WARNER V. SAMPSON AND ANOTHER

[LORD DENNING. I have often wondered whether, in view of rule 17, the comprehensive denial was of any use; but it has been sanctioned by long practice.]

It is put in at the end to catch anything which may have slipped through the net on specific denials of specific allegations. Here the pleader caught what he never intended to catch; but this denial is not so strong as that in Kisch v. Hawes Brothers Ltd., 6 which set up a positive claim of possession.

The doctrine that denial of title leads to forfeiture originated in the medieval law and forms of pleading and tenure when a lord might have difficulty in proving his title to land, but there is no case, even in the old books, in which a denial per se without any setting up of an adverse title worked a forfeiture until the decision of Farwell J. in Kisch’s case.6

[ Scarman, for the landlord, referred the court to Dicksey v. Spencer. 7]

The fact that one has to go back to 1587 shows that this branch of the law of landlord and tenant is now archaic, and even in Dicksey v. Spencer 7 there was an element of force. In Wisbech St. Mary Parish Council v. Lilley 8 Lord Evershed M.R. and Romer L.J.9 said that the law on this subject is now archaic; and it was also said that a denial of title must be unequivocal and made with intention. In the present case any intention has to be inferred artificially as a matter of law. [ Doe d. Graves and Downe v. Wells 10 was also referred to.]

4 (1840) 1 Scott N.R. 36, 41.; 5 (1861) 10 C.B.N.S. 788, 796.; 6 (1935) Ch. 102.

7 (1587) Moore K.B. 211; Godbolt 105; Gouldsborough 40; Owen 81; 3 Leon.

169; 4 Leon. 3.; 8 [1956] 1 W.L.R. 121; [1956] 1 All E.R. 301.

The three categories of case in which a forfeiture might result from a denial of title were: (i) in a tenancy from year to year, where a plain denial relieved the landlord of the necessity of serving a notice to quit; (ii) in a tenancy for a term of years, where the denial might be (a) in pais, or (b) by documentary conduct ( Doe d. Ellerbrock v. Flynn, 11 where the term was forfeited by a tortious act); and (iii) denial by matter of record, namely, in pleadings – but there, too, there had to be the setting up of an adverse claim.

(c) The denial must be made with intent to deny the landlord’s title. Miss Gandy had no such intention and the landlord knew that before her defence went in.

[LORD DENNING. It would not matter what she had said beforehand if the defence were an effective denial.]

(d) If the denial is made by an agent on behalf of the tenant, that person must have authority, either actual or ostensible, to deny the title. Here counsel had no actual authority, and though counsel, whose immunity from claims for professional negligence goes back more than 300 years, has wide ostensible authority, it is not without limitations: Doe d. Lewis v. Cawdor 12 and Smith v. Webster. 13 Counsel who exceeds his authority cannot normally do great harm to his client nowadays, because the remedy of amendment is so readily available, but if the client has no remedy against counsel she ought to have one by way of amendment. In Swinfen v. Lord Chelmsford 14 Pollock C.B. said that counsel had no authority to go outside the scope of his instructions, and to do so would be collateral to his authority. Neale v. Gordon Lennox 15 shows that the court will not enforce such a pleading as this after there has been an amendment. [ Strauss v. Francis 16; Swinfen v. Swinfen 17; Shepherd v. Robinson18; Lewis’s v. Lewis 19; Harvey v. Croydon Union Rural Sanitary Authority, 20 and Matthews v. Munster 21 were also referred to.]

9 [1956] 1 W.L.R. 121, 124, 126.; 10 (1839) 10 Ad. and E. 427.; 11 (1834) 1 Cr.M. and R. 137, 138.; 12 (1834) 1 Cr.M. and R. 398, 400.; 13 (1876) 3 Ch.D. 49, 56.; 14 (1860) 5 H. and N. 890, 922.; 15 [1902] A.C. 465; 18 T.L.R. 791.; 16 (1866) L.R. 1 Q.B. 379, 381.; 17 (1858) 2 De G. and J. 381.; 18 [1919] 1 K.B. 474; 35 T.L.R. 220.

(e) If this was a denial of title, it was made under a mistake or by a lapse – it does not matter which, for counsel must be taken to intend the consequences of his pleading; and though it is difficult to claim here that the defendant should be bound by the mistake or lapse of counsel, the court could in equity grant relief from such mistake or mispleader: Barrow v. Isaacs and Son. 22

(f) A denial, to effect a forfeiture, must be made by the lessee and not by a fraction of the lessee. Here there were two executors, and the denial, if made at all, was made by one without the authority of the other. Since the Administration of Estates Act, 1925, executors hold as joint tenants on the trusts in the will, and a step taken by one only will not bind the estate: T. M. Fairclough and Sons Ltd. v. Berliner 23; Gill v. Lewis 24; Leek and Moorlands Building Society v. Clark. 25 Ashworth J. on this point followed the old decision in Simpson v. Gutteridge 26 which it is submitted, was necessarily overruled by section 2 (2) of the Act of 1925, requiring that all the executors who prove a will must now be parties to a conveyance of real estate. In re Schär, decd. 27 – a modern decision in which Vaisey J. held that one of several joint tenants could not make a disclaimer affecting the joint tenancy – is relied on and should be preferred to Simpson v. Gutteridge. 28

If any of the above qualities from (a) to (f) is lacking, there has been no such denial as would effect a forfeiture, so far as Miss Gandy’s unamended defence is concerned, and all the sub-missions apply with greater force vis-à-vis the first defendant Sampson, who has never denied the landlord’s title and should be entitled to relief.

Secondly, if there has been such a denial as would cause a forfeiture, then where defendants are personal representatives the court does and will accept the defence most for the benefit of the estate, irrespective of whether it is the first or the second defence.

19 (1890) 45 Ch.D. 281.; 20 (1883) 26 Ch.D. 249.; 21 (1887) 20 Q.B.D. 141; 4 T.L.R. 102.; 22 [1891] 1 Q.B. 417; 7 T.L.R. 175.; 23 [1931] 1 Ch. 60; 47 T.L.R. 4.;

24 [1956] 2 Q.B. 1; [1956] 2 W.L.R. 962; [1956] 1 All E.R. 844.; 25 [1952] 2 Q.B. 788; [1952] 2 T.L.R. 401; [1952] 2 All E.R. 492.; 26 (1816) 1 Mad. 609.; 27 [1951] 1 Ch. 280; 66 T.L.R. (Pt. 2) 1131; [1950] 2 All E.R. 1069.; 28 1 Mad. 609.;

That principle is laid down in Midgley v. Midgley. 29 [ Elwell v. Quash, 30 Wood v. Richardson 31 and Williams on the Law of Executors and Administrators, 13th ed. (1953), vol. 1, p. 455, were also referred to.]

29 [1893] 3 Ch. 282.; 30 (1716) 1 Strange 20.; 31 (1840) 4 Beav. 174.

