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perty so as to entitle him to maintain an behalf, referring to the previous notice to action of trover.

quit, and desiring the plaintiff to give up Held, also, that the Court below was possession immediately. right in refusing to allow an amendment of On the 15th of October, 1867, the the declaration by converting the action plaintiff wrote to Messrs. Snell, accepting into an action for an account under 4 Anne their offer, and requesting them to have c. 16. 8. 27.

an agreement prepared, and promising

to pay the rent then due. This was a proceeding in error from On the same day he wrote to Mr. a judgment of the Court of Exchequer Senior, stating that he had accepted the Chamber, upon a case stated' under the offer made to him by Miss Lawrence of the Common Law Procedure Act, 1854, and fields at Drayton Green, and had written affirming a previous judgment of the to Messrs. Snell to get the agreement preCourt of Common Pleas.

pared, and promising them to pay the The action was an action of trespass rent then due, and he afterwards received a for breaking and entering the plaintiff's letter from Mr. Senior, dated the 16th of land, with a count in trover.

October, 1867, stating that Miss Law. The plaintiff was a farmer residing at rence had no authority to continue him Southall, and for many years previous to as tenant without Mr. Senior's consent, the action had occupied three closes of as he had an equal interest in the land grass land at Drayton Green, Ealing, as a with her, and again desiring him to give yearly tenant under Miss Lawrence, to up possession immediately. No consent whose agents, Messrs. Sewell, he had from to the plaintiff's continuance of tenancy time to time paid the rent. The lands in was given by or on behalf of Miss Senior. question belonged in fact to Miss Law. On the 11th of November, 1867, the rence and a Miss Senior as tenants in plaintiff paid Messrs. Snell the sum of 121. common.

for half a year's rent, due Michaelmas, The plaintiff had no notice of any other 1867, and received a written receipt for persons being interested in the lands until

the same.

He continued in possession of March 22nd, 1867, when he received a the land until the 23rd of June, 1868, letter from Messrs. Garrard and James, when the defendant, acting under the the solicitors for Miss Lawrence, stating authority of the said Mr. Senior, who had that they were instructed by Miss Law. let the lands to him from the 29th of rence and Miss Senior, “of whom he held, March, 1868, to the 29th of September, to put an end to his tenancy of their land 1868, entered upon the fields in question, and premises at Drayton Green," and and took possession thereof, and put begging him to accept their letter as a lock on the gate, and cut and carried notice to quit at Michaelmas then next.


the value On September 26th, 1867, the plaintiff of which with the aftermath was, as found received from Messrs. Snell, acting as by the jury, as hereinafter mentioned, 671. agents on behalf of Miss Lawrence, but The defendant opened the gate for the without the knowledge or consent of Miss plaintiff's son to take away the hay of a Senior, a letter stating that Miss Law

There was

no evidence rence was willing to let him the fields at whether the gate was kept locked or not. Drayton Green, on a yearly tenancy, at On the 29th of July, 1868, the present the rent of 361. a year, that she had not action was commenced against the dethe power to let the fields on any other fendant. than a yearly tenancy, but that there was At the trial the learned judge gave not much chance of his being disturbed leave to the defendant to move to enter a for the next three years, and asking if nonsuit on the ground that the plaintiff they should send him an agreement ?

and the defendant were tenants in com. Before sending a reply to this letter, mon of the locus in quo, and that one the plaintiff received a letter, dated the tenant in common could not maintain 12th of October, 1867, from Mr. Senior, trespass against his co-tenant for the the father of Miss Senior, acting on her removal of growing crops.

away the


former year.

The jury found a verdict for the plain- the common property-Barnardiston v. tiff for 671., stating that they found that Chapman (4), Mayhew v. Herrick (5). the value of the hay was 551., and that of Trespass will also lie in this case because the aftermath 121.

there was ouster of the plaintiff by the deThe verdict was accordingly entered fendant. The ouster is to be inferred from for the plaintiff for 671. The learned the lock upon the gate, and from the fact judge gave further leave to the defendant that the defendant took away the aftermath, to move to reduce the damages on the which involves exclusive possession of the ground that even if entitled to recover at land by him-Murray v. Hall (6), Stedman all, the plaintiff was not entitled to re- v. Smith (7). In any case it is clear that cover the whole value of the bay and the plaintiff could maintain an action of aftermath. The proceedings were amended account-Pascoe v. Swan (8), Goodtitle v. by substituting the name of Miss Senior Tombs (9), Creswell v. Hedges (10). The for James Trevor Senior, and power was plaintiff ought to have been allowed to reserved to the Court to further amend amend his declaration under stat. 4 Anne them. A rule nisi was obtained by the c. 16, especially as the defendant was defendant to enter the verdict in his allowed to amend. At the least the plaintiff favour, and was afterwards made ab- ought to have a verdict for half the solute.

