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No. 8. — Gray v. Stait, 11 Q. B. D. 670, 671.

c. 14, s. 2, now repealed: the statute now in force is 11 Geo. II. c. 19, s. 1, which is substantially the same, except that the time is extended within which the distress may be made.

[BRETT, M. R. It was held by LOPES, J., that although [*671] the * plaintiff's goods were fraudulently removed, and were

removed during the tenancy, yet, as the goods were seized after the conclusion of the tenancy, this action for wrongful distress was maintainable. The argument for the defendants really is, that as the landlord might have distrained, after the termination of the tenancy, upon the premises if the tenant had continued in possession, he could lawfully distrain off the premises although the tenant had given up possession.]

The present question has never before arisen, and there is no authority precisely in point. The defendant was, at all events, entitled to distrain the goods removed on the 29th of September, when the quarter's rent became due. Dibble v. Bowater, 2 E. & B. 564, 22 L. J. Q. B. 396. It was intended by 11 Geo. II. c. 19, s. 1, that the landlord should have a summary remedy for a fraudulent removal, and should not be driven to a barren right of action. Opperman v. Smith, 4 D. & R. 33. In Nuttall v. Staunton, 4 B. & C. 51, it was held that a landlord might lawfully distrain where the tenant, by his permission, had remained in possession of part of a farm after the expiration of the tenancy.

Upjohn, for the plaintiff. It was intended by 11 Geo. II. c. 19, s. 1, to confer upon a landlord a power of distraining, of which he had been deprived by his tenant's fraud. In the present case the tenant, the plaintiff, went out on the 29th of September, and the landlord, the defendant Stait, distrained on the 18th of October : the plaintiff committed no fraud; it was not wrongful in him to remove his goods and to go out of the house of the defendant Stait, for it was his duty to give up possession on the 29th of September. Further, the statute gives no power to distrain unless the goods

every landlord or lessor, landlords or wherever the same shall be found, as a lessors, within that part of Great Britain distress for the said arrears of rent; and called England, dominion of Wales, or the same to sell, or otherwise to dispose the town of Berwick-upon-Tweed, or any of, in such manner as if the said goods person or persons by him, her, or them and chattels had actually been distrained for that purpose lawfully empowered, by such lessor or landlord, lessurs or within the space of thirty days next landlords, in and upon such premises, for ensuing such conveying away or carrying such arrears of rent; any law, custom, off such goods or chattels as aforesaid, to or usage to the contrary in anywise not take and seize such goods and chattels, withstanding.”

No. 8. — Gray v. Stait, 11 Q. B. D. 671, 672.

are removed after the rent is in arrear. Rand v. Vaughan, 1 Bing. N. C. 767. It is clear that when a tenant has given up possession, his goods cannot be distrained. Taylerson v. Peters, 7 A. & E. 110.

J. M. Moorsom, in reply. The answer to the argument founded upon Taylerson v. Peters is, that in that case at the time of the distress another tenant had come into possession.

BRETT, M. R. The defendants cannot get over this difficulty, — * namely, that if there had been no fraudulent [* 672] removal, there could have been no lawful distress either at common law or under the statutes.

In this case the action is brought for a wrongful seizure of goods. The goods were seized by the authority of the defendant Stait, who had been landlord of a house let to the plaintiff. The goods seized had been on the demised premises whilst the tenancy existed; but they were removed on the 27th, 28th, and 29th of September. Rent was due at the time of the removal of those goods, which were removed on the 29th of September. The jury found that the goods had been removed with intent to prevent a seizure, and therefore had been fraudulently removed. Notwithstanding this finding, the Judge entered the judgment for the plaintiff; he was of opinion that the goods had not been lawfully seized under the statutes. I think that no question can arise with regard to those goods, which were removed on the 27th and 28th of September before the quarter's rent was due; clearly they were not seized under the statutory powers. With regard to those goods which were seized on the 29th of September, when the rent was due, the question has been well argued on both sides; but in the result I think that the landlord remains unprotected, and that the decision of LOPES, J., on the point before us was right. The statute relied upon, 11 Geo. II. C. 19, s. 1, has only a limited operation; where there has been a fraudulent removal of the tenant's goods in order to prevent a distress, it confers upon the landlord a power to distrain in those cases in which, if the goods had not been removed, he might have distrained either under the common law or under 8 Anne, c. 14, ss. 6, 7. In this case could the landlord have distrained if the goods had not been fraudulently removed ? It seems to me that he could not. The 6th section of 8 Anne, c. 14, gives power to distrain after the determination of the tenancy; but this power is subject to the limitations con