Thirdly, Kisch v. Hawes Brothers Ltd., 32 which Ashworth J. followed, should be overruled for the following reasons: (a) the cause of action, if any, arose after the issue of the writ, and therefore the landlord could not rely on it in that action, though he might do so in a separate action:

Eshelby v. Federated European Bank Ltd. 33; but for the defendants to succeed on this technical ground would be a Pyrrhic victory. (b) Kisch’s case34wrongly and unnecessarily extended the archaic doctrine of forfeiture by denial of title, a doctrine which bears no relation to the modern requirements and provisions of the law of landlord and tenant. It should not apply in the limited form of denial of title in a pleading, and, if it does, the court can allow amendment to cure what was done. Kisch’s case34 was considered and disapproved by a majority of the five judges of the Supreme Court in Eire in Wallace v. Daly and Co. Ltd. 35 (not cited to

Ashworth J.) though for differing reasons. (c) The main criticism of Kisch’s case36 is that there, as here, there was lacking the essential element of setting up an adverse title. The modern landlord suffers no damage if his title is denied. The reference to this archaic doctrine in the argument in Barton v. Reed 37 is of no authority, for the point was not decided in that case.

[LORD DENNING. I have always understood that the plea of possession such as

that in Kisch’s case38 merely put the plaintiff to proof. Farwell J. said that as soon as the faulty defence was delivered the landlord became entitled to claim forfeiture. But the question is: When did he do so? The landlord has to elect either to re-enter or to issue a writ claiming possession. Where is there in the present case the act which amounted to that election?]

Ashworth J., following Farwell J. in Kisch’s case,39 held that the right to claim forfeiture arose as soon as the unamended defence was delivered. [ Philipps v. Philipps 40 was also referred to.]

32 [1935] Ch. 102.; 33 [1932] 1 K.B. 254.; 34 [1935] Ch. 102.; 35 [1949] I.R. 352.; 36 [1935] Ch. 102.; 37 [1932] 1 Ch. 362, 367.; 38 [1935] Ch. 102.; 39 Ibid. 107.; 40 (1878) 4 Q.B.D. 127, 136.

Fourthly, the amendment allowed by Farwell J. in Kisch’s case41 and by Pearson J. in the present case had the effect of curing any vice there may have been in the original pleading. Actions in 1958 should be tried on the real issues between the parties. [ Cargill v. Bower 42; section 43 of the Supreme Court of Judicature (Consolidation) Act, 1925, and R. S. C., Ord. 28, r. 1, were also referred to.] No pleading can have so strong an effect as to give rise to a right which did not exist before. In Hollis v. Burton 43 Kay L.J. said that an amendment should be treated as though there had been a withdrawal of a previous admission for all purposes; and in Sneade v. Wotherton Barytes and Lead Mining Co. 44 Collins M.R. said that the writ as amended became the origin of the action. In Wallace v. Daly and Co. Ltd., 45 though counsel agreed not to rely on the amendment, the majority of the court said that amendment would cure the vice. Leave to amend is not given if it takes away a right from the other side.

41 [1935] Ch. 102.; 42 (1876) 4 Ch.D. 78.; 43 [1892] 3 Ch. 226, 241.; 44 [1904] 1 K.B. 295, 297; 20 T.L.R. 183.; 45 [1949] I.R. 352.

[HODSON L.J. It all turns on the question whether this right of forfeiture crystallised when the faulty defence was delivered.]

It should crystallise, if at all, at the date of issue of the writ. One of the artificial results of the decision in Kisch’s case46 is that it does not. The only pleading which the court can consider as crystallising such rights as the landlord may have was his first reply which contained no counterclaim.

Fifthly, if there has been a forfeiture, relief will be sought under section 146 of the Law of Property Act, 1925, but submission on that point is reserved until the court has made its decision on the main point.

G. Scarman Q.C. and Christopher Gibbons for the landlord.

Kisch v. Hawes Brothers Ltd. 47 cannot be distinguished from the present case and decided that the denial of a landlord’s title in a pleading is a ground for forfeiture. It is conceded that there is a distinction between a pleading which denies and one which merely puts the plaintiff to proof, and if this defence did no more than that, or if it indicated – particularly where, as here, the title is a derivative title – that the tenant was in any genuine doubt about the landlord’s title, the present submission would be unsustainable.

46 [1935] Ch. 102.; 47 Ibid.

A tenant can either in pais or by record put the landlord to proof, and a denial of that kind is not such an unequivocal or deliberate claim of title in himself or another as to effect a forfeiture. That is plain from Doe d. Lewis v. Cawdor 48 and Jones v. Mills. 49 But a denial such as the present, particularly as it was unaccompanied by the usual counterclaim for relief, is a procedural act which has an effect on the substantive law of landlord and tenant in that it causes a forfeiture. However inconvenient it may be in 1958, the essence of the ground of forfeiture is the repudiation, renunciation or denial: compare the law relating to chattels in actions for conversion where the mere denial without physical possession of the goods has been held to be conversion: Salmond on the Law of Torts, 11th ed., Chap. 8, section 93.

It is conceded that, if there is ambiguity in the words or acts of the one who denies, it becomes necessary to consider intention: Doe d. Ellerbrock v. Flynn. 50 But intention is irrelevant where the denial is unequivocal. Ashworth J. had no doubt that, though this was the act of counsel, counsel’s mind went with his act, and it is settled law that a man is responsible for the act and intention of his agent.

As to whether the act of counsel was intentional or authorised, it is submitted that in matters affecting the conduct and management of litigation counsel has complete authority which cannot be cut down or limited in any way. It is kept under control by the court’s inherent jurisdiction to refuse its assistance when it is plain that counsel has exceeded his authority: Neale v. Gordon Lennox. 51 But that is not this case; nor have the cases on compromises by counsel any relevance here.

48 1 Cr.M. and R. 398.; 49 10 C.B.N.S. 788.; 50 1 Cr.M. and R. 137.; 51 [1902] A.C. 465

[LORD DENNING. It seems to all of us that counsel had authority to put in

that plea.]

Then the defence of Miss Gandy, delivered on June 15, 1955, properly construed, was an effective claim to keep the landlord out of possession and an implied assertion that the title lay somewhere else than in the plaintiff. In the absence of a counterclaim for relief it was immaterial whether the defence “did not admit” or “denied,” for nothing in her defence indicated any genuine doubt about the plaintiff’s title.

[LORD DENNING. What is the effect of a traverse but a putting to proof?]

A traverse is a term of art in pleading, meaning that the allegation traversed has to be proved. In most forms of action everything can be achieved equally by “not admitting”: see R.S.C., Ord. 19, r. 2. But in a defence to a landlord’s claim for possession, as also in a libel action, a general traverse at the end may have unusual effects. In this case it may cause a forfeiture, and in a libel action it has been held to amount to a plea of justification. [“Traverse” in Stroud’s Judicial Dictionary, 3rd ed., p. 3087, and Stephen and Pinder on Pleading, 6th ed. (1860), p. 382, were also referred to.]

[LORD DENNING referred to “traverse” in Bullen and Leake on Precedents, 3rd

ed., p. 436.]