crops. The case is reported in 38 Law J. Rep. Bulwer (Lumley Smith with him), for (N.s.) C.P. 252. This judgment was after- the respondents.—[Their Lordships in. wards affirmed in the Exchequer Chamber. timated that they were satisfied the case

was one of tenancy in common, and that Gibbons (Curtis Bennett with him), for the argument as to estoppel could not prethe appellant. — First, Miss Senior having vail.] At the trial the case of Bennington stood by and allowed the plaintiff to re- v. Bennington (11) was cited from Roscoe's main in possession is stopped from deny- Nisi Prius, 11th ed. p. 567, where it is ing his title as tenant to her. Conse- wrongly reported. Had the case been quently the notice to quit given by the correctly cited, the judge would have letter of the 22nd of March, 1867, was directed a nonsuit. There was not here invalid as regards Miss Senior, as it is any destruction of the common property. not shewn that Messrs. Garrard and The grass was cut for the purpose of James had authority from her-Right being made into hay, and the action was d. Fisher v. Cuthell (1), Doe d. Mann v. brought before the hay could have been Warlters (2), Doe d. Lyster v. Goldwin stacked. It is clear, therefore, that trover (3). The plaintiff therefore remained will not lie-Co. Litt. 1996, Sir E. V. tenant to Miss Senior, and the case is Williams's Notes to Saunders's Reports, not one of tenancy in common. Secondly, p. 111. This case is similar to Fenninge assume the plaintiff to have been tenant v. Lord Grenville (12), where one tenant to Miss Lawrence alone. The grass when in common of a whale cut up the whale, severed became a chattel for which trover and turned it into oil, and it was held that can be brought, and the carrying away of the grass amounted to a destruction of

(4) 4 East, 121. the common property of the plaintiff and (6) 7 Com. B. Rep. N.S. 229 ; s. c. 18 Law J. defendant. Grass being an article from Rep. (N.s.) C.P. 179. its very nature intended for consump

(6) 18 Law J. Rep. (n.s.) C.P. 161. tion by cattle could not be followed

(7) 8 E. & B. 1; s. c. 26 Law J. Rep. (N.s.)

Q.B. 314. when carried away ; and it is clear that

(8) 27 Beav. 508; 8. c. 29 Law J. Rep. (n.s.) one co-tenant can maintain trover against Chanc. 159. the other where there is destruction of (9) 3 Wils. 118.

(10) 1 Hurl. & C. 421 ; 8. c. 31 Law J. Rep.

(n.s.) Exch. 497. (1) 5 East, 491.

(11) Cro. Eliz. 157. The error in the 11th (2) 10 B. & C. 626; 8. c. 5 M. & R. 357 ; s. C. edition of Roscoe's Nisi Prius is corrected in the 2 Q.B. Rep. 143.

12th edition, p. 828. (3) 10 Law J. Rep. (n.s.) Q.B. 275.

(12) I Taunt, 241.

trover would not lie. See also Jones v. land in question, and there made the Brown (13). Then as to the question of existing crop of grass as it stood into trespass : it is clear there was no ouster. hay, and carried it off. And farther it is Placing the lock upon the gate was a also said, that he in like manner dealt reasonable precaution, and there is no with the aftermath. The question upon evidence that the gate was locked. The that is, whether the finding going simply taking of the aftermath did not involve to the taking the grass and the carrying exclusion of the defendant. The mere it away, there is a foundation for an perception of profits is no ouster- action either of trespass or of trover. Reading's Case (14). With reference to Now, as regards the question of tresthe proposed amendment, it is clear that pass, it appears to be perfectly settled, no such amendment could be allowed, an and there is really no controversy between action of account being a totally distinct the counsel in the case upon that part of class of action from the present, and re- the matter, that unless there be an actual quiring a totally distinct machinery. ouster of one tenant in common by Gibbons in reply

another, trespass will not lie by the one

against the other so far as the land is THE LORD CHANCELLOR. — My Lords, concerned. Therefore what we have to the appellant in the present case com- look at in the findings before us is, whether plains of a decision of the Court of Ex- or not there is anything stated which chequer Chamber.

leads to the conclusion that the plaintiff The whole case turns simply upon this, was ousted by his co-tenant. what are the rights of a tenant in com- It appears to me that there is not a mon against his co-tenant in common in single particle of evidence or circumstance respect of acts by which that co-tenant of fact found in the case which would takes possession either of the lands or of justify us in arriving at such a conclusion. chattels connected with the land ?

