No. 3. Brown v. Metropolitan, etc. Life Assurance Society, 28 L. J. Q. B. 236.

Supposing such clause could be construed as a mere personal license to V. and others to seize chattels, semble, that as such it could not be transferred by them; neither could they act under it at a different time and for a longer period than they would have had the right of distress as landlords, and the defendants could not justify the seizure as their servants.

The declaration in this action contained two counts; the first, for breaking and entering the plaintiff's premises and seizing his goods thereon; and the second, for an illegal and excessive distress.

The pleas were, first, not guilty; secondly, that the premises were not the plaintiff's; thirdly, that the goods were not the plaintiff's; fourthly, that the defendants did what was complained of by the plaintiff's leave.

Issue was joined on all these pleas.

The cause was tried, before WILLES, J., at the last Spring Assizes at York, when it appeared that the plaintiff, who was the lessee of the premises in question, had mortgaged his interest therein, together with his stock in trade, to Messrs. Vickers and others, by a deed of the 23rd of September, 1856. On the 18th of February, 1857, he mortgaged his equity of redemption to the defendants. On the 27th of October, 1858, the defendants paid off Vickers and others, and took an assignment from them of their mortgage, their debts and arrears of interest then due, with all powers and rights under the deed, and a power of attorney to ask for, demand, and recover in the usual form.

On the 20th of November following the defendants seized goods (the trespasses complained of) by way of rent in arrear, for arrears of interest due to the first mortgagees, none of it having accrued since the assignment to them. On these facts the learned Judge ruled that, under the deed of the 23rd of September, 1856 (the first mortgage), there was no tenancy authorizing a distress as for rent on the 20th of November, 1858; that the assignment from Vickers and others of that mortgage to the defendants did not per se give power to make such distress as for rent; and that the transfer did not per se give defendants power to seize the goods so as to entitle them to a verdict under the plea of leave and license. The verdict was entered for the plaintiff, with £270 damages. Quain (April 19) moved for a rule, calling on the plaintiff to show cause why this verdict should not be set aside, and a new trial had, on the ground of misdirection.

No. 3. Brown v. Metropolitan, etc. Life Assurance Society, 28 L. J. Q. B. 236, 237.

The arguments and cases cited in support of the motion fully appear in the following judgment.

[* 237]

Cur. adv. vult.

* Lord CAMPBELL, C. J., now delivered the judgment of the Court (Lord CAMPBELL, C. J., ERLE, J., CROMPTON, J., and HILL, J.). In this case the plaintiff had mortgaged certain leasehold premises to one Vickers and others, to secure £2500 and interest, payable on the 23rd of March and the 23rd of September in every year. The deed contained a clause by which, ❝ to the intent that the said Vickers and others, their executors and assigns, may have for the recovery of the interest accruing on the principal money secured the same powers of entry and distress as are by law given to landlords for the recovery of rent in arrear, the said Brown doth hereby attorn and become tenant from year to year to the said Vickers and others, their executors and assigns, of the said premises, at the yearly rent of £125, to be paid on the 23rd of March and the 23rd of September." Vickers and others assigned to the defendants the mortgage and premises, and the mortgage debt and certain arrears of interest then due, with all powers of recovering the same, and with a power of attorney to ask for, demand, and recover in the usual form. At the trial, before WILLES, J., at York, the defendants, in order to justify the seizure of goods taken by them after the assignment for arrears due before the assignment, relied upon the provisions contained in the mortgage deed and the deed of assignment. The learned Judge held that they were not justified in this seizure. Mr. Quain applied for a rule for a new trial on the ground of misdirection; and admitting, for reasons not necessary to be stated, that he could not defend the seizure on the ground of any right to distrain, contended that the power was not a power of distress, but was a mere personal license to Vickers, and that under such license the defendants, acting on the deeds, could justify as the servants of Vickers. We are of opinion that the decision of the learned Judge was correct, and that there ought not to be any rule. We do not at all assent to the proposition that there was no tenancy, or that the power of distress was inoperative. The cases of Chapman v. Beecham, 3 Q. B. 723, 12 L. J. Q. B. 32, Doe d. Snell v. Tom, 4 Q. B. 616, 12 L. J. Q. B. 264, and Walker v. Giles, 6 C. B. 662, 18 L. J. C. P. 323, were referred to as showing that the clause in

Brown v. Metropolitan, etc. Life Assurance Society, 28 L. J. Q. B. 237, 238.