[HODSON L.J. “Traverse” includes both “denies” and “does not admit.”]

Farwell J. in Kisch’s case52 did not draw any distinction between the words but held that the plea of possession was a denial of title. That denial in a pleading may effect a forfeiture has been recognised in the profession for many years, as is shown by the argument of Mr. Gavin Simonds in Barton v. Reed. 53It is one of the pitfalls against which inexperienced pleaders are always warned.

The principle that a denial by matter of record is ground of forfeiture was stated in Bacon’s Abridgment, 7th ed., vol. 3, pp. 196-197, under “Tenant for Life,” and under “Title, Leases and Terms for Years. When forfeited” (vol. 4, p. 884), where it was said that “to every lease the law tacitly annexeth a condition, that if the lessee do anything that may impair the interest of his lessor, the lease shall be void, and the lessor may re-enter.” The reports of Dicksey v. Spencer 54 support the submission that the landlord’s right crystallises when the act of denial takes place, and matters subsequent do not avail the tenant. [ Saunders v. Freeman 55 was also referred to.] The circumstances in which he to whom the reversion belongs can re-enter are set out in Henry Vavasor’s case,56 where it is also said: “But otherwise where the man loses by discretion of the court on a mispleading.” See also Viner’s Abridgment, 1st ed., vol. 1, p. 37, Item 14, on the phrase “if he pleads it feintly,” and Comyn’s Digest of the Laws of England, 4th ed., vol. 4, on Forfeiture, A.5, on “involuntary mispleding,” and the reference to Rolles’ Abridgment, vol. 1, p. 853, l. 42, indicating that involuntary mispleading did not work a forfeiture. In Sir William Pelham’s case57 “involuntary mispleader” is given the meaning of an error akin to a slip or accident. But those statements do not detract from the principle of denial by matter of record effecting a forfeiture, for which there is a continuous stream of authority from the Year Books to the present day. [ Doe d. Bennett v. Long 58 and Oakley v. Lyster 59 were also referred to.]

52 [1935] Ch. 102.; 53 [1932] 1 Ch. 362, 367.; 54 Moore K.B. 211.; 55 (1562) 2 Dyer 209a.; 56 (1344) Year Book 18 Edw. III, Trinity Term, p. 28, para. B, Instance 33.; 57 (1590) 1 Co.Rep. 14b; 2 Leon. 60

Secondly, if there is ground for forfeiture in a pleading, a landlord may take advantage of it in the action which contains the pleading. Though this landlord may not be able to rely on her original reply as constituting her election either to re-enter or to issue a writ for possession, her reply to the defendants’ amended defence, which contained a counterclaim, was an act equivalent to the issue of a new writ and avoided multiplicity of proceedings.

[HODSON L.J. The court would surely have a discretion as to how it would treat the landlord’s counterclaim.]

If the landlord’s claim is well founded in law, a new writ could be issued today. The determination of this question depends on the question whether the defendants’ amendment was of any use. If it was, it is as fatal to the claim for forfeiture as it is to the counterclaim for possession. [Section 39 of the Supreme Court of Judicature (Consolidation) Act, 1925; R.S.C., Ord. 19, r. 3, and Ord. 23, r. 3, and the notes on Toke v. Andrews 60 and Renton Gibbs and Co. Ltd. v. Neville and Co. 61 were referred to.]

Serjeant v. Nash, Field and Co. 62 shows what in modern law is necessary to effect a forfeiture. There the issue of a writ operated as a final election by the lessor. The rule recognised and the cases cited in Moore v. Ullcoats Mining Co. Ltd. 63support Farwell J.’s decision in Kisch’s case64 that the landlord’s reply was an unequivocal act of election on which he could rely as conduct equivalent to re-entry when an action was pending between the parties.

Thirdly, matters subsequent to the denial of title, such as amendment or even withdrawal of the original plea, cannot cure the forfeiture. Once the ground of forfeiture arises, the landlord alone can elect whether to avail himself of it or to waive it, for the original defence once delivered constituted a breach of the condition annexed by law to the lease. The fundamental question is: What is the ground of forfeiture? Is it that which was on the record when the matter reached trial or when the amended defence was put in? Or is it that which was on the record when the original defence was delivered?

[HODSON L.J. In the ordinary case it is the former. Do you say that in this form of action the landlord has something better than a pleading?]

Yes; for an act of record has had an effect on the substantive law of landlord and tenant.

Fourthly, the pleading of one executor can work a forfeiture. That was decided in Simpson v. Gutteridge, 65 the authority of which has never been questioned. Section 2 of the Administration of Estates Act, 1925, expressly preserved the powers and rights of executors under the old law, save to the extent that the new Act removed or modified them. That which happened in the present case was not a “disclaimer” within the definition of “conveyance” in section 55 of that Act. The view expressed by Ashworth J66 on this point is respectfully adopted. In re Schär, decd., 67 is distinguishable.

Fifthly, Midgley v. Midgley 68 does not apply on the facts of this case and, if it has any bearing, then, in the absence of any plea from the first defendant Sampson, it is submitted that Miss Gandy’s plea was the defence most favourable to the estate, for it effectively succeeded in keeping the landlord out of possession.

Sixthly, submissions on the claim for relief under section 146 of the Law of Property Act, 1925, are reserved pending judgment on the issue of forfeiture.

Hames replied, and referred to Barker v. Windle 69 and Lucas v. Dixon. 70

MAIN JUDGMENT

Cur. adv. vult.

LORD DENNING. The detailed facts of this case are all set out by Ashworth J. in his judgment. They are contained in the Law Reports71 and I need not repeat them now. Suffice for present purposes to say that the statement of claim recited the original lease, its covenants, and the proviso for re-entry. It alleged a derivative title in the plaintiff saying that the reversion was vested in her by “divers mesne assurances and acts in the 65 1 Mad. 609. law”; it then alleged a derivative title in the defendants, saying that the term became vested in Gertrude Annie Sampson, and that the defendants were her legal personal representatives. It went on to allege that the defendants had committed breaches of covenant by non-payment of rent, failure to insure, to paint, and to repair. It alleged a notice to remedy breaches and a failure to remedy. It ended with a claim for possession and mesne profits.

66 [1958] 1 Q.B. 404, 420-421.; 67 [1951] 1 Ch. 280.; 68 [1893] 3 Ch. 282.; 69 (1856) 6 E. and B. 675.; 70 (1889) 22 Q.B.D. 357.; 71 [1958] 1 Q.B. 404; [1958] 2 W.L.R. 212; [1958] 1 All E.R. 44, 314 (No.2).

The defence of the second defendant admitted that she was the executrix of the will of Gertrude Annie Sampson, denied that she had committed the alleged or any breaches of covenant, and then concluded with this general denial, on which the whole case turns: “Save and except for the admission herein contained this defendant denies each and every allegation in the statement of claim as if the same were specifically set out and traversed seriatim.”

