretofore annexed, set up, and placed on the demised premises by Taylor, remained and continued annexed, and set up and placed, after the making of the indenture, and during the term," and was used for working the said demised steam-engine, and was proper and necessary for working the same, and at the time of the determination of the term, was the only boiler on the demised premises capable of supplying the engine with steam; and, "by reason of the premises, the plaintiff had become entitled to the steami-boiler, and the same ought to have remained and continued and been left on the premises, and not disannexed or removed without the consent of the plaintiffs." Breach, that the defend-[588]-ants wrongfully, and without the license of the plaintiffs, and against their will, disannexed and removed the steam-engine boiler, by means whereof the estate and interests of the plaintiffs in the factory were greatly injured.(a) The second count was in trover. General demurrer, and joinder in demurrer. The point stated for argument on the part of the defendants was, that the first count was in trespass, and could not be joined with a count in trover. Crompton, in support of the demurrer. There is a misjoinder, as the mutters alleged in the first count are matters in trespass. It is not case, on the ground of the injury being; to the reversionary estate, or of the damages being consequential, but it states matters of trespass direct and immediate to the possession of the plaintiff. The Court then ealled on Cowling to support the declaration. The declaration is good, for the first count ia in case and not in trespass. It begins in case, and not in trespass; and even if the cause'of action would have been better stated in trespass, yet if the Court think that it is meant as a count in case, they will give judgment for the plaintiff on the other count; for if the first be an informal count, the defendant should have demurred specially to that count only. The first count contains no averment that the boiler was the property of the plaintiffs, and that they were in possession of it. But supposing they can maintain an action of trespass for the disannexing, there are many casea:in which a party can waive the trespass arid sue in case. [Parke, [589] B. That might perhaps be so as to the personalty, but there are no such authorities as to land.] It is submitted, that even assuming that the plaintiffs must be considered as in possession, there can be no reason for the distinction between land and personal property. If a plaintiff may waive a direct trespass to a chattel, and bring trover for the supposed conversion, why may he not, as in this instance, waive the wrongful entry on the land, iand maintain case for the consequential damage arising to his interest in the land,|for the disannexing of a fixture which rendered the land more valuable? The authorities repudiate such a distinction. According to Viner's Abr. tit. Actions, M. (o.), pi. 6, certainly it is said, " If a man comes upon my own land and makes a nuisance to mj watercourse, as if he makea a lime-pit, &c., I cannot have an action upon the case against him, for this, but an action of trespass;" but, in the marginal note, Cooper v. St. John (Aleyn, 84) is referred to, where that case was cited and overruled. So, (a) See the declaration set out more at length, ante, 143-4. The plaintiff amended by striking out the words "and converted and disposed thereof to their own use." 250 WEETON V. WOODCOCK 5M.fcW. B90. Sooth v. Oliver (1 Viner's Abr. Actions, K. (c.), pi. 3) goes even further than the present case .on this point. The language of Tindal, C. J., in Holkmd v. Bird (10 Bing. 15, 3 M, & Scott, .363), is general, and applies to land as well as chattels. He says, "Although a, wrongful taking may be a ground of trespass, there are many cases in whiqh a party may waive the trespass and sue in case; such is the action of trover; and no one will deny that trover lies for the subsequent detainer, when the original seizure is an act of trespass." So in Mu,ikett v. Hill (5 Bing. N. C. 694), where the grantor of a license to mine re-entered and forcibly expelled the grantee, it was held that case was maintainable, although Harker v. Birkbeck (3 Burr. 1550) was cited to stew that trespass was [590] the proper form of action. [Parke, B. In Mufkf.lt v. Hill,, there was only a license to work a mine-there was no possession so as to maintain trespass.] That does riot appear, and Harker v. Kirkheck is a strong authority to shew that the plaintiff' might, in the case of Muske.lt v. Hill, have maintained trespass, [Parke, B. Harker v. Birkbeck was the case of an exclusive license, and it was expressly stated that the plaintiffs were in possession of the mine.] Moreton v. Hardern (4 K. & Cr. 223 ; 6 Dowl. A Ry. 275), Willmms v. Holland (10 Bing. 112 ; 3 M. & Scott, 540), Com. Dig. Action, M. 2, are also authorities to shew that a party may bring wise or trespass at his election. Here all that appears is that the lease was determined ; and it was not inconsistent with that, that Taylor should have continued in possession; and if whilst he so continued in possession the assignees had disannexed the boiler, case and not trespass is the proper remedy : Hurchell v. Hornxby (1 Camp. 360). [Lord Abinger, C. B. There the tenant remained in possession after the expiration of a notiae to quit, and Lord Ellenborough said...
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