the mortgage deed must be construed as a license, and not as a power of distress, and that no tenancy was created. We do not at all agree to this proposition. In Chapman v. Beecham there was no demise or relation of landlord and tenant; but the mortgage contained a mere license to take the goods, as landlords do, for arrears of rent. The reference to the power of distress by landlords only showed how the goods were to be taken and dealt with. In Doe v. Tom, Lord DENMAN expressly says, however the clause of attornment operated, a right of entry was expressly given by the deed; and the Court most properly held the ejectment maintainable on that distinct right of entry, whether there was a tenancy or not. After the more recent case of Pinhorn v. Sonster, 8 Ex. 763, 22 L. J. Ex. 266, with which we entirely concur, we think that the case of Walker v. Giles, can only be supported, if at all, on the grounds pointed out by Lord WENSLEYDALE in Pinhorn v. Sonster. The Court of Common Pleas, as observed by Lord WENSLEYDALE, thought the clause creating a tenancy and power of distress inconsistent with the peculiar provisions of the deed as to the contributions. In page 773, Lord WENSLEYDALE states, " as there is no inconsistency in this clause, we need not strike it out, as the Court of Common Pleas thought themselves compelled to do in Walker v. Giles;" and Pinhorn v. Sonster is an express authority that such a deed as the present operates as a creation of a tenancy, at a rent for which there may be a distress. Vickers, having conveyed away his estate before the seizure, therefore could not have distrained either at common law or under the statute of Anne. Even supposing that the present clause should be construed to give a mere license, and not a power to distrain, we think it impossible to say that Vickers could act under such license at a different time, and for a longer period, than he would have had the right of distress as landlord. There is not, as in Chapman v. Beecham, an express power to seize [* 238] and sell in the manner landlords do; but there is the mere creation of a tenancy, for the purpose of giving such rights of distress as would arise under such tenancy, and it would be directly contravening the intention of the parties to hold that this could be converted into a license to seize and sell, when all right as a landlord would have been at an end. The party may say, "I made myself tenant that you might have a right to seize and distrain as landlord, that is, while I am tenant and you are landlord; but I

No. 3. Brown v. Metropolitan, etc. Life Assurance Society. —Notes.

never intended to give you powers greater, or for a longer period, than a landlord would have." But even if this were a mere license to Vickers, we think the learned Judge right in saying, that as a mere license to seize chattels it could not be transferred. Mr. Quain hardly controverted this ruling; but he urged that if the pleadings were amended, which it was stated might be done if necessary, the defendants would justify as the servants of Vickers. The learned Judge thought that the deed did not enable them to do so; and if it were necessary to decide this point, we should probably be disposed to concur in his view of this part of the case. The license to seize goods is clearly a personal authority to be exercised by the licensee; and if an irrevocable power be given by him to the assignee of the debt, in such a case as the present it would be left to the assignee to judge in each particular case, whether the seizure should be made or not; and the personal authority of the original licensee to do the act, or command it to be done, would be gone. This seems to us, in effect, to amount to an assignment or transfer of a personal license. It is difficult to see how the particular trespass is the act of the original licensee, or is done for him, or as his servant, so as to make him the person committing the trespass. However this may be, we are clearly of opinion that Vickers had no right to seize by himself or his servants in the present case, and, consequently, that he could transfer none; and the rule, therefore, must be refused.

ENGLISH NOTES.

Rule refused.

Where there is a conveyance of the reversion, the remedy, by distress, of the assignor for rent due previously to the conveyance is also lost. Threr v. Barton (1569), Moore 94; Dixon v. Harrison (1670), Vaughan 36. In these two cases the tenant had attorned to the assignee, but the Statute of Anne (4 Ann. c. 16, s. 9) makes that immaterial.

And where a reversion vested in joint tenants has been severed by some of them conveying their shares, the right to distrain for rent due before the conveyance is gone. Stavely v. Alcock (1851), 16 Q. B. 636. The Act 32 Hen. VIII. c. 37 gave executors and administrators the right to distrain for rents due to the deceased in his lifetime. But, though a lord of a manor may of common right distrain for his copyhold rents, Laughter v. Humphrey (1596), Cro. Eliz. 524, the executors of a copyholder cannot distrain under the Statute. Sands and Hempston's case (1585), 2 Leonard, cxlii.

No. 4. Smith v. Mapleback, 1 Term Reports, 441.

The point made in the principal case that if the power given by the deed to distrain was a mere licence to seize chattels it could not be assigned, is confirmed by In re Davis; Ex parte Rawlings (1888), 22 Q. B. D. 193, 37 W. R. 203.

AMERICAN NOTES.

At common law none but the lessor and his heirs or legal representatives can take advantage of a breach of covenant in a lease. Norris v. Milner, 20 Georgia, 563; Smith v. Brannan, 13 California, 107; Dewey v. Williams, 40 New Hampshire, 222; Winn v. Cole's Heirs, 1 Mississippi, 119; Parker v. Nichols, 7 Pickering (Mass.), 111; Cross v. Carson, 8 Blackford (Indiana), 138; 44 Am. Dec. 742; Hooper v. Cummings, 45 Maine, 359; Cornelius v. Ivins, 26 New Jersey Law, 376.

In Slocum v. Clark, 2 Hill (New York), 475, it was held that the assignee of "all the rents remaining unpaid," without an assignment of the lease, does not carry the right of distress. "The transfer was therefore of a mere chose in action, which cannot carry with it the remedy by distress."

In Keaton v. Tift, 56 Georgia, 446, it was held that the assignee of a right

to let certain premises and collect the rent had the power to distrain as against one who took a lease from him.

WHERE the original lessor of premises obtains possession of them under an agreement with an assignee of the original lessee under which the original lessor is to possess them for the whole term, and as the consideration for the transaction is to pay to that assignee an annual sum, this oper ates as a surrender of the term, and the stipulated annual sum cannot be distrained for in name of rent.

Lease.

Smith v. Mapleback.

1 Term Reports, 441-446 (1 R. R. 247).

Surrender for increased Rent. Right of Distress determined. Where a lease came into the hands of the original lessor by an agree- [441] ment entered into between him and the assignee of the original lessee, "that the lessor should have the premises as mentioned in the lease, and should pay a particular sum over and above the rent annually towards the good-will