1849. MURRAY บ. HALL. and form, &c., the plaintiff's case is established, if he proves possession; and the defendant cannot, on such pleadings, offer evidence of title in himself. Lord Denman there says: "If the defendant not only contests the possession in fact, but also relies upon title in case actual possession is proved by the plaintiff, it is far more consistent, not only with the object of the new rules, but with the rules of pleading generally, and with the principles of justice, that his defence on the ground of title should be pleaded specially, and not given in evidence under a traverse of an allegation in the plaintiff's declaration, which is satisfied by proof of possession only. If the defendant contest the prima facie title of the plaintiff, he is at liberty to do so under the plea denying that the close is his: but, if he means to set up superior title in answer to the primâ facie title of the plaintiff, he should plead in confession and avoidance. The court of Common Pleas in the case of Heath v. Milward, and this court in the case of Browne v. Dawson, took the same view of the effect of traversing the allegation that the close is the close of the plaintiff, and considered that it put the possession only in issue." And in Harrison v. Dixon (a), the court of Exchequer held, that, in trespass de bonis asportatis, a plea denying that the goods are the plaintiff's, puts in issue the property in, as well as the possession of, the goods: Parke, B., saying (b) The defendant should have denied that they were the goods of the plaintiff. The doctrine laid down by the court of Queen's Bench in Whittington v. Boxall, is applicable to land, and not to goods. How can a defendant dispute the plaintiff's title to goods, except by denying his possession? There is no plea of liberum tenementum in such a case. This court and the court of Queen's Bench have certainly come to a different de(b) 12 M. & W. 145. (a) 12 M. & W. 142., 1 D. & L. 454. cision on the same point; the court of Queen's Bench Cur, adv. vult. COLTMAN, J., now delivered the judgment of the court. This was an action for breaking and entering the plaintiffs' dwelling-house, and expelling them therefrom; to which the defendant pleaded, first, not guilty,-secondly, leave and licence,-thirdly, a denial that the dwelling-house was the plaintiffs'. (a) Title Joint-tenants (S. a.) pl. 4.; translating Bro. Abr. Tenants in Common, pl. 22., where 32 H. 6, fo. 14. (M. 32 H. 6, fo. 14, pl. 21.), and 1849. MURRAY บ. HALL. 1849. MURRAY v. HALL At the trial before Maule, J., one ground of defence was, that the defendant was tenant in common of the house with the plaintiffs, and that therefore the action was not maintainable. The learned judge told the jury, that, if the evidence satisfied them that there had been an actual expulsion of the plaintiffs from the house by the defendant, their verdict ought to be for the plaintiffs. The jury found for the plaintiffs, damages 351. The defendant afterwards obtained a rule to shew cause why a nonsuit should not be entered (pursuant to leave given at the trial), on the ground that one tenant in common cannot maintain trespass against another, even though there has been an actual expulsion. On shewing cause, it was argued (before the lord chief justice, and justices Coltman, Cresswell, and V. Williams), that this defence, even if sustainable, ought to have been specially pleaded. It is unnecessary to give any opinion on this point; for, we are of opinion that the defence is not sustainable. The court has felt some difficulty on the question, by reason only of the doubts expressed by Littledale, J., in his judgment in Cubit v. Porter. (a) That learned judge there said, that, although, if there has been actual ouster by one tenant in common, ejectment will lie at the suit of the other, yet he was not aware that trespass would lie; for, that, in trespass, the breaking and entering is the gist of the action, and the expulsion or ouster is a mere aggravation of the trespass; and that, therefore, if the original trespass be lawful, trespass will not lie. It appears, however, to us difficult to understand why trespass should not lie, if ejectment (which includes trespass) may be maintained (as it confessedly may) on an actual ouster. And, as it has been further established, in the case of Goodtitle v. Tombs (b), that a tenant in common may maintain an action of trespass for (a) 8 B. & C. 269. (b) 3 Wils. 