SUPREME COURT.

Evening Star, Issue 3108, 4 February 1873, Page 3

SUPREME COURT.

IN BANCO,

(Before his Honor Mr Justice Chapman )

White and Another v. M'Kellar and Others.—Hia Honor delivered judgment in this case, yesterday, as follows :—ln this action, the plaintiffs seek to recover damages from the defendants for bieaking and entering the close of the plaintiffs, and expelling them therefrom, and for the wrongful conversion of certain property. There are also counts upon an award, and an amended award, and a money count for certain expenses. As the pleadings are very voluminous, it will be convenient to consider each line of pleading, following the order of the counts—a course pursued with little deviation by the learned counsel in the course of the argument. The first count allej.es that the d( fondants broke and entered the close of the plaintiffs (describing the same very fully as run 324, in the Province of Otago, as delineated in the margin of the count), and destroyed the herbage, &c, and broke and entered certain buildings thereon, and took possession of the sheep of the plaintiffs, and drove them away, and expelled and put out and amoved the plaintiffs and all their sheep and servants from the said close, and kept and continued them so expelled, &c. 'Jhe second plea is pleaded not to the whole count (and this is important), but to so much thereof as complains of a supposed breaking a: d entering, and it alleges that the close in the first count mentioned was at the time when, &c,, the joint property of the defendants and the plaintiffs, and was held by them as tenants in common, and that the defend- nts entered with sheep, &c , as they lawfully might, which is the trespass complained of r ow if this pica had been pleaded to'the whole count it would undoubtedly have been open to the objectio i founded on Murray v. Hall, 7 C.8., 441, Wilkinson and Hay garth, 12 Q. 8., 827, and Steadman v. Smith 8, Ea. and 81., p. 1, all of which affirm the principle that one tenant in common may maintain an action against his co-tenant for an actual ouster. Hence, a plea, setting up the co tenancy of the defendants as a justification of the ouster or expulsion, would be bad. But the plea makes no such attempt. It justifies only the breaking and entering with sheep, and, as the sheep would inevit ably crop the herbage, the damage to the herbage is inferentially justified also. Now this, as it seems to me, is just what a co-tenant has a right to do. Jacobs v, Seward, Law Rep. 4, C. P. 328, is authority for this. In that case it was hold (aft.r considering Berrington v. Berrington, Oro. Hiz. 157) that one tenant in common' cannot maintain trespass against his co-tenant for entering in due season and carrying away the whole produce, viz., a crop of hay. In the case of land held for pastoral purposes, the whole year must be considered “ in di\e season,” and each and every co-tenant has primarily a* equal right t° enter with sheep and take the herbage. Limited as the plea is, therefore, 1 have no doubt that it is a good plea. The second replication is by way of new assignment. It alleges that the plaintiffs sue not only for trespasses, attempted to be justified by the second plea ; but also for other trespasses, viz,, the alleged expulsion of the plaintiffs by the defendants. To .this replication the second rejoinder is in substance as follows That the alleged expulsion, &c. was only from a small part of the close, and that during the said expulsion,' &c., from such small part the plaintiffs enjoyed all the other and larger part of the said close, and that the said expulsion was necessary to enable the defendants to enjoy the said small part—as by law they might, Ac. To this rejoinder the plaintiffs demur on the ground that the defendants, in their said rejoinder, do not allege any lawful justification rtf the trespass and expulsion from the part of the close by them referred to, and this view is, 1 think, correct. The trespass complained of in the first count, and reiterated in the second replication, is an expulsion or ouster from the close of the plaintiffs. The defendants' say, in their rejoinder, that they only excelled the plaintiffs from a small part of the close, and this averment involves a confession that they did so expel from such part. But the defendants do not allege any exclusive right-or indeed any right—to such small part; they merely aver' that such expulsion was necessary to enable them to enjoy and occupy, and this is likely ; but the rejoinder fails to set forth any facts tending to show that they had such a right to the small part which would justify the expulsion. The rejoinder, in fact, confesses, but does not avoid the averment in the replication. It might as well be said that a defendant charged with entering a house and expelling the tenant could justify the expuls : on by saying that he only expelled the tenant from one floor or one room, and that such expulsion was necessary to enable the defendant to enioy that floor or room, without showing in what manner he was entitled to such enjoyment. I, therefore, think the second rejoinder bid, and the demurrer thereto must be allowed. 1 now come to the third replicate to the second plea. It alleges before Hamilton Brothers (the former owners of run 324) tyansfered the license thereof to theplaihtiffs an the defendants, they had sold and delivered possession ot part of the said run to the plaintiffs, that is the Crown lands described in the tirat count, and the plaintiffs retained possession of the same until ousted by the defendants ; that Hamilton Brothers kept possession of the residue, and that, thereupon, it was agreed that plaintiffs should have exclusive possession of the part sold to them, and should be entitled to erect a homestead thereon ; and it was further agreed that so soon as the boundaries then undefined should bo determined by the Waste Land Board that then Hamilton Brothers would transfer to the plaintiffs all their right, eto., in the license to occupy the part so sold to the plaintiffs ; that afterwards (and before the boundaries were determined) Hamilton Brothers sold to the defendants the unsold part of the run (that is the part not sold to the plaintiffs) ; that afterwards (and still before the boundaries were determined) Hamilton Brothers transferred to the plaintiffs and the defendants 4h-° license to occupy the said yvpi for the purposes of the agreement between the plaintiffs &nd the defendants next mentioned, namely, that so soon as the boundaries should be determined the plaintiffs and defendants would execute to each other transfers ot the portions sold by Hamilton Brothers to each of them ; and that m the meantime the plaintiffs and defendants should respectively hold the portions so sold to each of them respectively, without let or hindrance from the other j that under these agreements the plaintiffs were in lawful occupation and possession of the said part, etc., and of the buildings budt by them, while ad possessed, at their own expense; that at the time when, &c, the lands which jjow ywt oi mo No. 324 did not, nor do