The judge has held that by putting in that general denial the defendant denied the plaintiff’s title, and that thereupon the plaintiff was entitled to claim forfeiture of the lease. As soon as the plaintiff elected to exercise her right, as she did in her reply, the forfeiture was complete, and nothing that the defendant could do to avoid that result would avail her anything. It was incurable by amendment. No relief could be given against it. It was final and irrevocable. So the judge has decided. Yet the rent, we were told, has been paid or is ready to be paid. The repairs done, or almost done. All the breaches will be remedied. Everything made good save for this general denial which, if the judge be right, cannot be cured by art or skill. Strike it out, amend it as it now has been amended, but still the effect remains. The rest of this term, with 40 years still to run, valued at over £3,000, is forfeited to the landlord. How must the unfortunate counsel who drafted the defence reproach himself for having brought this on his client! If he had not used the word “denies” but had said “does not admit,”

there would, it is agreed, have been no forfeiture. But this denial brings with it an inexorable fate from which, if this decision stands, there is no escape.

Since so much effect has been given to this general denial, I would say a word about it. It is used in nearly every defence which goes out from the Temple. It comes at the end. The pleader has earlier gone through many of the allegations in the statement of claim and dealt with them. Some he has admitted. Others he has denied. Whenever he knows there is a serious contest he takes the allegation separately and denies it specifically. But when he has no instructions on a particular allegation, he covers it by a general denial of this kind, so that he can, if need be, put the plaintiff to proof of it at the trial. At one time the use of this general denial was said to be embarrassing: see British and Colonial Land Association Ltd. v. Foster and Robins, 2 but since 1893 it has been recognised as convenient and permissible: see Adkins v. North Metropolitan Tramway Co. 3Sometimes the pleader “denies,” sometimes he “does not admit” each and every allegation; but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded “as if it were specifically set out and traversed seriatim.” In short, it is a traverse, no more and no less. Now the effect of a traverse has been known to generations of pleaders. It “casts upon the plaintiff the burden of proving the allegations denied”: see Bullen and Leake on Precedents, (3rd ed., p. 436). So this general denial does no more than put the plaintiff to proof. Mr. Scarman did suggest at one stage that it might indirectly involve a positive averment. For instance, he said that, if pleaded in a libel action, it would involve a denial that the words were false and hence it would carry the implication that they were true and would amount to a plea of justification. But he did not pursue this illustration, and I think it clearly untenable. There are some denials which do involve an affirmative allegation (see MacLulich v. MacLulich 4; but not this general denial. It only puts the plaintiff to proof.

The effect of this general denial, in an action to recover land, is therefore the same as the classic plea: “The defendant is in possession.” This plea of possession was good against everyone except against a plaintiff who could show a better title. It put the plaintiff to proof of his title as much as if the defendant had expressly denied, or had expressly stated that he did not admit, the whole and every one of the allegations contained in the plaintiff’s pleading: see Danford v. McAnulty. 5 In my junior days I often put in this plea of “possession,” and I should have been shocked to find that I had thereby involved my client in a forfeiture. Yet that was the result of such a plea if a decision of Farwell J. in 1935 was right. He held, in Kisch v. Hawes Brothers Ltd., 6 that a plea of “possession” was a cause of forfeiture on the ground that it amounted to a denial of the plaintiff’s title, and that a denial of the plaintiff’s title was a ground on which a lessor was entitled to claim forfeiture of the lease: and that, as soon as the plaintiff delivered a reply claiming the right to re-enter on that ground, there was a forfeiture, irrevocable and incurable by amendment, and enforceable in those very proceedings, although the cause of forfeiture only arose after the date of the writ.

2 (1888) 4 T.L.R. 574.; 3 (1893) 10 T.L.R. 173.; 4 [1920] P. 439.; 5 (1883) 8 App.Cas. 456.; 6 [1935] Ch. 102.;

In the present case the judge has followed Kisch v. Hawes Brothers Ltd., 6 as no doubt he felt he ought to do; but we have been invited to overrule it, and for this purpose we have been taken back to the old books on forfeiture by matter of record.

The history starts in feudal times. When a lord allotted a feud or fee to a tenant there was a condition annexed to it that the tenant should do service faithfully to him by whom the lands were given: for which purpose the tenant took an oath of fealty; and in case of breach of this condition and oath the lands reverted to the lord who granted them. If the tenant did anything tending to impair the title of his lord to the lands it was a breach of his oath of fealty and gave rise to a forfeiture. This is well seen by a reference to Glanville, who was Chief Justice in the reign of Henry II. In his treatise composed about 1187 A.D. he says (Book IX, Ch. 1, p. 68) that, “no one can by law, consistently with the Faith implied in Homage, do anything which tends to deprive his Lord of his Inheritance or to affix a personal stain upon him ... if a tenant should do anything to the disinherison of his Lord, and should be convicted of it, he and his heirs shall for ever lose the fee held of such Lord.”

Among the acts which tended to the disinherison of the lord, the most important for present purposes was a disclaimer by the tenant by matter of record. This was a denial by the tenant in a court of record of his lord’s title. It commonly arose in this way. If a tenant failed to perform the services due to his lord, the lord used to take action to recover them. The usual thing he did was to take the tenant’s cattle by way of distress so as to compel the tenant to perform the services. In order to regain the cattle, the tenant would bring replevin in the Court of Common Pleas (a court of record) and, when the lord avowed for services in arrear, the tenant would enter a disclaimer in these words: “He doth not hold of the said Lord the land aforesaid but the same to hold of the said Lord altogether disavows and disclaims.” This disclaimer was a very powerful weapon in the hands of the tenant, for by it the lord was barred of all possessory remedies for the services. The result was that. although the distress and avowry of the lord were lawful, yet the tenant would regain and retain his cattle and recover damages from the lord. It tended, therefore, greatly to the prejudice of the lord. But the lord could have his revenge, provided always that he could prove his title. By bringing a writ of right on the disclaimer, he could claim forfeiture of the tenant’s interest altogether. This is all explained by Finch in his Treatise on the Common Laws, pp. 268-269. He says that “The Lord shall have a writ of right upon this disclaimer, and if he can prove that the land is holden of him, he shall recover the land itself for ever, because the disclaimer is of record.”

6 [1935] Ch. 102.

I have dealt thus much with disclaimer because it is the only instance I have found in the old law in which a denial on the record of the landlord’s title by itself gave rise to a forfeiture. But the reasons for it are, as Blackstone says, “most apparently feodal” (see Blackstone, Commentaries, 8th ed., vol. 2, p. 275): and when the feudal tenures died out, the law on the subject died too. Never since feudal times has a denial of title by itself given rise to a forfeiture until Kisch v. Hawes Brothers Ltd. 6 in 1935.

