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No. 6. — Whitley v. Roberts, McCleland & Younge, 116–118.

it away.

or he would have waited till the prior claim had been satisfied, and then taken the overplus if there were any; but, at once, he wrests the corn out of the possession in which it was, and carries

Under these circumstances, I think, that from his wilful conduct, he has taken the responsibility upon himself, and abandoned the benefit he might otherwise have derived from the statute.

GARROW, B., concurred.

*HULLOCK, B. This rule was obtained upon two [* 117] grounds : with respect to the first, I think the Court can only look to the evidence given before the Judge, by whom the case was tried; it would not be warranted in examining into the origin of the title. Now it appears by the evidence of the tenant, that the taking was from these parties severally, and therefore the defendant would be estopped from saying, that the plaintiff was one of four joint tenants, and had mistaken her course. If there had been any mistake upon that part of the case, the question arising upon it would not be a proper one for the consideration of the Court, but ought to have been left to the jury. If there were any doubt upon it now, I should be of opinion that the case ought to go down again, but it is idle to imagine it. Then if they are to

. be considered as tenants in common, Harrison v. Barnby is decisive that one such tenant may do as the plaintiff has done; and Cutting v. Derby, in the 2nd Blackstone, 1077, is a much stronger case. With respect to the other ground, I apprehend it to be clear that to entitle a party to the demand of the copy of the justice's warrant, he must show that he acted in obedience to it. The question is, whether this defendant did so. The act provides by the 6th section, that no action shall be brought against any constable, headborough, or other officer, for anything done in obedience to any warrant, under the hand or seal of any justice of the peace, until demand hath been made, or left at his abode in writing, of the perusal and copy of such warrant, and the same hath been refused, or neglected for the space of six days. In Nutting v. Jackson, E. 13 G. III. Bull. N. P. 24, this species of officers was held to be within the act. In some of the cases cited, the party made a mistake in the person of the individual against whom the warrant was directed, and that was held to be such a deviation from the words, as would exempt the magistrate from any liability. Did this * man seize the property of E. Jones at [* 118] ]



No. 6.

· Whitley v. Roberts, McCleland & Younge, 118, 119.

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the time of the seizure? I think he did ; that was very much gone into in the case of the King v. Cotton. There the question was, whether goods distrained for rent were liable to an extent, and the point arose, whether the property of the owner of the goods was divested by the distress. C. B. PARKER, in his judgment (p. 121), says, “ the distrainer neither gains a general nor a special property, nor even the possession, in the cattle or things distrained; he cannot maintain trover or trespass; for they are in the custody of the law, by the act of the distrainer, and not by the act of the party distrained upon." And again, quoting the language of FOWICKE, C. J., of the C. P., “ Mich. 20, H. VII. fol. 1, pl. 1. The distrainer hath neither property nor possession in the distress, for the pound is an indifferent place between them, and the party is only restrained from the use of the distress, till payment of the rent; and if a stranger takes the goods distrained out of the pound, the lord shall only have a parco fracto ; and in the same case the tenant shall have an action of trespass, for the property remains in him; and it is not like a pledge, for he has a property for the time." Abr. Bro. Property, 52. A distress then causes no alteration of property; and thus far we may proceed with safety, that the overseer was warranted in making that seizure, although the goods were distrained and in custodiâ legis. But then was he warranted in selling them? I think not. It must be understood, that this was a warrant, either authorizing him to seize such things only as were the unqualified, unincumbered property of Jones; or if it did authorize him to take any other, it would be to take them sub modo, and liable to the burthen that was upon them. The ground of the action is the taking away the goods, which amounts to a

It does not appear that they were disposed of in conformity with the warrant. They were seized on the 19th, and carried

away on the instant and sold; in order to show a complete [* 119] obedience to the precept, it should have been * proved,

that the rate assessed was not paid within four days, that the property was then sold, and the surplus returned to Jones. In Bell v. Oakely, the party was commanded to enter into a certain place, and seize property ; he did do so, but not in the manner directed, and he was held not to be justified. If this officer had seized the goods, and held his hands for a few days, until the former distrainer had either resolved not to sell, or that he might receive the overplus of a sale, to which he would have had a right,


Nos. 5, 6. — Pullen v. Palmer; Whitley v. Roberts.


his seizure would have been justifiable. But not having done so, I consider all his acts subsequent to the seizure to have been beyond his authority, and that he is liable to this action, because he did not act throughout in obedience to the warrant, which must be construed according to the subject matter. It is an answer to the argument of his having literally obeyed the order, that his obedience did not come down to the time of the sale. Therefore I agree with the rest of the Court, that this rule should be discharged.

Rule discharged without costs.



One joint tenant may, without the assent of the others, appoint a bailiff to distrain for the rent due to all the joint tenants. Robinson v. Hoffman (1828), 4 Bing. 562; and per Jervis, C. J., in Morgan v. Parry (1855), 17 C. B. 334, 342. In Robinson v. Hoffman, it appeared that one of the joint tenants, being applied to, to authorize the distress, declined to do so. BEST, C. J., considered it unnecessary to decide what would have been the effect of an express dissent on the part of one of the joint tenants; but said that his declining to authorize the distress did not amount to a dissent. It is difficult to say what would amount to an express dissent.

