Ryan v Shilcock [1851] 7 Exch 72

 

Background

The plaintiff was a tenant of the defendant of premises including a stable, which was a detached building.

The rent for the property was in arrears so the defendant landlord entered the stable and distrained goods.

He entered by pulling out the hasp and staple lock from the wooden door without unlocking the padlock.

The tenant sued for an illegal distress but the trial jury found that the staple had been pulled out without violence and that entry and distress was lawful.

 

The plaintiff appealed to the Court of Exchequer.

Judgment of Pollock CB: "In this case the question turned upon the power of a landlord to make a distress, that is, how far he was justified in making an entry into premises, for which purpose he used no more force than was necessary to open the outer door, which was shut to keep the door closed only, and not to keep people out. According to the evidence in the present case, the door had on it a padlock with a staple; but the mode by which the owner and everyone else opened the door in order to obtain admittance was by pulling out the staple, which served much in the same way as a button or nail does, which is sometimes to be found used for keeping gates "shut," an ambiguous term, and meaning either a mode of preventing a door from opening of itself, or from being opened by force or violence, or by such persons as have the key or some other means of opening the door.

The jury found, upon the question being expressly put to them, that the padlock and staple were not for the purpose of keeping the door fastened, but merely closed; and as it is no part of the present question whether the verdict was against the evidence, the question is reduced to this, namely, whether a landlord, who on coming to his tenant's premises for the purpose of distraining finds the outer door closed, but capable of being opened by lifting a latch, is justified in so doing. We are of opinion that the landlord has authority by law to open the door in the ordinary way in which other persons can do it, when it is left so as to be accessible to all who have occasion to go into the premises.

In the First Institute folio 161a, Lord Coke, in commenting upon Littleton, explains the meaning of the term "inclosure," to be found in the 137th section, in the following words: "Inclosure . . . . for the lord cannot break open the gates, or break down the inclosures to take a distress; and therefore the law accounts it a disseisin." Now, if these two matters be taken together, inasmuch as breaking down the inclosures would clearly be a forcible entry, we think that the breaking open the gates must be understood to be such a breaking as is also equivalent to a forcible entry; for Lord Coke proceeds to say: "But all these are intended by Littleton to be disseisins after an actual seisin had, and when the rent is behind; otherwise none of these are disseisins at all." Now, there is a passage in Fitzherhert's Abridgment 'Distress' pl.21, which was much relied upon by the plaintiff, "Nota, that a man came to the stable of his tenant to make a distress, and when he came, the door was shut with a bar, and he put in his hand to a hole (il mitt eins sa main a un ptuz) and took away the bar and opened the door, and entered and took two cows in the name of a distress; and because he opened the door in this manner, it was adjudged that the distress was tortious."

On consulting the dictionary, we find that the word ptuz signifies a hole. It is pretty manifest that the operation alluded to in the preceding passage very much resembles that of a person who, on finding a hole in a door or pane of glass, puts his hand in through the hole to remove the fastening of the door or window, and so gains admittance into the premises, which no doubt amounts to both a burglary and trespass, as such is not the accustomed mode of obtaining admittance into the premises.

The passage from Lord Coke is a direct authority in favour of the defendant; and that from Fitzherhert, when examined, turns out to be so also.

We may observe that, as to the passage referred to during the argument in Comyn's Digest, 'Execution', that the sheriff may not open a latch, there is no reference to any authority in support of it; and it is clear that the cases cited do not support that proposition. However, that passage applies only to a sheriff entering a dwelling-house under an execution. As the rule will be discharged on this ground, it therefore becomes unnecessary to express any opinion upon the other questions in the case."

 

Summary

This judgment confirms a bailiff may enter by normal means just like any other visitor to or user of premises. That includes lifting a bolt or turning a key that is in the lock.