There are many other instances in the old books of acts which tend to the disinherison of the lord, but in all of them you will find that the tenant is acting contrary to the faith which he owes to his lord. He is not defending the reversion as he ought to do. He is claiming the fee simple to be in himself or in another, and not in the lord. If he claims it on the record of the court, it is a cause of forfeiture. Thus if a writ of right was brought against a tenant for life and he took it upon himself in his pleadings “to join the mise upon the mere right” (which means that he put it in issue who hath the best or clearest right: see Termes de la Ley, pp. 442-443), that amounted to a claim on the record that he himself was entitled to the fee simple, and on being proved it gave rise to a forfeiture: see Coke upon Littleton, vol. 2, pp. 251b, 252a. Or if the tenant allowed a stranger to recover the land by not taking the trouble to defend the case, or by making default in pleading, or by pleading “feintly,” i.e., covinously in collusion with the stranger, this was a cause of forfeiture.

6 [1935] Ch. 102.

On the contrary, if the tenant had acted in good faith towards his lord and had done nothing to allow the stranger to win but “loses by discretion of the court on a mispleading,” there was no forfeiture. This appears from a case in 1344 on a writ of entry against Henry Vavasor. 7 It is reported in the Year Book of 18 Edward III, No. 33 (which will be found with a translation in the official reprint

published by H.M. Stationery Office, p. 366).

These rules were afterwards extended to include not only tenants for life, but also tenants for years. There are a number of cases which show that if a tenant for years, on the face of the record, claimed the freehold for himself, that was a ground on which the reversioner could forfeit the lease.

The point used to arise in this way: the original lessor sold his reversion to a purchaser and assigned the property to him. The purchaser then called upon the tenant to attorn to him and to pay rent. Instead of doing so, the tenant resisted the demand and claimed for one reason or other that he was himself entitled to the freehold. If that issue was tried out and decided against the tenant, the reversioner was entitled to claim forfeiture of the lease: but in order to do so he had to bring a fresh action to recover possession: see Plesington’s case8 and Saunders v. Freeman. 9 In 1587 there was an exceptional case of this kind which deserves special mention.

It is reported as Dicksey [or Dicksee or Dixe ] v. Spencer 10 in some places and as Barkhouse’s case10 in another. Barkhouse let premises to Spencer for a term of years. Barkhouse afterwards sold the reversion to Dicksey. Dicksey sued Spencer for rent. Spencer pleaded that he had bought the reversion from Barkhouse before Dicksey bought it. Dicksey did not wait for the issue to be tried out but re-entered at once on the ground that by this plea the tenant Spencer had forfeited the lease. Was this re-entry lawful? The question was much debated in the various courts. It first came up in the Court of Hustings at the Guildhall, where it was referred for the opinion of the Court of Common Pleas [sub nom. Wolstan Dixe’s case].10When it came before the Common Pleas, two judges at first held that there was no forfeiture,11 but three judges later held that there was a forfeiture.12 When it got back to the Hustings the court there refused to abide by the opinion of the three judges and held that there was no forfeiture. Dicksey thereupon brought a writ of error before the special commission of three judges which heard appeals from the Hustings. These seem to have been of opinion that, there was a forfeiture, but it is reported that “after many arguments, the said justices moved the parties to a friendly course, to compound the matter.”13 The issue was thus left undetermined. The case can hardly be considered as of much authority. It only shows that the judges of that time got into difficulties just as we do.

7 (1344) Year Book 18 Edw. III, Trinity Term, p. 28, para. B, Instance 33.; 8 (1393) Fitzherbert’s Abridgement Title Quid Juris Clamat, 20.; 9 (1562) 1 Plowden 209; 2 Dyer 209a.; 10 (1587) Moore K.B. 211-212.; 11 (1587) Godbolt 105.;

12 (1587) Gouldsborough 40; Owen 81; 4 Leon. 3.

The latest case on this medieval law was in 1590, Sir William Pelham’s case,14 which was argued by Sir Edward Coke himself when he was counsel. He did a great deal of research and cited many cases from the Year Books. He made the results of all this learning available to the profession at large when he came to write his commentary upon Littleton. He there says (vol. 2, p. 251b) that forfeiture by matter of record may be made by a particular tenant by “three manner of ways. First by alienation. Secondly, by claiming a greater estate than he ought. Thirdly, by affirming the reversion or remainder to be in a stranger.” He gives instances of these three ways. Throughout his discourse it is plain that a disclaimer by a tenant in a court of record does not give rise to a forfeiture unless it amounts, expressly or impliedly, to an assertion or affirmance by the tenant of title in himself or in a stranger. His analysis of the law on the subject has been accepted by all who have followed him, notably Sir John Comyns C.B. in his Digest (4th ed., vol. 4), Forfeiture (A.2, A.4, A.5), and Sir William Blackstone in his Commentaries (8th ed., vol. 2, pp. 275-276). I am sure that Matthew Bacon in his Abridgment meant to say nothing to the contrary.

So ends the medieval law as to forfeiture by matter of record. Thenceforward it seems to have fallen into disuse for over 300 years. There is no case, so far as I know, in which it has been applied between Pelham’s case14 in 1590 and Kisch v. Hawes Brothers Ltd. 15 in 1935. There is mention of it once or twice as, for instance, in Doe d. Graves and Downe v. Wells, 16 where it was held that a disclaimer (not of record) does not work a forfeiture; but otherwise it has been out of sight and out of mind. It is a pity that it was not left in oblivion, for it is quite inappropriate at the present day. All the circumstances which gave rise to this medieval law have now disappeared; and with their passing the old law has gone too. A tenant for years does not owe homage to his landlord. He does not take an oath of fealty. He is under no duty to defend the interest of the reversioner. His rights and duties are defined by the lease; and there is no room for any implied condition that he is not to dispute the landlord’s title, either on the record or off it. The landlord is sufficiently protected by the rule that the tenant is estopped from denying his landlord’s title. This rule ensures that no denial of title is of any avail to the tenant except in those cases where he may properly put the landlord to proof. To go further and say that the denial involves a forfeiture would be a punishment on the tenant which cannot be justified.

13 (1587) 3 Leon. 169, 170.; 14 (1590) 1 Co.Rep. 14b; 2 Leon. 60.; 15 [1935] Ch. 102.; 16 (1839) 10 Ad. and E. 427.

This form of pleading does the landlord no harm, and the tenant should not suffer by reason of it. When these old feudal rules are brought up to exact a penalty for an innocent plea of this kind, I call to mind the words of Lord Atkin in United Australia Ltd. v. Barclays Bank Ltd. 17: “When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the judge is to pass through them undeterred.”

That spiritual advice, if I may so describe it, was given on a like occasion when it was sought to deprive a man of his rights because of his form of pleading. The House of Lords did not permit him to be trapped there by the old rules. Nor should we here. I have no hesitation in holding that a denial in a pleading of the landlord’s title does not today give rise to a forfeiture. In so far as Kisch v. Hawes Brothers Ltd. 18 held that it did, it was wrong and should be overruled.