One of two joint tenants may demise his part to the other with the usual incidents of a reversion and right to distrain. Cowper v. Fletcher (1865), 1 B. & S. 464, 34 L. J. Q. B. 187.

A rent-charge may be divided amongst several persons as tenants in common so as to make the tenant of the land liable to the rent-charge liable to several distresses by the sharers in the rent. Rivis v. Watson (1839), 5 M. & W. 255. And if the tenant holding under tenants in common pays the whole rent to one after notice from the other not to pay it, he may still be distrained upon by the others for his share. Harrison v. Barnby (1793), 5 T. R. 246, 2 R. R. 584.


These cases are oited and their doctrine is approved in 1 Taylor on Landlord and Tenant, sects. 569, 760, and in Wood on Landlord and Tenant, pp. 165, 175, 1308. This doctrine is also stated in 5 Am. & Eng. Cyc. of Law, p. 707, citing Robinson v. Hoffman, 4 Bing. 562, Harrison v. Barnby, 5 T. R. 246, and Whitley v. Roberts. A tenant in common may distrain for his share of the rent. Grassmeyer v. Beeson, 18 Texas, 753 ; De Coursey v. Guar. antee, &c. Co., 81 Pennsylvania State, 217.

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The bailiff or agent of a corporation may distrain for a rent under a dernise made by an agent on behalf of the corporation, if rent has been paid under the tenancy so created.

Wood v. Tate.

2 Bos. & P. (N. R.) 247-257 (9 R. R. 645.)


Demise by Corporation. Distress by Agent. By indenture between A., B., and C., bailiffs, and D., E., and F., aldermen, with the assent of the burgesses of the borough of M. of the one part, and J. S. of the other part; the said bailiffs, alderinen, and burgesses demised lands to J. S. for years, to be holden of the said bailiffs, aldermen, and burgesses; and the deed was executed by A., B., and C., D., E., and F.; but not sealed with the corporation seal ; J. S. having paid rent to the bailiffs as chief officers of the borough: held, that their servant might make cognizance for taking a distress under a demise by the corporation, notwithstanding a notice had been given by the aldermen (one of whom was a party to the indenture) to pay the rent to them ; for the payınent of rent to the bailiffs adınitted a tenancy from year to year under the corporation.

Replevin. The defendant made cognizance first as bailiff of the bailiffs and burgesses of the borough of Morpeth, in the county of Northumberland, acknowledging the taking the plaintiff's goods and chattels as a distress for £3 5s. for half a year's rent ending on the 29th May, 1803, due from the plaintiff to the said bailiffs and burgesses for the messuage or tenement and yard or parcel of

land adjoining thereto, in which, &c., with the appurten(* 248] ances held and enjoyed by the plaintiff as tenant * thereof,

to the said bailiffs and burgesses, by virtue of a certain demise thereof to him, the said plaintiff, theretofore made at and under the yearly rent of £6 10s. payable half-yearly, to wit, Whitsuntide and Martinmas in every year, by even and equal portions. To this cognizance the plaintiff pleaded in bar, 1st, That he did not enjoy the said messuage or tenement and yard or parcel of land in which, &c., with the appurtenances, as tenant

No. 7. — Wood v. Tate, 2 Bos. & P. (N. R.) 248, 249.

thereof to the said bailiffs and burgesses of the borough of Morpeth aforesaid in manner and form as the said defendant had in his said cognizance alleged. 2dly, Riens en arrere. 3dly, That the said defendant was not bailiff to the said bailiffs and burgesses of the borough of Morpeth, and did not take the said goods and chattels in the declaration mentioned as bailiff of the said bailiffs and burgesses of the borough of Morpeth aforesaid in manner and form as the said defendant in his cognizance aforesaid had alleged.

On each of these pleas in bar an issue was joined. There were other cognizances and pleas, and issues joined thereon.

This cause came on to be tried before Mr. Justice CHAMBRE at the last assizes for the county of Northumberland, when a verdict was found for the plaintiff, subject to the opinion of the Court on the following case :

The burgesses of the borough of Morpeth, in the county of Northumberland, are a corporation by prescription, by the name, style, and title of The Bailiffs and Burgesses of the Borough of Morpeth, in the County of Northumberland, consisting of two bailiffs and other officers, and an indefinite number of burgesses or freemen. The bailiffs and certain other officers of the corporation are elected and sworn into their respective offices annually, - viz., at the Court-leet and Court-baron held on the first Monday next after Michaelmas day. The bailiffs are the * chief [* 249] officers of the borough; they call all corporate meetings or guilds, and preside at the same; they alone collect and receive the rents and revenues of the corporation. There are within the said borough seven companies or fraternities, consisting of an indefinite number of burgesses and free brothers. The free brothers are not burgesses, or freemen of the borough, but are merely members of their respective companies, and it is from them the borough is supplied with burgesses or freemen; but when elected and admitted burgesses or freemen, they still continue members of their respective companies. Each of these seven companies is governed by its own alderman, who is elected and sworn into office at the head-meeting day of his company, held every year at a different time from and unconnected with the Court-leet and Courtbaron, where the bailiffs and other officers of the borough are elected and sworn into office. The burgesses or freemen of the borough are elected by the several companies or fraternities from the free brothers of each company in certain proportions, viz. : the

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