Nash v Lucas [1867] 2 QB 590

A bailiff went to a house for rent arrears but the door was locked. Later a tradesman, a Mr. Back employed by the landlord was allowed into the house by the tenant Mr. Nash to carry our repairs. The tenant left the house locking both doors with the tradesman still inside. The bailiff was outside and suggested opening the window then unlocked the front door from inside and the bailiff walked in. The tenant claimed trespass and the levy was wrongful interference of goods. Judgment for Nash was appealed to the High Court.

 

Judgment of Cockburn J:

"I am of the opinion that the rule must be refused. It is quite unnecessary to decide, if the defendant and the broker had not been parties to the original trespass, whether, on the door being opened by a third person, the entry for the purpose of making the distress would have been lawful. Here the broker himself suggests to Back to open the window and get into the house, and so out by the front door, and the defendant himself was present, and the broker afterwards enters on the door being opened by Back as the broker had suggested. It must therefore he taken that both the defendant and the broker were parties to the trespass, or act, whereby access was obtained. Now the act, or trespass, was opening the window, which was closed but not fastened.

Counsel for the landlord contended that it is lawful to open a window, provided you do not break anything. The old authorities do not go so far as the more modern. The later authorities say you may open a door which is only fastened by a latch: that I think was going a very long way; and I am not surprised that in America the courts have not pursued the same course as the English Court of Exchequer. In Chief Baron Gilbert's time it would appear that a landlord could not open an outer door for the purpose of distraining if it were shut. The Court of Exchequer have held that he might open a door which was closed but not fastened;4 and if a man leaves his door unfastened there may he an implied licence to any one who has business to enter the premises. But that must stand on its own ground; the principle will not apply to a closed but unfastened window. Again, it has been said that you may go in at an open window to make a distress. "But it is nowhere said you may open a window for the purpose. In Sandon v. Jervis the officer touched the execution debtor by putting his hand through a pane of glass in a window which had been broken in a scuffle to which the officer was a party, though the pane was not broken by him, and it was held a legal arrest.' That case also stands on its own particular ground; and the Court do not go further and say the officer would have been authorized to open the window if not fastened, but only that the window being already open, the arrest was lawful. Therefore the authorities are limited in application either to the case, where the door is shut but can be opened without violence, or where the window is open and can be entered without doing any violence. But if the window he shut, you are doing violence if you open it, when neither directly nor impliedly is the entry made by the licence of the owner of the house. The entry here was therefore unlawful, and the rule must he refused.

Mellor J: I am of the same opinion. The cases seem to me to have gone quite far enough. But there is no case which decides that a landlord, with a view to distrain, may open a window which is shut but not fastened. As to the point that the entry of the broker was by the door, and therefore legal: in Sandon v Jervis Hill, J., says: "It was also argued that the officer, by putting his hand through the broken pane, had violated the privilege of the house. But the pane was not broken by him; and I think that the officer, touching the plaintiff through the pane, had as much right to make the arrest through the pane as he would have had to go at once into the house and make the arrest if the door had been left open by the owner, or even broken by third parties and then left open. That proceeds on the assumption that the officer had had nothing to do with the breaking. Now the broker here recommends the mode of entry which led to his subsequent access to the house by the open door, and therefore the case is distinguishable; consequently as the entry must he taken to have been through the window, the distress was not lawful, and the plaintiff is entitled to keep her verdict, and the rule must be refused."

 

Comments

A bailiff entering a house by opening a closed but unlocked window is unlawful

A bailiff is entitled to enter without using force without permission

Opening a closed window may be a forcible entry without permission.

Leaving a window open is an invitation to persons on lawful business to enter

Pollock CB to counsel in Nixon v Freeman [186O]. Opening a closed window is unlawful

Breaking a pane of glass in order to open a locked window from the inside is unlawful.