Bannister v Hyde & Collins [1860] 2 E&E 627

February 13th, 1860.

The man in possession of goods distrained for rent, having quitted the house for the purpose of refreshment, found on his return, the door purposely locked against him by the tenant, and broke it open for the purpose of re-entering.

Held that, there being no evidence of an abandonment of the distress, the man in possession was justified in so re-entering.

The declaration stated that defendant broke and entered plaintiff’s shop and dwelling-house, and broke open the outer and other doors of the said shop and dwelling-house said severed and removed from the said shop and dwelling-house divers trade and other fixtures of plaintiff, and seized plaintiff’s goods, and converted the said fixtures and goods to defendant’s own use, and wrongfully deprived plaintiff of the use and possession thereof.

Plea. Not guilty, by stat. 11 G. 2, c. 19, s. 21. Issue thereon.

At the trial, before Blackburn J., at the Surrey Summer Assizes, 1859, it appeared that the plaintiff was tenant of the shop and dwelling-house in question to the defendant Hyde; and that, on 29th April, 1859, the other defendant Collins, a broker employed by Hyde for the purpose, levied a distress upon the premises for a quarter’s rent in arrears.

A man named Mitchell was put into possession of the distress, and remained in possession till 4th May following; when he went out of the house for a short time to get some beer, and on his return found that the plaintiff had locked him out. The plaintiff refused to allow him to re-enter, whereupon Mitchell, with the sanction of both defendants, broke open the back door, and re-entered; not being otherwise able to obtain an entrance. The goods were condemned on the following day.

The learned Judge was of opinion that this re-entry was justifiable under the circumstances, and he directed the plaintiff to be nonsuited.

Doyle, in last Michaelmas Term, obtained a rule, calling on the defendants to show cause why the nonsuit should not be set aside and a new trial had, on the ground that the learned Judge ought not to have directed a nonsuit.

Malcolm now appeared to show cause, but the Court called upon Doyle to support the rule.

Doyle, in support of the rule. The man in possession had no right to break open the outer door to regain admission. The plaintiff cannot contend that the distress had been abandoned; but the man in possession was certainly not ejected by the tenant, but went out voluntarily, for a purpose of his own. No doubt he intended to return; but he had no right to regain admission by force. The person who put him in possession ought to have made arrangements to prevent the necessity of his leaving the house. [Blackburn J. He had his meals in the house; but went out for some drink. I did not put it to the jury whether he went out for a reasonable purpose.] Swann v. The Earl of Falmouth (8 B. & C. 456) will probably be relied on for the defendants. But that case merely decides that it is riot necessary for the landlord, on distraining goods, to leave any one in possession of them; and is no authority to show that where some one in possession chooses to leave the house he may break it open to regain admission. Russell v Rider. (6 C. & P. 416) shows that such an act is illegal, [Crompton J. In that case the length of time which elapsed before re-entry was made was considered as evidence of an abandonment of the distress: if there had been no abandonment, there would have been a right to re-enter. Blackburn J. That case is rather against the plaintiff.] The question here is, whether, at all events, there was, under these circumstances, any right to re-enter by force. [Blackburn J. In Eagleton v. Gutteridge (11 M. & W. 465) it was held that there was.] There the man in possession had been forcibly ejected. [Crompton J. Does not the keeping out the man in possession, the goods distrained being still in gremiolegis, come to the same thing?] The re-entry ought not to be made in any way likely to lead to a breach of the peace. That seems to be the view taken by the Court in Rich v. Woolley (7 Bing. 651). [Wightman J. Have you any authority for the distinction between a forcible putting out and a forcible keeping out?] There does not appear to be any direct authority upon than point. In Dod v. Monger (6 Mod. 215) it was held that, where the distrainer had quitted possession of the goods, the retaking possession of them by the tenant was not a rescous, But Bayley J., in Swann v. The Earl of Falmouth (8 B. & C.456), points out that Dod v. Monger (6 Mod. 215) must be considered with reference to the state of the law at the time when it occurred, that is, before stat. 11 G. 2, e. 19; until the passing of which statute the landlord had no right to keep the goods on the premises, and, therefore, if he quitted possession whilst the goods remained on the premises, would be held to have abandoned the distress. [Crompton J. I doubt whether, in the present case, there was even a retaking at all. Had the man in whose charge the goods were really given up possession, even for a moment?] In Blades v. Arundale (1 M. & S. 711), which was an action of trespass by the sheriff against the landlord for distraining goods previously seized under a fi. fa., it appeared that the sheriff‘s officer had gone to the house, and, after giving notice to the debtor of the writ, laid his hand on the table, saying, "I take this table," locked up his warrant in the drawer, took the key, and went away, leaving no one in possession. Lord Ellenborough said, "The question here is whether by quitting the premises after the seizure, arid leaving no one in charge of the goods, he did not relinquish the possession." "In this case, what is there to show a continuance of the possession after the officer who made the seizure withdrew?" But, even if possession had not been abandoned in the present, case, the question still remains, whether the re-entry might be forcibly made. If the landlord could not break the outer door for the purpose of making the distress (and in Brown v. Glen (16 Q. B. 254) it was held that he could not break open even the door of a stable not within the curtilage), it is difficult to see how he, or the man in possession (who could have no greater power than the landlord), could break open the outer door for the purpose of regaining possession of the goods distrained.

Wightman J. I am of opinion that the nonsuit was right. It was decided, in Swann v. The Earl of Falmouth (8 B. & C. 456), that the quitting possession of goods, by the landlord, after he had distrained them, was not necessarily an abandonment of the distress. In the present case there was no evidence of an abandonment, but the contrary. The man quitted, for a short time, the house in which the goods were, but clearly bad no intention of abandoning them. On his return, he found the door locked against him; that placed him in the same position as if he had been forcibly ejected from the house, and therefore, was held in Eagleton v. Gutteridge (11 M. & W. 465), gave him the right to break open the outer door, if necessary, to regain possession.

Crompton J. If the question were, whether there was a strict necessity for the man in possession leaving the house, the case, perhaps, would not have been properly put to the jury. But I think my brother Blackburn was right in acting on the authority of Swann v. The Earl of Falmouth (8 B. & C. 456). According to that case, what was done by the man in possession, even f not a matter of strict necessity, was not necessarily an abandonment of the distress: and, when it was once admitted that there was no evidence of abandonment, the plaintiff’s case was at an end. During the temporary absence of the man in possession, the goods remained in the custody of the law; and, on his being forcibly kept out, which amounted to the same thing as his being forcibly turned out, he was justified, as was laid down in Eagleton v. Gutteridge (11 M. & W. 465), in breaking open the door in the exercise of his right, not to retake (for he had not abandoned), but to retain possession of the goods distrained.

Blackburn J. I also am of opinion that the nonsuit was right. There was evidence to go to the jury that the man in possession went out of the house for a purpose of his own, perhaps not a necessary one, and that he found the door locked against him on his return. I directed the jury, first, that, if he went out with the intention of returning, the distress had not been abandoned in point of law; and I directed them, secondly, that, in such case, he was justified in using force, if necessary, for the purpose of re-entering. The counsel for the plaintiff, upon this, elected to be nonsuited. Eagleton v. Gutteridge (11 M. & W. 465) is a conclusive authority that the person in possession, if kept by force from the actual possession of goods distrained and in his constructive possession, has a right to use force for the purpose of re-entering upon such actual possession.

Rule discharged.

Source: Bannister v Hyde [1860] 2 E&E 627