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1876

Lows

v.

H. L. (E.) 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).

TELFORD.

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 litigation appears to be this:

(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.

transaction which has led to this There was a tenement in Carlisle,

(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.

1876

Lows

v.

TELFORD.

not a house where any persons were residing, but premises where H. L. (E.) 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.

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

1876

Lows

H. L. (E.) 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.

V.

TELFORD.

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 Lows indicts Westray and Telford for a forcible entry. He indicts those two with other persons, who do not take any proceedings, but he

1876

Lows

v.

TELFORD.

indicts those two. They are acquitted on the trial at quarter H. L. (E.) 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

H. L. (E.) 1876

Lows

v.

TELFORD.

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.

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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."

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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.

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