I would only add that, if the medieval law were to be revived, it would not, on a proper understanding of it, enable the landlord to claim forfeiture of the lease. This general denial only puts the landlord to proof. It does not affirm the fee to be in the defendant or in a stranger. If it were by some mischance to be so construed, it would be a “mispleader” which would not cause a forfeiture. Moreover, a defendant in the old days was not bound by the words of his professional pleader unless he had expressly or tacitly adopted them: see Pollock and Maitland (2nd ed., vol. 1, p. 212); and this would apply especially in a case where the pleading might give rise to a forfeiture: see Finch, Treatise on the Common Laws (p. 266). In this case again there was no re-entry or its equivalent; and in any case the plea has been amended. I do not stay, however, to consider these matters, nor any of the law relating to forfeiture by acts in pais, nor those cases where a tenant from year to year by his conduct has waived the necessity for a notice to quit. Suffice it to say that in my opinion a denial in a pleading by a tenant of his landlord’s title does not today give rise to forfeiture.

17 [1941] A.C. 1, 29; 57 T.L.R. 13; [1940] 4 All E.R. 20.; 18 [1935] Ch. 102.

I would therefore allow this appeal and remit the case for hearing on the other issues.

HODSON L.J.

This was an action for possession brought by a landlord against the two personal representatives of the lessee on the grounds of non-payment of rent and breaches of covenants contained in the lease. Judgment was entered against the first defendant in default of appearance. The second defendant entered a defence (which was subsequently amended) containing this paragraph: “Save and except for the admission herein contained this defendant denies each and every allegation in the statement of claim as if the same were specifically set out and traversed seriatim.” The defence as originally drawn contained no counterclaim for relief against forfeiture. By her reply the landlord claimed that by her defence the second defendant had disclaimed and disputed the landlord’s title as landlord and that she (the landlord) was entitled and thereby exercised her right to forfeit the term. The judge, applying the decision of Farwell J. in Kisch v. Hawes Brothers

Ltd., 18 gave judgment for the plaintiff, not on the grounds claimed in the writ, but on the ground of forfeiture as claimed in the reply.

This case cannot be distinguished in any way favourable to the defendants from Kisch v. Hawes Brothers Ltd. 18 There the landlord followed the course which has been taken here, namely, he took the point in reply to the defence that by their defence the defendants had denied the plaintiff’s title and that a denial of the plaintiff’s title by a tenant is a ground upon which a lessor is entitled to claim forfeiture of the lease.

It should be noted that in Kisch’s case18 the effect of the defence was derived from consideration of Order 21, rule 21, which by its then terms introduced into the pleading a statement that the defendant denies or does not admit the allegations of the statement of claim. In argument, an earlier case, Barton v. Reed, 19 was referred to, in which the point was taken, but not decided, that a defendant forfeited his lease by pleading a denial of his landlord’s title.

18 [1935] Ch. 102.; 19 [1932] 1 Ch. 362.; 20 [1935] Ch. 102.

Mr. Scarman, for the plaintiff, has not sought to uphold Kisch’s case20 on the basis that failure to admit title creates a forfeiture, for he concedes that at least when there is a derivative title, as there was in that case as well as in this, a defendant is entitled to put to proof or not to admit title without imperilling his lease: see Jones v. Mills 21and Doe d. Lewis v. Cawdor. 22 He, however, has contended that in this case the defendant has gone beyond non-admission and the mere putting to proof by setting up a denial in clear and unambiguous terms which entitles the landlord to claim a forfeiture of the lease.

The legal principle involved goes back to feudal times and is stated as follows in Bacon’s Abridgement (7th ed., vol. 3, p. 196): “Another way of forfeiture in a court of record is, by claiming a greater estate than he had by the feudal donation, or by affirming the reversion to be in any other person than his lord. This seems to be grounded on a rule in the old feudal law, that if a vassal denied that he held the feud of his lord, and it was proved against him, such denial was a forfeiture.” Examples are to be found in the books of denial by record involving the setting up of an adverse title: compare Dicksey and Spencer’s case,23 where the lessee for years, in an action of debt brought against him for the rent reserved, claimed fee

by bargain and sale of his lessor, the which bargain and sale the plaintiff traversed. “All the three judges were clearly of opinion that, notwithstanding the traverse, it is a forfeiture; for the very claim is a forfeiture which cannot be saved by matter subsequent.”23 The same case appears to be reported under the name Barkhouse, 24 where it is recorded:

“Debt against lessee for years for rent: the defendant claimed fee in the land whereas he had no fee: it was resolved that it was a forfeiture.” The principle is later stated in clear language in Doe d. Williams and Jeffery v. Cooper. 25 Tindal C.J. said26: “To constitute a disclaimer, there must be a renunciation by the party of his character of tenant, either by setting up the title of a rival claimant, or by asserting a claim of ownership in himself.” Coltman J. in the same case said27: “A disclaimer I understand to be the setting up of a title that is inconsistent with the title of the landlord”; and he ended his judgment by saying: “I think the jury were well warranted in concluding that the defendant had no intention to deny the right of the lessors of the plaintiff, but merely desired to secure himself from liability to be called upon again by Kent.” The other members of the court gave judgment to the same effect.

21 (1861) 10 C.B.N.S. 788.; 22 (1834) 1 Cr.M and R. 398.; 23 3 Leon. 169, 170.; 24 4 Leon. 3.; 25 (1840) 1 Scott N.R. 36.; 26 Ibid. 41.; 27 Ibid. 43.

On the construction of the defence, I agree with the judge that the words of

paragraph 3, which I have quoted above, are clear and specific. There is here a denial which, if today there is any validity in the distinction between denial and putting to proof, goes beyond the non-admission to be found in Kisch’s case.28 The question still remains whether this denial involves the affirmative setting up of an adverse title to be found in the authorities. Mr. Scarman contends that this must be so, for to deny is equivalent to the assertion of the opposite and must of necessity involve the tenant in asserting a title in himself or a stranger. While conceding that there may be cases where, as a matter of construction, a denial may in a pleading be pregnant with an affirmative allegation (compare MacLulich v.

MacLulich 29 I do not think that this is such a case. Bearing in mind that the courts lean against forfeiture, I think it is wrong to read into the general denial contained in the paragraph of the defence which I have read an affirmative allegation of the kind supposed by the judges who formed the court in Doe d. Williams and Jeffery v. Cooper. 30

In my opinion at the present time, although the practice of pleaders may vary, there is no effective line to be drawn between non-admission, on the one hand, and denial on the other. Certainly a general traverse of the kind used in the defence here should not be taken against the defendant as going beyond a putting to proof and ought not to be taken to involve an affirmative contradictory allegation that the title in the land was in himself or in a stranger. Indeed, on the form of pleading it would not be legitimate for him to give evidence to that effect.

This conclusion is enough to dispose of the appeal in favour of the defendant, for, if the pleader did not destroy his client’s term by his denial, there is no forfeiture. I should add that, as the judge pointed out, the pleader in question was not the counsel now engaged in the case on behalf of the defendant.

If I am wrong in saying that the defence created no forfeiture, the question remains whether the landlord has effectively elected to claim the forfeiture. I have said that the plaintiff followed the line taken in Kisch’s case31 by taking the point in his reply that there was a forfeiture and electing by that reply to accept the forfeiture so created.

