Long v Clarke & another [1894] 1 QB 119

The bailiff climbed over a wall at the back of premises and entered through a window. The plaintiff was the bill of sale holder who already had a man in possession on the premises. He paid off the landlord to protect his existing possession then sued to recover his money. The plaintiff argued that the curtilage of the house was protected from forced entry in the same way as the house itself.

The plaintiff's claim failed and he appealed.

 

Judgment of Lord Esher

"In this case we are dealing with a landlord's bailiff distraining for rent.

What is the ordinary law applicable to such a case? It gives a right to the landlord to do that which, if any other person did it, would he a trespass, and the question is whether what has been done in the present case is within what is permitted by the law of distress.

When a landlord goes into a house to distrain, whether the door he open or shut, he does that which in any other person would he a trespass, and it is just the same if he merely walks across the land to the front door.

The sole question is what limitations on the right of the landlord to go on the premises and distrain the law imposes on him. He cannot go into any building or into any house if he can only do so by breaking into it.

He can go in at the door, which is the most obvious way of entering; but further, he can get in by a window if it is left open.

There is no trespass in doing either of these acts, because he does not break in. So it is incorrect to say, as has been suggested, that the landlord cannot go into the house if he finds a hole in the side of it, and for the same reason, that in so entering he is not breaking in.

This law is applicable to any building into which the landlord wants to get for the purpose of distraining, such as a warehouse, a stable, or a barn. Thus, supposing he enters a curtilage without breaking anything, still he cannot break into any stable or building within the curtilage which is locked.

This shows that under the law of distress the curtilage is no part of the house, and it is incorrect to say that he cannot go into the house if he finds a door or a window open because he has previously got over a wall or gate into the curtilage.

Another defect in the plaintiff's case is this. Supposing the curtilage to be part of the house, the bailiff did not break into the curtilage. He did not break any door or anything else; he merely got over a wall.

I see no difference between getting over a wall to get into the curtilage and getting on to the wall of the house in getting in at a window in it, and it seems to me to he plain that if a landlord can get into a curtilage without breaking anything he may do so, just as he can get into a window on the same conditions.

The case of Scott v Buckley is cited in support of the plaintiff's case but there must he something omitted in the report, for I cannot think that Byles J, who decided it, would have dissented from the decision in Eldridge v Stacey to which he himself was a party only three years previously.

I think, therefore, the action properly failed, and the appeal must he dismissed.

 

Lopes LJ:

I am of the same opinion. A landlord may enter the demised premises to levy a distress, and may commit in so doing an act which in any one else would be a trespass, provided that he does not break open any outer door.

He may walk over a garden or park to get to the building, which in any other person would be a trespass; but when he gets to the building, he cannot break open anything to gain access to it.

In the word "building" I include a stable, a barn, or any other sort of building.

The question raised in this case is whether the landlord or his bailiff may climb over a wall enclosing a yard, and thus get to the building, so as to he able to proceed by any unfastened door or open window to effect a levy in the house.

It is clear to me that he could do so. The yard was no more part of the house than the garden or park which I have mentioned would he. The bailiff breaking nothing in getting into the yard has done nothing wrong.

The case is similar to that of Eldridge v Stacey it is hardly possible to imagine two cases more similar to one another. It was there decided that there is no illegality in distraining for rent by climbing over a fence and so gaining access to the house by an open door. I see no distinction for this purpose between a fence and a wall.

The judges who decided that case were Erle CJ and Williams, Byles, and Keating, JJ. The case of Scott v Buckley was relied on for the plaintiff, and certainly the head-note supports his contention. Looking, however, to the fact that it was decided by Byles, J., not long after the decision of the other case in which he took a part, I cannot think the report is correct, and I think that at least there must have been some distinction between the cases which has not been noticed in the report.

However that may be, I think that the decision in Eldridge v. Stacey should he supported, and consequently that the present appeal should be dismissed."

 

Kay LJ

"If there had been a door in the wall of the yard, and the landlord had effected an entrance by breaking it, I should have thought he would have exceeded the power given him by the law and become a trespasser, and even if the house door had been open would have been a trespasser ab-initio .

It is not, however, necessary to decide that question. That is not what the bailiff did, for he got over the wall without breaking anything.

In any one else the act of getting over the wall would have been a trespass, and the question is whether it is so in the case of the landlord or his bailiff.

The land belongs to the landlord; but he has let it for a term, and has no right to enter, with this exception, that the law permits him to do so to distrain in the case of rent in arrears. If there were no wall, the landlord might walk over the land surrounding the house in order to reach it.

The question is whether climbing over a wall to exercise his right to go on the land makes him a trespasser. If it does, he is a trespasser ab-initio.

No case has said so, and in fact if the word "wall" is substituted for "fence" in the decision in Eldridge v Stacey, that case would be identical with the one we are considering. We are not bound by that decision; but Erle LJ, in giving judgment, pointed out that none of the authorities cited warranted the conclusion that the distress was rendered unlawful by the broker getting over the fence, and in that view I concur.

Three years later there was a case of Scott v Buckley. As it reads in the report, it seems to be an authority contrary to that of Eldridge v Stacey. It was decided by Byles J, who was a party to the judgment in the previous case, and I am driven to conclude that there was some fact not reported which made the two cases distinguishable. The only restriction that the law imposes on the right of the landlord to enter and distrain for rent is that to do so he must not break in.

He has not done that in this case, but has got over a wall, committing in doing so no further trespass than he would have committed in walking across the land if there had been no wall there. I agree, therefore, that the plaintiff's case fails, and that the appeal must he dismissed."

 

Comment

 

The case rules that bailiffs can climb over a wall to enter an unlocked building.