they now form any part of the lands sold by Hamilton Bros, to the defendants, such lands being within the boundaries of another run. This replication is demurred to, and the ground of dem u rer are—(l) That the agreements set out relate to an interest in land, and are void by the t-tatute of Frauds ; (2) that until the plaintiffs obtain an assignment of the defendants 1 interest in the land, the equity relied on forms no answer to the plea ; (3i that it does not appear that the Waste Land Board has any power to alter the boundaries , (4) that the replication is a departure from the declaration, as it discloses a new cause of action on the alleged contract, as distinguished from tort. Whether this replication is or is not bad in demurrer turn-, I think, upon the question whether the defendants’ interpretation of it, as disclosed in their fouith ground, be corrector not. If, by the replication the’plaintiffs intended to set up a new cause of action upon an alleged contract, as distinguished from the tort relied upon in the count, then undoubtedly there is a manifest departure, and this would let in the first objection, certainly, and possibly the two others. But this seems to me to be a misconception. Specific redress under the alleged contracts, is not sought, damages are not claimed for an alleged breach of the contract to execute mutual transfers. The plea alleges a joint ownership in the plaintiffs and defendants. The replication is an argumentative traverse of this allegation. It asserts the exclusive ownership of the plaintiffs; it sets out a series of facts in order to show how that exclusive ownership and possession arose, and this is admissible under our rules. The contracts are not relied upon, as the fourth ground of demurrer assumes ; if they had been, the first ground of demurrer would have been valid. What is relied upon, and what the replication asserts, is the sole and exclusive ownership of the land trespassed upon. If the admissibility of these contracts be capable of being successfully resisted at the trial (a point which I am not now called upon to decide) the exclusive ownership and possession of the plaintiffs may be otherwise proved, and that exclusive ownership is the gist of the action in one aspect of the case—the actual ouster or expulsion being also relied upon, should joint possession he proved. These being the issues between the parties, I cannot see how they are affected by the want of transfer relied upon in the second ground, or by any question as to the settlement of boundaries or the jurisdiction of the Waste Laud Board, in that behalf, which constitutes the third ground of demurrer, it might, and probably would, have been other wise had these agreements been relied upon as a ground for specific relief, or for damages for breach of the same, but being set out as merely introductory to the averment of exclu-ive possession, I think they are not open to the objections urged. This demurrer is, therefore, over-ruled The pleadings under the second count, for the alleged conversion of certain chattels, are very similar, mutatis mutandis , to those under the first count. The seemd count is for the wrongful conversion of cf rtain building materials and sheep, the property of the plaintiffs. The third plea (except as to the sheep) alleges that the building materials were the joint property of the plaintiffs and the defendants, that the buildings were affixed to the close, and that the user of the same by the defendants was necessarily incidental to the enjoyment of their rights as jo nt owners. I think this plea is a good answer to the count. It has been repeatedly decided that one joint* owner cannot maintain this action for conversion against his co-owner. A sale does not amount to a conversion ; but there is in some of the cases a distinction very similar to that which prevails in trespass—namely, that where th re is a complete destruction of the property, or some disposition of the property equivalent thereto, as by sale in market ovn-t (as in Mayhew v, Hcrreck, 7 t’.B., 229), it will constitute a conversion. But exclusive user, or removal from one place to another, or actual sale by the coowner, do£3 not constitute a conversion. (Higgins v. Thomas, 8 Q. 8., 90S ) This plea, therefore, must stand. Ihe fourth rejoinder (the second to the fifth replication) is also very similar to the second. Mr Smith seems to have treated this as raising the question of joint ownership of tjie chattels alleged to have