28 [1935] Ch. 102.; 29 [1920] P. 439.; 30 1 Scott N.R. 36.

Again Mr. Scarman does not seek to support Kisch’s case31in this respect, for he recognises that to make his election the landlord must either re-enter or issue a writ of possession, or take some equivalent step in order to make his election, and he does not contend that the reply in its original form would have any greater effect than a notice of intention to re-enter, which would be insufficient. The position is fully stated by Warrington J. in Moore v. Ullcoats Mining Co. Ltd. 32 He said33: “I am of opinion upon the authorities – and I refer particularly to Jones v. Carter 34 and to a dictum of Bayley J. in Fenn v. Smart 35 – that where the condition in the lease is that the landlord may re-enter he must actually re-enter, or he must do that which is in law equivalent to re-entry, namely, commence an action for the purpose of obtaining possession. Parke B. in Jones v. Carter 36 puts that quite plainly. In the particular case to which he was referring the proviso for re-entry was in a different form to that in the present case – a form which one sometimes finds, namely, that upon breach the lease shall be determined. What he says is this: ‘An entry, or ejectment, in which an entry is admitted’ – that is, having reference to the old form of procedure – ‘would be necessary in the case of a freehold lease, or of a chattel interest, where the terms of the lease provided that it should be avoided by re-entry. Whether any other act unequivocally indicating the intention of the lessor would be sufficient to determine this lease’ – that is, the lease in the form of one with which he was dealing – ‘which is made void at the option of the lessor, we need not determine, because an ejectment was brought, and proceeded with to the consent-rule, by which the defendant admitted an entry, and the entry would certainly be an exercise of the option.’ In Fenn v. Smart 37 Bayley J. – although it is only a dictum in the course of the argument, but it shows the view he took – said: ‘Must not the necessity of an entry depend upon the wording of the condition?

31 [1935] Ch. 102.; 32 [1908] 1 Ch. 575; 24 T.L.R. 54.; 33 [1908] 1 Ch. 575, 587.; 34 (1846) 15 M. and W. 718, 725.; 35 (1810) 12 East 444, 448.; 36 15 M. and W. 718, 725.; 37 12 East 444, 448.

If the words be, that upon the doing of such an act, the reversioner may enter, there must be an entry to avoid the estate; but if the estate be granted upon condition that if the grantee do such an act the estate shall thereupon immediately cease and determine, there no entry is necessary.’ He there draws a distinction between the two classes of cases. In my opinion the present case falls within the first class, and I do not see how it is possible, on any construction of this proviso for re-entry, to say that the lessors have re-entered, when all that they have done is to give a notice of their intention to re-enter, founded on a statement that the lease had determined, which had not in fact happened, or a demand for possession founded on that notice.” The plaintiff not having re-entered or issued a writ of possession founded on the forfeiture relied on was not in a position to obtain judgment for possession in that action.

Mr. Scarman has argued, however, that in this case the plaintiff has, although she has not issued a writ of possession, done the equivalent in her reply to the amended defence which, since it contained a counterclaim, entitled her by way of counterclaim to the counterclaim to raise the question to save multiplicity of actions. I am not persuaded that as a matter of procedure this step is effective; but the point is of little more than academic interest since, if Mr. Scarman is right, the land-lord can still claim the forfeiture by issuing a writ of possession if the defendant has by her plea given rise to a forfeiture. There is, however, I think in this case a fatal objection to the plaintiff’s claim since, as in Kisch’s case,38 the defence was amended before trial, so that the denial of title was struck out and the action came to trial without it. Moreover, the defence was amended before the reply claiming forfeiture, on which the plaintiff now relies, came into existence. I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried. Here the defendant has obtained leave to amend, and there has been no appeal against that order; and, whatever may have taken place at the hearing of the application to amend, the court must, I conceive, regard the pleadings as they stand, the purpose of amendment being to determine the real question in controversy between the parties: see Sneade v. Wotherton Barytes and Lead Mining Co., 39 where Lord Collins M.R. said40: “It appears to me that the writ as amended becomes for this purpose the original commencement of the action.”

38 [1935] Ch. 102.; 39 [1904] 1 K.B. 295; 20 T.L.R. 183.; 40 [1904] 1 K.B. 295, 297.

A somewhat similar situation arose in Wallace v. Daly and Co. Ltd., 41 a case decided by the Supreme Court of Ireland, to which we were referred. Two members of the court, who formed part of a majority in a court of five, were of this opinion, although counsel had by agreement abstained from taking the point that the forfeiture had been cured by amendment. To this Mr. Scarman replies that, although the position as to amendment is, generally speaking, as I have stated it, yet here the pleading as originally drawn had an irrevocable effect which could not be cured by amendment, since it was a breach of the condition under which the defendant held his lease. He relied on the position as stated in Bacon’s Abridgment (7th ed., vol. 4, at p. 884): “Here it is to be observed, that any act of the lessee, by which he disaffirms or impugns the title of his lessor, occasions a forfeiture of the lease. For to every lease the law tacitly annexeth a condition, that if the lessee do anything that may impair the interest of his lessor, the lease shall be void, and the lessor may re-enter. Indeed, every such act necessarily determines the relation of landlord and tenant; since to claim under another and at the same time to contravert his title, to hold under a lease, and at the same time to destroy the interest out of which the lease ariseth, would be the most palpable inconsistency.” It is said that, the condition having been broken, this cannot be cured by amendment, even though the breach of condition is contained in a pleading which normally is capable of amendment. I cannot accept that this pleading should be regarded as any more immutable than any other pleading, and, accordingly, if it were necessary, would hold that the appeal should succeed on the ground that before the landlord had re-entered or taken effective proceedings for re-entry the defendant by amending his defence had removed from it the denial of title which it had previously contained.

41 [1949] I.R. 352.

The position as to Kisch v. Hawes Brothers Ltd. 42 seems to be as follows: The decision itself cannot be supported since (1) there was no denial of the landlord’s title; (2) there was no election by the landlord to take advantage of the forfeiture in the manner required by law; (3) judgment was delivered against the tenant although leave had been given to amend the pleading so as to remove that part which was said to have caused the forfeiture. The landlord cannot succeed independently of Kisch v. Hawes Brothers Ltd., 42 since (1) the mere denial of title in the defence is insufficient to cause a forfeiture; (2) by her amended counterclaim in the action the landlord has not effectively taken advantage of the forfeiture; (3) the defence was amended before the judgment was given so as to remove in this case also the part of the pleading which was said to have caused the forfeiture.

I would allow the appeal and remit the case for hearing on the other issues raised in the action.

42 [1935] Ch. 102.; 43 [1956] 1 W.L.R. 121; [1956] 1 All E.R. 301.; 44 [1956] 1 W.L.R. 121, 124.; 45 (1834) 1 Cr.M. and R. 137.; 46 [1956] 1 W.L.R. 121, 124.; 47 1 Cr.M. and R. 137.

