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No. 6.

Whitley v. Roberts, McCleland & Younge, 109, 110.

case.

Jones, in January, 1823, one for the plaintiff, and Brown, jointly; the other for another of the landlords; but the sums respectively due were paid to each party. Another separate distress for rent due at the Lady-Day preceding, was made for the plaintiff, on some standing wheat, concurrently, with one for Brown, on the 15th September, 1823. And this second distress of the plaintiff gave rise to the present action. On the 19th the defendant came with two carts, raised the gates of the fields, which were locked, off the hooks, and seized, took away, and sold within four days, thirty-six shocks of the corn, which had been cut by the parties in possession, under a magistrate's warrant of distress, for £7 78., being the amount of an assessment for the relief of the poor, on the tenant, as an inhabitant and occupier of the parish. The bailiff had told the defendant, before the seizure, that he had distrained on the fields for the plaintiff and Brown. The rest of the wheat distrained upon was sold by the plaintiff's attorney; and the produce of the sale, after deducting the expenses of the harvesting, and the distress, sale, &c., was only £11, which remained in his hands to be paid over. This was the plaintiff's

When it was closed, the magistrate's warrant of distress (which was directed to the defendant, as one of the overseers of the parish, commanding him to distrain the goods of E. Jones, and if the sum assessed and the reasonable charges should not be paid within four days, to sell the distress, retain the assessment, and the charges, and return the overplus on demand), was put in and read for the defendant, - upon which, Temple, C., for that party submitted, that the plaintiff ought to be nonsuited, upon two grounds: 1st. That the plaintiff had shown that she had no right to make this distress; there was a joint demise; the rent therefore was not divisible, and the distress ought to have been made by all the landlords : 2nd. Under the statute 24 Geo. II. c. 44, s. 6,

it having been proved that the defendant had acted under (* 110] the * warrant of magistrates, of the perusal and copy of

which no demand had been made, and refused. The case was left, upon the evidence of the plaintiff, to the jury, who found a verdict for that party, for £6 11s. 9d. ; but the Court (pursuant to the statute 5 Geo. IV. c. 106, which gave power to the Court of King's Bench, Common Pleas, and Exchequer, in certain cases, to grant new trials of causes, which have been commenced and been tried in the Court of Great Sessions in Wales), gave the

No. 6. — Whitley v. Roberts, McCleland & Younge, 110-112.

defendant's counsel leave to move to set aside the verdict on both or either of the above grounds, and to enter a nonsuit.

Temple, C., had obtained a rule for that purpose in the last term, against which, Taunton, W. E., Peake, S., and Daniel, now showed cause.

* 1st. The evidence does not clearly show the exact [* 111] nature of the four landlords' interests; but so far as appears by it, they were tenants in common, and each had a separate interest. The demise of the premises was at one entire rent; but there was a separate and distinct reservation of one-fourth of the rent to each; therefore each had a right to distrain for his own proper portion. Harrison v. Barnby, 5 T. R. 246 (2 R. R. 584) shows that a terre-tenant, holding under two tenants * in common, cannot pay the whole rent to one, after [* 112] notice from the other not to pay it. Supposing the demise to have been joint, yet the subsequent agreement would operate by relation, and give several interests. Bacon's Abr. Tit.“ Replevin,” K. But if it were certain that a joint rent had been reserved to the landlords in entirety, yet the distresses might have been separated. This is supported by Lord Holt's authority, in Pullen v. Palmer, (p. 623, ante) 3 Salk. 207, where his Lordship said, that “one joint tenant may distrain, but cannot avow separately." It follows, that the plaintiff's distress was lawful. 2dly. That being so, the defendant is not within the protection of the 6th section of the statute 24 Geo. II. The provisions of that statute do not apply to any other case than where the officer has acted in obedience to the warrant, and the magistrate would be liable if the act done were illegal. That was decided in Money v. Leach, 3 Burr. 1742; and Bell v. Oakely, 2 M. & S. 259 (15 R. R. 238), Milton v. Green, 5 East, 233, 1 Smith, 402, and all the subsequent cases proceed upon the same principle. In this case the warrant directed the defendant to seize the goods of Jones, but he seized goods which were not his, and therefore was a wrong-doer; the corn had been previously distrained upon, and was then in custodiâ legis. Jones had then only a qualified right of property; he had no right of possession to the wheat. That was in the persons who had distrained; (HULLOCK, B., observed that the contrary had been settled in a very famous case, Rex v. Cotton, Parker, 121, 8 R. C. 181). However that may be, the defendant was only commanded to take those goods of which Jones

No. 6.

Whitley v. Roberts, McCleland & Younge, 112-114.

had the absolute right of property, and also the right of possession; those goods which were unfettered by the claim of any third person: but Jones's right of property in the corn was to a certain

degree taken away; he would not have been entitled to [* 113] take possession * of it himself, nor to have maintained

trover for it. The party injured must have a remedy against somebody, Parton v. Williams, 2 B. and Ad. 330;the magistrates cannot be answerable, for the warrant was perfectly regular, and the demand of a copy of it would not have given an action against them. It might be argued from Parton v. Wil. liams, that if the defendant believed he was acting bona fide in obedience to the warrant, when he seized the corn, he would have been protected by the statute; but in this case he was told what had occurred, and warned of the consequences, and he insisted on proceeding. His conduct, therefore, was not the effect of ignorance or inadvertence, but of wilful perseverance. In the course of the argument Harper v. Curr, 7 T. R. 270 (4 R. R. 440), was mentioned to show that the statute extended to church wardens acting within the line of their duty.