No. 8. — Gray v. Stait, 11 Q. B. D. 672, 673.

tained in s. 7; and one of those limitations is that the distress must be levied" during the possession of the tenant from whom such arrears became due.” The possession of the tenant may be either at will or by sufferance; and his goods may be distrained so long

at least as he is in actual possession. The statute 11 [* 673] Geo. II. c. 19, s. 1, does not help a * landlord, who could

not have levied a distress if the goods had remained on the demised premises; here the tenant at the time of the distress had no possession of the demised premises, either rightful or wrongful. The judgment of LOPES, J., was right, and the appeal must be dismissed.

COTTON, L. J. I am of the same opinion. The statute 11 Geo. II. c. 19, s. 1, gives a power of distress over goods fraudulently removed off the premises only where they would have been distrainable if they had remained upon the premises. The power to distrain after the expiration of a tenancy is conferred by 8 Anne, c. 14, s. 6; but this power is limited by certain conditions contained in s. 7. In order to justify a distress, it is clear to me that there must be a possession, either wrongful or rightful; in the present case there was no possession of the demised premises by the plaintiff at the time of the seizure. The appeal must be dismissed.

BOWEN, L. J. I am of the same opinion. The defendants' counsel in effect contended that the landlord has a right of distress whenever the tenant's goods have been fraudulently removed, even although he would not have had a right of distress if they had not been fraudulently removed. But I cannot agree to this argument. The statute 11 Geo. II. c. 19, s. 1, allows a distress upon goods fraudulently removed, only where a distress could have been lawfully made if they had remained upon the demised premises. The argument for the defendants is not assisted by the provisions of 8 Anne, c. 14, ss. 6, 7; these enactments merely provide that the goods of the tenant may be distrained after the expiration of the tenancy whilst he remains in possession. In the present case the plaintiff, the tenant, was not in possession, and the goods were not upon the demised premises at the time when they were seized; but the fact that the tenant's goods were upon the demised premises would not conclusively indicate that he was in possession of the premises. Accordingly, in a case of fraudulent removal like the present, it would be necessary to leave to the jury the ques

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tion, whether if the tenant had not fraudulently removed his goods and gone out, he would have been in * possession [* 674] merely by reason of leaving the goods upon the premises if he had left them there. This is a question which no jury could be expected to answer.

Appeal dismissed.

ENGLISH NOTES.

To bring the removal of the goods within the statute they must not have been removed before the rent became due. Rand v. Vaughan (1835), 1 Bing. N. C. 767, 1 Scott 670, 1 Hodges 173. But, where the tenant fraudulently removes the goods on the day the rent becomes due, there is a fraudulent removal within the statute, and on the fol. lowing day (when the rent is in arrear) or within thirty days after, the landlord may follow and seize them. Dibble v. Bowater (1853), 2 Ell. & Bl. 564, 22 L. J. Q. B. 396, 17 Jur. 1054.