ORMEROD L.J. The fundamental question in this appeal is whether the landlord can regard the general traverse contained in the defence of Miss Gandy as a disclaimer of her title so as to be entitled to re-enter the premises.

Mr. Scarman, on behalf of the landlord, agreed that the insertion of the paragraph in question was a lapse on the part of counsel. Nevertheless, the landlord has sought to take advantage of this lapse, which, of course, she is entitled to do, whatever be the merits of the case, if there has been such a disclaimer of the landlord’s title as to entitle her to claim forfeiture of the lease. As has been pointed out in the judgments which have already been delivered, the rule that the setting up of a title adverse to that of the lessor may involve the lessee in the forfeiture of his lease has its origin in the old feudal law. The question has been considered recently by this court in Wisbech St. Mary Parish Council v. Lilley, 43 when Lord Evershed M.R.44 cited a passage from the judgment of Lord Lyndhurst C.B. in Doe d. Ellerbrock v. Flynn 45 as follows: “I think that the jury, upon the facts proved at the trial, came to a right conclusion. If the tenant sets up a title hostile to that of his landlord, it is a forfeiture of his term: and it is the same if he assists another person to set up such a claim. Whether he does the act himself, or only colludes with another to do it, it is equally a forfeiture.” Lord Evershed M.R. then went on to say46: “Of course, the conception of the relation of landlord and tenant has undergone many changes since that case was decided in 1834. The rule asserted was founded upon the feudal law, as counsel in the case pointed out. Still, if the facts were strictly brought within the scope of the decision in Doe d. Ellerbrock v. Flynn 47 I do not doubt that even today the court would follow it.” Romer L.J. said48: “I accept Mr. Bridges’ submission that even now, if a tenant does in fact deliberately assert a title in himself adverse to his landlord, or if he lets a stranger into possession with the intention of enabling him to set up a title adverse to the landlord, then that amounts to a repudiation of the landlord’s title.”

We were referred to numerous authorities, many of them very old, but it seemed to me that Doe d. Williams and Jeffery v. Cooper 49 stated the position clearly, when Tindal C.J. said50:”To constitute a disclaimer, there must be a renunciation by the party of his character of tenant, either by setting up the title of a rival claimant, or by asserting a claim of ownership in himself.” Did the defendants, by reason of the general traverse contained in the defence of one of them, renounce their character as tenant by setting up the title of a rival claimant, or asserting a claim of ownership in themselves or one of them? The statement of claim set out the landlord’s title to the reversion. The title was a derivative one. This averment of title was therefore one of the matters which was dealt with in the general traverse, since there was no other mention of it in the defence.

It was argued on behalf of the defendants that the effect of the traverse was to do no more than to put the landlord to proof of her title. For the landlord it was argued that it went much further than that. If the words in the paragraph, instead of being a denial, had read: “This defendant does not admit,” and so on, then, says the landlord, there would have been no cause for complaint, but in fact there was a denial of the landlord’s title, and that amounts to a disclaimer. I am bound to say that for my part I cannot accept this contention. The methods of pleaders vary, but the use of a general traverse in one form or another is very common indeed. Some pleaders, if they wish to go no further than to put the plaintiff to the proof of the matters averred in the statement of claim, will use the form “The defendants do not admit.” Others will say: “The defendants deny.” Having regard to the modern practice of pleaders, I have always regarded the two forms as having a similar effect, and, indeed, it is difficult to see what other effect in the ordinary case a denial could have than putting the plaintiff to proof, unless the defence also contained some positive averments. If this be the effect of a general traverse such as the one under consideration here – and for my part I think it is – then the pleading cannot amount to a renunciation by the defendants of their character as tenant.

48 [1956] 1 W.L.R. 121, 126.; 49 1 Scott N.R. 36.; 50 Ibid. 41.

The judge [Ashworth J.] clearly considered that he should follow the decision of Farwell J. in Kisch v. Hawes Brothers Ltd., 51 and he said52: “In my judgment, the denial of the lessor’s title contained in paragraph 3 is in clearer and more direct form than the denial held in Kisch v. Hawes Brothers Ltd. 53 to be involved in the plea that the defendants were in possession.” It was pleaded in the defence in that case, where the defendants were being sued for possession of some premises in Notting Hill Gate, that the defendants were in possession of the premises. By Order 21, r. 21, in its then form, it was provided as follows: “No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends upon an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession, and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff’s statement of claim. He may nevertheless rely upon any ground of defence which he can prove except as hereinbefore mentioned.” The plaintiff submitted that she was entitled to re-enter on the ground that the said plea amounted to a denial of the plaintiff’s title, and that a denial of the plaintiff’s title by a tenant was a ground for forfeiture of the lease. Farwell J. accepted this contention and held that the plaintiff was entitled to possession of the property. It follows from

what I have said above that, in my view, this decision cannot be regarded as good law. The plea that the defendant was in possession of the premises did nothing more than put the plaintiff to proof of her title. It made no attempt to set up an adverse title either in the defendant himself or in anyone else. It would, indeed, cause great hardship to lessees if a plea such as the one we are considering in this case were to render a lease liable to forfeiture. Such a plea cannot do the landlord any harm, nor can it put him in any worse position than he was in before. He is simply put to the proof of his title.

51 [1935] Ch. 102.; 52 [1958] 1 Q.B. 404, 416.; 53 [1935] Ch. 102.

But even if the true construction of the paragraph of the defence in question should be that it does amount to a renunciation by the defendants of their character as tenants, the landlord would still, in my judgment, not be entitled to succeed. The statement of claim was delivered with the writ which was issued on April 27, 1955. The first defendant, Sampson, allowed judgment to go by default, but the defence of the second defendant, Miss Gandy, was delivered on June 15, 1955. The landlord delivered her reply on June 29, 1955, paragraph 3 of which was as follows: “The plaintiff hereby exercises her said right to forfeit the said term, and claims to be thereby entitled to re-enter upon the said premises.” Nothing was done at that time to complete the re-entry, and Mr. Scarman agreed that the paragraph in the reply without the issue of a writ would be insufficient for the purpose. The judgment obtained against Sampson was ultimately set aside, and on February 14, 1956, an amended defence was delivered on behalf of Miss Gandy, admitting the lease and the landlord’s title, and counterclaiming for relief against forfeiture; and on February 27, 1956, the landlord delivered a reply claiming possession of the premises on the ground that by reason of the denial of the title in the original defence the term had become forfeited. Mr. Scarman argued that the landlord acquired the right to forfeit when the defence was delivered in its original form, and no amount of amendment could deprive her of that right. This is a proposition that I find some difficulty in following. The defence in question is a pleading which is capable of amendment like any other pleading. Once it is amended, it takes its place on the record as a part of the pleadings setting out the issues upon which the action will be tried. When the amended defence was delivered, nothing had been done by the landlord to claim possession of the premises. Had a writ claiming possession been issued before the amendment the position might have been different. This was not done, and when a claim was made the position on the record was that the landlord’s title was admitted. I agree that the appeal should be allowed.

Appeal allowed.

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