118. mesne profits against his companion, it appears to us that there is no real foundation for the doubts suggested. We are, therefore, of opinion that the direction of Maule, J., at the trial, was right; and consequently this rule must be discharged. (a) Vide suprà, 446. n. In 2 Bla. Comm. 182., it is stated that "Joint-tenants are said to be seised per my et per tout; by the half, or moiety, and by all." It is true, that, for certain purposes, joint-tenants are potentially seised of aliquot parts of the land held by them in jointure; as, for the purpose of alienation in severalty, either by grant (Litt. s. 288.), or by demise (Doe d. Errington, 3 N. & M. 647.); so, for the purposes of merger (Preston on Merger, 447). And, where the joint-tenancy happens to be between two persons only, their potential aliquot parts may, without impropriety, be termed moieties. But this is not, as the learned commentator, followed by numerous subsequent writers, has supposed, implied in the terms " per my et per tout; "the term “my” signifying, not a moiety," but "not in the least." See the epitaph on La Fontaine's Picard wolf, cited 7 M. & G. 172, n. And therefore Lord Coke gives the exact force of the expression seised per my et per tout," by describing the party so seised as one qui nihil habet et totum habet. Littleton was rightly understood by Houard, who translates, or modernises, Litt. s. 288. thus "On dit communément Rule discharged. (a) que chaque jointenant n'a la propriété de rien et est propriétaire de tout; ce qui veut dire qu'il tient tout conjointement, et ne tient rien en particulier. En effet, la terre, considérée en sa totalité, ou dans chacune de ses parties, ne lui appartient que conjointement avec son associé." - Anciennes Loix des François, Vol. I. p. 362. Though in the books, it is said of joint-tenants only, that they are seised per my et per tout, the position seems to be equally applicable to all tenants who hold pro indiviso, whether they are joint-tenants, parceners, or tenants in common. It may be thought somewhat extraordinary that Blackstone should not have suspected the true meaning of the old French negative "my," as he goes on to say, "They have not, one of them, a seisin of one half or moiety, and the other of the other moiety: neither can one be exclusively seised of one acre and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety : for, he even cites the very accurate language of Bracton, "Quilibet totum tenet, et nihil tenet; scilicet, totum in communi, et nihil separatim per se.' And see 4 M. & G. 573, n. 1849. MURRAY บ. HALL. account of moneys received by him on account of the lord, followed by an account of moneys expended by him on account of the lord, was tendered as evidence of a fact noticed in one of the items of discharge for which the reeve took credit in the account. This entry was rejected, on the ground that it did not appear on the face of the account that the reeve DOE d. WILLIAM KINGLAKE v. DINAH BEVISS. EJECTMENT, for lands in the parish of Taunton- The land sought to be recovered was a district called Haidwood, which was shewn to be within and parcel of the manor of Taunton and Taunton-Deane. (a) Before the Conquest, and down to the passing of the land-tax redemption act, this manor formed part of the possessions of the see of Winchester. (b) By indenture of bargain and sale, duly sealed and delivered, and intended to be inrolled, and bearing date the 19th of February, 1822, between the Bishop of Winchester, of the first part; Lord Glenbervie and Lord Radstock, two of the commissioners appointed for the purpose of regulating, directing, approving, and confirming all sales and contracts for sale, which should be made by any bodies politic or corporate, or companies, for the purpose of redeeming any land-tax charged on all or any of the manors, messuages, lands, tenements, or hereditaments belonging to such bodies politic, &c., --of the second part; Thomas Southwood, of the third inanor (a) Formerly called "the of Taundene" (vide post, p. 474.), afterwards "the manor of Taunton and Tawn Dene," i. e. the manor of the town, and of the valley, of the river Taun or Tone. (b) Vide 1 Dugd. Monast. Anglic. ed. 1655, p. 980. gave credit for any sum applied to the discharge of that particular item. Held, (by Coltman, Maule, Cresswell, and V. Williams, JJ., absente, et, ut videtur, dissentiente, Wilde, C. J.) that the evidence was properly rejected. |