Plea: first, not guilty, whereon issue was joined; secondly, as to the assaulting, seizing, and laying hold of the said Frances, and pulling, thrusting, pushing, and dragging her about, and forcing and compelling her to go into a certain highway, as in the declaration mentioned, that the defendant Harland, before and at the said time when &c., was lawfully possessed of a certain dwelling house, with the appurtenances, situate and being at Studley, in the county of York, and being so possessed thereof, the said Frances just before the said time when &c., to wit, on the same day and year in the declaration mentioned, was unlawfully in the said dwelling house, and with force and arms making a great noise and disturbance therein, and at the said time when &c., stayed and continued therein making such noise and disturbance without the leave or licenee, and against the will of the defendant Harland, and during all that time greatly disturbed and disquieted the defendant Harland in the peaceable and quiet possession and enjoyment of his said dwelling house, and thereupon the defendant Harland then requested the said Frances to cease making her said noise and disturbance, and to go and depart from and out of the said dwelling house, which the said Frances then wholly refused to do, whereupon the defendant Harland, in defence of the possession of his said dwelling house, and the defendant Bailey, as his servant and by his command, at the said time when &c., gently laid their hands upon the said Frances in order to remove, and did then remove, the said Frances from and out of the said dwelling house, and in so doing did necessarily a little pull, thrust, push, and drag her about, and force and compel her to go into the said highway, as they lawfully might for the cause aforesaid, doing no unnecessary damage to the said Frances on that occasion, which are the said supposed trespasses in the introductory part of the plea 1840. NEWTON v. HARLAND. 1840. NEWTON V. mentioned, and whereof the plaintiffs have complained against the defendants. Verification. Replication to the second plea, as to the several tresHARLAND. passes in the introductory part of that plea mentioned and therein attempted to be justified that the defendants, at the said time when &c., of their own wrong, and without the cause by them in their said second plea alleged, committed the said several trespasses in the introductory part of that plea mentioned, in manner and form &c. concluding to the country. The cause was tried before Parke B. at the Summer assizes for the county of York 1837. The facts were not very clearly ascertained at this trial, but as they ultimately appeared at the subsequent trials they were as follows. The plaintiff A. Newton, on the 1st of September 1836, hired of the defendant Harland, for the period of six months, several rooms in a house which Harland occupied at Studley, near Ripon, in the county of York. The six months expired on the 1st of March 1837, and the rent not having been paid, Harland on the following day, and the other defendant Bailey as his assistant, distrained the goods of the plaintiff A. Newton, and Mrs. Newton having locked the doors of the rooms, and refused to give up the keys, Harland employed a blacksmith to pick the locks. In the evening of the same day Mrs. Newton was requested to quit the premises, and having refused, Harland again entered the rooms, accompanied by four or five persons, and compelled Mrs. Newton and her children and servants to leave the apartments, Harland himself laying hold of Mrs. Newton's arm, and leading her out. Upon the facts as proved at the first trial, Parke B. told the jury that the second plea was made out, and directed them to find the issue raised by that plea for the defendants. The jury having, in pursuance of this direction, found their verdict on the second issue for the defendants, Wilde Serjt., in Michaelmas term, 1837, obtained a rule for a new trial on the ground of misdirection, contending that the evidence given in support of the second plea established no justification in respect of the assault, and that the fact of the plaintiff A. Newton being in possession of the premises having been admitted by the distress, the defendant Harland was guilty of an indictable offence in forcibly expelling Mrs. Newton and her family from the apartments. He cited the 5 Ric. 2. stat. 1. c. 8., Comyns's Dig. Forceable Entry, (A. 2.), and Hillary v. Gay (a); distinguishing the present case from Taunton v. Costar (b) and Turner v. Meymott. (c) Alexander and Tomlinson, in the following Easter term, shewed cause. They submitted that the defendant Harland was lawfully entitled to the possession of the premises, and that he was justified in what he had done, having used no unnecessary violence. They cited The King v. Oakley (d), The King v. Wilson (e), Hawkins, P. C. 64. s. 3., Taunton v. Costar, Turner v. Meymott, Butcher v. Butcher (g), Taylor v. Cole (h), Rogers v. Pitcher. (i) They also contended that the replication de injuriâ did not put in issue the lawfulness of the possession, and that the plaintiffs should have replied the demise— citing Crogate's Case (k), Selwyn's Nisi Prius, 8th ed. p.1349., Taylor v. Smith (l), and Bardons v. Selby. (m) TINDAL C. J. This case involves an important question, namely, whether a landlord has a right to enter 1840. NEWTON v. HARLAND. 1840. NEWTON v. HARLAND. and expel by force a tenant who holds over after his term has expired. I should have great difficulty in agreeing to the affirmative of that proposition, for I do not see how the defendants can justify the expulsion of the female plaintiff under a possession obtained by an act which in itself is criminal. It seems to me that the cause must go down again to a new trial, in order that the facts with respect to the time and the manner of the entry by the defendants may be more precisely ascertained, and the matter placed in such a shape as will enable either party, if so advised, to obtain the judgment of a court of error upon the point. PARK and BOSANQUET JJ., concurred. COLTMAN J. I express no opinion on the main point, but I think that the parties should not be concluded by the judgment of this court. Rule absolute. The cause was again tried before Alderson B. at the Yorkshire Summer assizes, 1838. The facts having been given in evidence, and Hillary v. Gay (a) cited on the part of the plaintiffs, the learned Baron told the jury that the question of justification was a mixed question of law and fact; that where a part of a house is let for a certain period, and the tenant refuses to quit at the expiration of the term, his licence to remain ceases, and the landlord is entitled to turn him out, using no unnecessary violence. That, with respect to the second issue, the questions for the jury to consider were, whether the apartments had been hired by the plaintiff A. Newton for a certain term which had expired, and whether Mrs. Newton, on being required (a) 6 C. & P. 284. to quit, had refused to do so. The learned baron said that, if these facts were made out to their satisfaction, they must find for the defendants on the second issue; but lest the Court of Common Pleas should not agree in opinion with him, his lordship directed the jury to assess the damages upon that issue contingently. The jury returned their verdict for the plaintiffs on the first issue, and for the defendants on the second, and they assessed the contingent damages at 100%. The counsel for the defendants, however, objected that the damages could not be so assessed without their consent, whereupon the associate entered the verdict without the assessment of damages. Warren, in Michaelmas term, 1838, in pursuance of leave reserved to him at the trial, moved to enter a verdict for the plaintiffs on the second issue for the damages assessed by the jury, or for a new trial on the ground of misdirection. The Court refused a rule to enter a verdict for the plaintiff on the second issue for the damages contingently assessed, as the defendants had not consented to the assessment; but granted a rule for a new trial, against which Cresswell, Alexander, and Tomlinson, in Trinity term 1839, shewed cause. They submitted, as on the previous argument, that the plaintiff A. Newton's term having expired, the defendant Harland had a right to the possession of the apartments; and that, having entered and taken the actual possession, he was justified in expelling Mrs. Newton as a trespasser in the manner that he had done. Warren, in support of his rule, contended that the entry of the defendants to take possession amounted in law to a forcible entry; Viner's Abridg. Forc. Entry, A., 1840. NEWTON V. HARLAND. |