Temple and Corbett, in support of the rule, insisted, in reference to the first point, that it had been taken for granted at the trial, that the landlords were co-parceners, and that made a very material difference in the case. Putting the first distress out of the question (the Court had intimated that it could not be supported), and taking the case as it appeared upon the evidence, the plaintiff's second distress was illegal. The demise was of one term at one entire rent, and that rent could not be split into four, so as to give four separate distresses, which would be oppressive in the extreme. But it was put upon the record that the plaintiff had distrained for herself alone, while there was a distinct distress made at the same time for another of the landlords. There

fore the plaintiff did not bring herself within the rule of (* 114] law, on which alone a * distress by her could be sustained,

which was, that a distress might have been made by one in the name of all the rest. But if that were held otherwise, then, on the second ground, the action was not maintainable, for the defendant was entitled to the benefit of the statute. The statute was passed for the protection of officers acting bona fide in the performance of their duty, and this officer was so acting.

See the judgment of HOLROYD, J., 2 B. & Ad. 339.

No. 6. — Whitley v. Roberts, McCleland & Younge, 114, 115.

Under the warrant he was bound to take all the property of Jones, and it was not averred by the record that he did more, for the corn still continued to be his property. (HULLOCK, B. There is another objection to his conduct; the warrant directed him to distrain the goods; and if the rate were not paid within four days, to sell them; but he seized, took them away, and sold them uno flatu.) At all events the question was so nice and difficult as to bring him within the policy and meaning of the act. This differed from all the cases cited on the other side, inasmuch as it was not one of wilful wrong, or of a clear deviation from the command of the warrant, which alone excluded the officer from the protection given by the law. To hold this officer liable to the action would be a peculiar hardship on him, because, had he refused to obey the warrant, he would have been liable to an indictment for his disobedience, even if it turned out that the distress would have been in some respects illegal. They cited Price v. Messenger, 2 Bos. and P. 158 (5 R. R. 559).

ALEXANDER, C. B. It appears to me, that this rule must be discharged. Two questions have been argued. 1st. Whether the original distress was proper at all; whether, from the situation of the parties, any one of the persons under whom the land was held, was entitled to make a distress for the portion of rent due to him. There is no evidence with respect to their title. But there is no * doubt, that in reference to the [* 115] tenant, they must be taken to have been tenants in common, for the tenant made a specific contract to pay the rent to them in four parts, and that contract had been previously acted on. Therefore, upon whatever terms they may have taken the estate, as between themselves, as between Jones and them they must be considered as tenants in coinmon. Consequently, it seems clear, that the distress was proper. The second question raised, was, whether this defendant is entitled to the benefit of the act of Geo. II., and whether the right of action is not barred, in consequence of the plaintiff having omitted to demand a copy of the warrant under which the defendant acted. Now I am satisfied from the cases, that unless it be proved at the trial, that the act complained of was done in obedience to the warrant, the officer is not within the protection of the statute; and it seems to me that this officer could not have acted so, because the warrant required him to distrain the goods of Jones, and sell them within four days,

No. 6. — Whitley v. Roberts, McCleland & Younge, 115, 116.

unless the sum assessed were paid, and to return the overplus on demand. But in the state in which things then were, he had no right to seize the property as the goods of Jones, because there were other persons entitled to the benefit of it by a prior title. He appears to have been apprised of the actual circumstances, but he nevertheless took away a part of the wheat and sold it. He had no right to do so, and he exceeded his authority; for the warrant applied to those goods only in which Jones was particularly and solely interested.

GRAHAM, B. I agree with my LORD CHIEF BARON. With respect to the first part of the case, we cannot look into the title further than as it is shown by the evidence, and on that, nothing is more distinct, than that the interest taken by the landlords under the contract with Jones, was that of tenants in common.

The distinction between tenants in common and joint tenants (* 116] is very plain, and * there is good reason for it. What

ever may be the number of joint tenants of an estate, no one of them has a right to any individual part of the estate, or the rent, because each holds per my et per tout, and there is but one complete title in all. But the case of tenants in common who have unity of possession only, is quite different, and when one tenant in common distrains, he is not required to distrain for the others, all of whom may have been paid the portions to which they are separately entitled. In considering the second question, I was at first a little doubtful, but my doubts have been removed. The statute has said that the officer shall be protected in all cases where he acts merely ministerially, and the Court would certainly wish to adopt the intention of the legislature. But in holding the defendant liable in this case, they impose no hardship on him. The magistrates not being aware of the landlady's distress, properly issue their warrant to the overseer to take the goods of E. Jones.

The overseer comes upon the property, and discovers the obstruction to the execution of the precept. What duty is then laid upon him, beyond the exercise of an ordinary discretion. Though the act of distress had not changed the property, yet it had qualified it so, that the chattels were not to be touched as the property of the tenant. They were then in the custody of the law; and that was enough to excite caution in the most inexperienced man living. A prudent man would have gone immediately to the magistrates, and acquainted them with what had occurred;

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