All that is alleged that is approximate to In the case in question the subject- it is this, that one tenant in common matter in dispute consists of three fields carried


crop, and that he put situated in the neighbourhood of London, upon the gate which was there a lock. used for the purpose of growing crops of It is found expressly that there is no evi. grass to be made into hay. A question dence as to whether that gate was always was raised on the part of the plaintiff in kept locked or not. The only circum. error upon the special facts which have stance that is supposed to lead to the been found in the case as to whether or inference that there was such an ouster not the parties did in fact hold as tenants is, that there is a finding that the defenin common. Under all the circumstances dant allowed the plaintiff's son to enter, of the case we think that that question or (as the expression is) " opened the gate is not open to the plaintiff in error in the to the plaintiff's son,” to enable him to present controversy. The whole case go upon the land to carry off some seems to have proceeded in the Court former crops which were upon the land. below upon the footing that the plaintiff But even if there had been a finding that and defendant were tenants in common. the gate was locked, that would not have The verdict of the jury did so, and the been sufficient unless it had been shewn point reserved for argument was expressly that the plaintiff was excluded by that whether or not, the parties being tenants locking, or that on some occasion when he in common, an action of this kind would applied to have it opened, it was not lie.

opened. The locking was essential if the The action was in trespass with a count grass was to be converted into hay, in in trover. The alleged trespass on the order to prevent its being stolen and part of the defendant is, that he being carried away by other persons during the one tenant in common, entered upon the night, these fields being in the neighbour

hood of London. Nothing whatever is (13) 25 Law J. Rep. (N.s.) Exch. 345.

said about what the object and intent of (14) 1 Salk. 392.

so putting on the lock was, and nothing

is said whatever to shew that the plaintiff him by his co-tenant. Now it is perfectly was thereby excluded, or of his ever lawful for a tenant in common of land to having made application and having make the grass into hay—for somebody been refused entrance, nor is it said that must make it just as it is lawful for a when the gate was opened to the plain- tenant in common of a whale to make tiff's son by the defendaut to allow him the blubber into oil. That is a perfectly to enter, there was any difficulty upon legitimate purpose. It does not signify the subject, or that anything passed be- whether one or other of the tenants in tween the parties which shewed that the common made use of it, it being made intention of putting the lock there was to use of in an ordinary and legitimate way. exclude the co-tenant in common. There- Trover would not, therefore, lie against fore, so far as the question of trespass is the co-tenant in respect of his having done concerned, it appears to me to be idle to what he did. talk of trespass as

a consequence of a The cases in which trover would lie man making hay upon his own field, for against a tenant in common are reduciblo it is his own, or a moiety of it at least, to this : They are cases in which someand no definite portion of it is mapped thing has been done which has destroyed out as his moiety. It might just as well the common property, or in which there have been said if the defendant had has been a direct and positive exclusion of made hay upon two fields out of the the co-tenant in common from the common three, that as the three fields were held property, he seeking to exercise his rights in common, that would be an exclusion of therein, and being denied the exercise of the plaintiff from the property, as it can such rights. There was the case of the be said from any of the circumstances ship being taken possession of by ono that I find here stated, that the inference tenant in common, and sent to sea withof exclusion is to be drawn because he out the consent of his co-tenant. In that made the hay off the three fields. No case it was held that the property was remonstrance is alleged, nor any inter- destroyed by the act of one tenant in ference on the part of the defendant with common, and therefore trover would lie the plaintiff, nothing but the fact that in respect of the co-tenant's share. But the co-tenant made hay.

where the act done by the tenant in comThe question, then, is, whether that mon is right in itself, and nothing is done making of hay by one tenant in common which destroys the benefit of the other was in any way unlawful. The case of co-tenant in common in the property, Fennings v. Lord Grenville (12), which there no action will lie, because he can was cited at the bar, is expressly in point. follow that property as long as it is in exThe defendant there being a co-tenant in istence and not destroyed. If it is sold, common of a whale, his servant turned another question arises under the statute all the whale's fat and blubber into oil, of Anne. and appropriated them and the bone to The case of Mayhew v. Herrick (5) was himself, and the question was, whether also pressed upon us.

