Resident Magistrate's Court.

Bruce Herald, Volume IX, Issue 891, 23 March 1877, Page 5

Resident Magistrate's Court.

MILTON. Tuesday, 20tii March, ' (Before Mr E. H. Carew, E.M.) Civil Case. »T£R t. w'laren akd others, The only business before the Court was

the delivery of judgment in this important case, atf follows : — This is an action for treble damages for pound, breach, and rescue, and the defence rests upon two points : — Ist. That there is bo proof that at the time of the seizure any rent was due by defendant M'Laren to plaintiff. 2nd. That the goods were not lawfully seized and impounded, the plaintiff's bailiff not having at the time of seizure complied with the provisions of the " Distress and Replevin Act, 1866," by delivering a copy of 1 bis warrant of distress, a signed inventory of | the goods seized, and a list of charges, as required by sections 4 and 5 of that Act. Upon the first point there is ample proof. The counterpart of the lease produced and admitted shows that rent is payable on the 19th January and 19th July, at the rate of -£56 per annum, and both plaintiff and defendant M'Laren show by their evidence that no rent has been paid for a period later than 19th July, 1876, consequently on the 19th January, 1877, a half-year's rent, amounting to £28, became due, and the seizure was not made till the 21st of February, thus giving the full days of grace required by the Conveyancing Ordinance. With regard to the second point, the evidence shows that plaintifl's bailiff, authorised by warrant in due form, made a seizure on a part of the demised land ; that the lessee was then absent from the premises, but his manager and workmeu — the other defendants — were there, to whom the bailiff , read his warrant of distress, and said that, ! acting under that warrant, be seized 90 bags of grass seed, and indicated those be seized by pointing to them. These bags of seed were subsequently stacked together, and covered for protection from the weather. The bailiff banded the defendant Clelland a form prepared for an inventory, but it was J neither signed nor did it show which goods ! had been seized. It is further shown that later in the day the bailiff placed, and left, a copy of his warrant upon the grass seed that be bad seized. Ou the following morning the defendants, acting in concert, removed the grass seed in the presence of the bailiff, under circumstances showing clearly their iutention to do so by force if resistance were offered, and, in fact, did use some force in removing the locked gate of the paddock to enable them to cart the grass seed away. It i« also shown that when the defendants were removing the seed the warrant left there by the bailiff came under the notice of, and was read, or partly read, by one of them, and at this time the bailiff cautioned defendants | that he had seized the goods aud they were breaking the law. The question is, whether, under the circumstances, there was a nondelivery of a copy of the distress warrant, an inventory of the goods seized, and a bill of charges, and whether such omission, iv whole or in part, made the distress invalid. I consider there was a sufficient delivery of a copy of the warraut before the goods were removed, but the document intended for an inventory was iD fact no inventoiy, and there was no delivery of a bill of charges. At common law an irregularity in the conduct or treatment of a distress made a party distressing a trespasser ab initio, nut was held in the case Trent v. Hunt, 9 Exch. 14, that " the want o£ notice is however only, an irregularity." I have not seen a full report of this case, but probably the ruling proceeded on a principle laid down iv the " Six Carpenters' Cases " (' Smith's Leading Cases '), " that a mere non-feasance does not amount to such an abuse as renders a man a trespasser ab initio." The English Statute 11, Qeo. 11., c. 19, s. 19, provides further that where any distress shall be made for any kind of rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, the distress itself shall not be deemed unlawful, nor the party making it therefore deemed a trespasser ab initio. but the party aggrieved may recover satisfaction for any damage sustained thereby. The same Srovision is enacted in the " Distress an I epleyin J^ct, 1868," section 15, with the addition that if tender of amends be made before action brought plaintiff shall recover no damages. The same Act provides a penalty for wilful neglect fir refusal to make out, sign, and deliver an inventory of goods seized, or bill of charges, and for a bailiff distraining without having obtained a warrant of distress in due form, T vmdemand, under these provisions, that even if at common law it could be held that the plaintiffs acts of omission would have invalidated the distress, the English Statute and the " Distress $nd Re^ plevin Act, 1863," make such acts of omission punishable by proceedings for a penaltj 7 , and the tenant can recover by action for any special damage he may have sustained, but they do uot make bad and invalid the original distress. The goods, in my opinion, Avere lawfully seized and impouuded, aud were then in the custody of the law ; the defendants broke the pound and rescued the goods. L find the seizure was of sufficient value to quver the rent, due and charges of distress, and the piaintitt, by the unlawful acts of the defemlauts, was prevented from recovering; the amount. The rent clue and levied iur is £28, the Jtiwful charges qf the bailiff up to day of- rescue 18s — in all <£:.'8 18s — which is the amount of damage sustained by plaintiff, and under the Statute of William and Mary, sess. 1., chap. 5, he is entitled to treble damages. Judgment is therefore for £86 14s, aud costs of Court 495,