DISTRAINT OF GOODS

Dominion, Volume 27, Issue 279, 22 August 1934, Page 6

DISTRAINT OF GOODS

Tenant Proceeds Against Public Trustee ARREARS IN RENT An action for the recovery of goods distrained as a distress for alleged arrears in rent, and for £lOO general damages, was commenced by John Hugh Merrick, shop assistant, Wellington, against the Public Trustee, as executor of the estate of Elizabeth Stuart James, deceased, in the Supreme Court at Wellington yesterday, before his Honour the Chief Justice, Sir Michael Myers. Mr. A, B. Slevwright appeared for plaintiff, and Mr. O. C. Mazengarb for defendant. , . r ._ In his statement of claim, plaintiff f-nid that In 1929 Elizabeth Stuart James, boardinghouse-keeper, noxv deceased, leased to Elizabeth Ann Foreman and Ethel Agnes Horne, Wellington, “Stratheairn,” 182 Tinakorl Road, for five years at the weekly rental of £7l Deceased estate was now administered by defendant, the Public Trustee. In August' 1931, the rent was reduced to £4/10/r per week, and further .to £3/12/- in July; 1932, and to £2/10/- In January, 193 L Rent to the lagt-namr ed rate was paid up to date apd no rent was in arrear on June 23 last. On that day, it was alleged, defen-, dant wrongfully distrained goods of plaintiff' as a distress for pretended arrears of rent. Plaintiff said the rent was'not £4O/2/-' in arrear. The dis-' tress was wrongful, and either a true copy of the distress warrant issued by defendant to his agent was not delivered to plaintiff or that the warrant was, after its issue, altered in a material respect. Defendant denied that m July. 1932, u reduction in rent from £4/10/- to £3/12/had been agreed upon, but said that in January, 1933, defendant agreed with plaintiff that the rent should be reduced to £3/12/-. Defendant denied that a reduction to £2/10/- had been agreed upon in January. 1934; also plaintiff's statement that the rent was not £4O/2/- in arrear, and that the distress was wrongMr. Sievwright said 'that plaintiffs case was that there was a wrongful distress, which might be either illegal or excessive. In this case it was claimed that the distress was illegal and excessive. It was held to be illegal on two grounds, first, that a true copy was not delivered to plaintiff as required by the Act, and secondly, that the warrant was altered by the’bailiff after its issue and before its execution. “The effect of , this was that it was not a true warrant,’and that the bailiff had no authority to levy a distress.” Mr. Sievwright said. Mr. Mazengarb moved for a- nonsuit or judgment for defendant on the ground tljat the digtres? was not illegal or excessive. Jlis Honoiii- ?aid that accordipg to his figures the most that was owing on June H ’was £B6/16/-. and be did not think defendant have distrained for piorC than abouV <33- , , ~ Mr. Majepgapb withdrew his application for a nonsuit, and iti support of his piotion fop judgment said that the twarrant was issued on June 18 in the belief that the rental had never been varied from £3/12/-, but that defendant, was takjng payment on account at £2/10/- in the meantime. Evidence was still being heard when the court adjourned till to-day.