That was a case trover would lie in such a state of circum- where a sheriff seized the common prostances. It was held that trover would

perty of partners, and sold it for the not lie in that case, because the very benefit of one of their number. There purpose of capturing a whale was to turn the peculiar circumstances made it a it into oil. The co-tenant in common conversion by one tenant in common was therefore doing nothing that was against another, and so trover would lie. illegitimate in the use that he was making The sale there was not using the partnerof the whale. The question whether or ship property in the manner in which it not the plaintiff would be entitled to claim was proper to be used for the benefit of part of the profit under the Statute of the tenants in common. But that was Anne would be a very different question. not in the least like the case of making

So long as a tenant in common is only hay out of a field or making oil out of a exercising lawfully the rights he has as whale. As long as the tenant in common tenant in common, no action can lie against is confining his use of that property to NEW SERIES, 11.-C.P.

2 G

its legitimate purpose trover will not lie arriving at his right. The plaintiff has against him.

But the moment he steps chosen to bring an action of trover, and from the legitimate use to that which is he now says, “ I ought to be allowed to illegitimate, as the sheriff seems to have amend by turning this action into an done in that case by disposing absolutely action of account under the statute of of the common property as if the one Anne.” But the whole case is entirely partner had been the sole owner, trover different. The whole question before the will lie.

jury would be different, and the whole acAs regards the statute of Anne, that count would have to be taken upon totally statute was intended to remedy agrievance different principles from anything that was which seems to have existed under the com- done before the jury. We shall save no mon law. For inasmuch as trover would expense to the parties on either side by not lie, by one tenant in common against allowing such a course to be taken, and at his co-tenant, there appears, until the the same time it would be impossible to statute of Anne was passed, to have been retain the present verdict of the jury. great difficulty in a tenant in common That verdict has been founded on an action getting his just rights with regard to that of tort. Of course, any expense of making property which was his in common, but the hay, and so on, cannot have been in. with respect to which he had not received cluded in the computation of damages, his share. Accordingly the statute of which expenses would have to be allowed Anne enacted that there should be an ac- in a proceeding under the statute of Anne count, on behalf of one tenant in common to the person who made the hay. It apagainst the co-tenant in common in pears to me, therefore, that the plaintiff respect of anything that he had received having mistaken his course throughout, beyond his just share, and the remedy is cannot now be assisted. The order which there pointed out for taking that account. he seeks to reverse was properly made, That was a totally different transaction. and we can only dismiss the appeal with Here all that appears upon the findings costs. is that the grass was made into hay as it was always intended to be, and it was LORD WESTBURY. – My Lords, if there carried off. What happened beyond that is any miscarriage in this matter, I think is wholly undetermined by the findings in it must be attributed to the want of the case. We have no right to assume that definite and certain statements in the it was destroyed by being eaten by cattle, special case, which is the subject of the which was one mode suggested in which it present appeal. might have been disposed of. But we have Now the first point that was made on no right to assume that any more than to behalf of the appellant was this— That assume that it was stacked upon the inasmuch as it appears that Miss Law. co-tenant in common's premises, and rence, who was one of the tenants in was there ready to be disposed of and

of the closes in question, shared between the two co-tenants in originally demised the entirety of the common when the proper time for sharing closes to the present appellant, it was came. If it had been sold the remedy contended by the appellant that, in fact, was not by an action of trover, but under the lease so made by Miss Lawrence the statute of Anne for an account. bound the other tenant in common, Miss

My Lords, it is very lamentable when Senior, and that Miss Senior had estopped persons mistake their rights, but we can- herself by her conduct from challenging not, I am afraid, aid them by saying that that lease as not being a lease of the enthough the remedy has been totally mis. tirety, but a lease contined to Miss Lawtaken, the party shall be allowed to pro- rence's moiety alone. Now there is not ceed in another form by way of amend. a single fact found in the case from which ment. When, as in this case, an entirely any such estoppel can be drawn as a different course of action has been pur- conclusion of law. There is nothing sued from that which is pointed out by found in the case to warrant the supposi. the law, the party cannot be assisted in tion that Miss Lawrence in dem sing the


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