If the removal is " fraudulent” it is not necessary, to bring the case within the statute, that the removal should be also “ clandestine.” And although the removal be done openly, it is a question for the jury whether it was done for the purpose of depriving the landlord of his remedy by distress, and, if so, it is fraudulent. Opperman v. Smith (1824), 4 Dowl. & Ry. 33; Parry v. Duncan (1831), 7 Bing. 243, 5 Moore & Payne 19, M. & M. 533; Inkop v. Morchurch (1861), 2 F. & F. 501; Gillam v. Arkwright (1850), 16 L. T. (O. S.) 88. And where a creditor of the tenant, apprehending that the goods might be distrained wich the assent of the tenant but not (apparently) upon his initiative, carried off stock in satisfaction of a bonâ fide debt, this was held not to be a fraudulent removal within the statute. Bach v. Meats (1816), 5 M. & S. 200, 17 R. R. 310.

The statute applies to the goods of the tenant only, and not to those of a stranger. Thornton v. Adams (1816), 5 M. & S. 38, 17 R. R. 257; Foulger v. Taylor (1860), 5 H. & N. 202, 29 L. J. Ex. 154, 8 W. R. 279 (per MARTIN, B., 5 H. & N. 210). A similar point is decided upon the statute 19 & 20 Vict., c. 108, s. 75, in Beard v. Knight (1858), 8 El. & Bl. 865, 27 L. J. Q. B. 359; Hughes v. Smallwood (1890), 25 Q. B. D. 306, 59 L. J. Q. B. 503, 63 L. T. 198. And a person to whom the property passed under a bill of sale given by the tenant is a stranger for the purpose. Tomlinson v. Consolidated Credit, &c. Co. (1889), 24 Q. B. D. 135, 38 W. R. 118.

Where a tenant had given due notice to quit a farm, and before the expiration of the notice agreed to occupy and the landlord agreed to let him a part of the farm, the landlord was held not entitled, after

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the expiration of the notice, to distrain (under 8 Anne, c. 14, ss. 6 & 7) upon the premises so continuing in occupation of the tenant, for rent due under the old tenancy. For, the premises being held under a new tenancy, the distress was not made “during the possession of the tenant” within the meaning of s. 7. Wilkinson v. Peel (21 January, 1895), 1895, 1 Q. B. 516, 64 L. J. Q. B. 178, 72 L. T. 151, 43 W. R. 302.

To justify the breaking open of a lock (under 11 Geo. II., c. 19, s. 7) to distrain cattle which have been fraudulently removed, it must be shown that a constable was present when the lock was broken open. Rich v. Woolley (1831), 7 Bing. 651. A special constable duly appointed for the occasion by the warrant of a magistrate is sufficient. Cartwright v. Smith (1832), 1 Mood. & Rob. 284.

AMERICAN NOTES.

This case is cited in 2 Taylor on Landlord and Tenant, sect. 576.

In most of the States the landlord is authorized by statute to follow goods removed from the premises. In Pennsylvania the removal must have been after rent fell due. Grace v. Shively, 12 Sergeant & Rawle, 217, and the removal must have been fraudulent. Purfel v. Sands, 1 Ashmead, 120. The distraint may be made after such removal, even after expiration of the lease. Dorsey v. Hays, 7 Harris & Johnson (Maryland), 370. See generally, Weiss v. Jahn, 37 New Jersey Law, 93; Poor v. Peebles, 1 B. Monroe (Kentucky), 1; Hale v. Omaha Bank, 49 New York, 626 ; Schenley's Appeal, 70 Pennsylvania State 98; Dalton v. Laudahn, 27 Michigan, 529; Groton Co. v. Gardner, 11 Rhode Island, 626. But in New York this applies only to the tenant's goods, and not to those of others on the premises. Coles v. Marquand, 2 Hill, 447.

No. 9. - SIMPSON v. HARTOPP.

(c. P. 1744.)

No. 10. — CLARKE v. MILLWALL DOCK COMPANY.

(C. A. 1886.)

RULE.

The following things cannot be distrained :

1. Things annexed to the freehold.
2. Things delivered to a person exercising a public

trade to be carried, wrought, worked up, or

managed in the way of his trade or employ. 3. Cocks or sheaves of corn.

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