been converted. But it does not either expressly or by implication affirm joint ownership. It merely alleges that the sole user by the defendants of part of the buildings on a small part of tlie close did not prevent the plaintiffs from enjoying the buildings on the residue of the close. If the admission of sole user had been qualified by the words " as such joint owners as in the third plea mentioned,” the rejoinder would have borne the character which Mr Smith seeks to impart to it, and it might have been capable of being supported, but in so r ar as itconfesses a conversion of part, it does not avoid it by showing any right. If it be meant that the buddings were never severed and removed as alleged, that is already put in issue by the general denial. As it stands 1 think th<? rejoinder bad, and the, demurrer thereto, must he allowed. A a to the demurrer to the fourth replication, all that I have said as to the third replication and the demurrer thereto applies to this, and need not be repeated. But there is an additional averment in this replication which has no place in the third replication, which gives rise to a now ground of demurrer. This averment is that the buildings were erected with the leave and licence of the defendants, and that the defendants have converted the materials, &c. The ground of demurrer is that the license was revocable, and that the entry, etc., was a revocation. A mere naked licence is revocable, but where money has been expended upon buildings, in accordance with the terms of an alleged contract, the licensor cannot lie by until the expense of erecting the buildings has been incurred, and then step in and say “ I revoke the license.” Where that license forms part of a permanent contract, the extent of the license is matter of evidence, it is traversable but not demurrable, and I think that this replication must stand, ami that the demurrer thereto must be overruled. I now come to the questions raised upon the counts upnq the two awards, the second of which, is Upon an amended award made in obedience to, a reference back to the arbitrators by tho Coqrt of Appeals “ rectifying,” as his Honor the Chief Justice expressed it, a similar rule made by Mr Justice AVard, I think it is not open to the objection raised by the notice. r I ho submission is to the three arbitrators, or any two of them, “and there is a general averment that all things had happened, and all times had elapsed to entitle the said arbitrators to make and publish their award.” This, I think, ia enough to make the counts good, As *o the objections touching the I presume that what is meant is, that tho award is thereby rendered bud for want of finality in not awarding to the extent of the submission. But this is certainly no objection as demurrer ; nor do I think it would prevail under a plea that the award is not final, or that tho award is not co-exten-sive with the submission, which last is provable under a plea of mdtid o^xl, I therefore think these counts sustainable. With regard to the seventh replication, I have felt smpo (lison}ty, owing to the very character of the pleas. The replication is substantially, as well as in name, a replication by way of estoppel. 1 cannot look into the reports of M'Kellar v. White, in 1 Appeal Cases 252, to ascertain how far the plaintiffs are likely to be able to Sustain their replication. 1 must, for the purpose of demurrer, assume all tho averments to be true. It is no answer in demurrer to say that the plaintiffs may fail to prove the whole of tho replication, All that 1 have to decide is whether it is an admissible replication good in point of law upon its face, and that 1 think it is. Some of the defences set up by the pleas- seem to be such .as can only be taken advantage of on motion to set the award aside, according to the oases of Whitmore v. Smith, 10 W, Kep. 253 and Thorburn v. Barnes, L Kep. 2, C.B. 384, as amounting to uusqqp'iuct oft the r>ars o$ typ arbitrate

As to the subject matter of seme of the pleas, this has been attempted without success. Hence the replications. But lam not called upon to decide upon these pleas, which are not demurred to. us I might perhaps have been had I considered the replication inadmissahle.

The judgment on the whole record will be for the plaintiffs ; judgment for the defendants on the demurrer to the second and third pleas, with leave to defendants to amend their rejoinder, and rejoin to the replications unsuccessfully demurred to, upon the usual terms.