ACTION DISMISSED

Evening Post, Volume CXVIII, Issue 49, 27 August 1934, Page 10

ACTION DISMISSED

DISTRAINT OF GOODS

NOT ILLEGAL OR EXCESSIVE

That there had be'en -neither illegal noi- excessive distress within the meaning- of that term and that the plaintiff was not even entitled, to nominal dam-' ages was the. finding of. the Chief Justice- (Sir Michael Myers), who in an oral judgment given today, dismissed the action brought by John Hugh ■ Me.rrick, shop- assistant, of Wellington, against the Public Trustee. His Honour, however, did not allow the defendant costs. :

The action was hoard last. week. On December 1, 1931, Morriek became the tenant of a house in Tinakori Eoad by an assignment'front the previous tenants, and'the premises wero kept as a boarding-house by his mother. He alleged that the Public Trustee wrongfully distrained goods in the house as a distress for pretended'arrears of renc to the value of £40 2s, and he claimed the return of the goods and £100 general damages. '

"In this case I said at the conclusion of tho hearing that in my opinion the distress was not illegal for the reasons that I then gave, and which I do not think it necessary now1 to repeat," said his Honour. That,, however, left open the question as to whether or not there had been an excessive distress. In one sense it was excessive, but not in the'true legal sense in which tho legal expression was used. The amount alleged in the warrant to distrain as being due. for rent was too largo by the sum of £2 16s, if ho remembered rightly, by reason of his finding Of the fact, that the rental as from May 27, the date of the expiration of the lease, was to be £2 10s per week and not £3 12s as previously. However, he was satisfied on tho authorities that there was not an excessive distress within the meaning of that term. There was really no- disproportion between the amount really owing and the value of the goods taken. That being so,'he did not think that tho plaintiff was entitled even to nominal damages. His action must bo dismissed, but for the reason indicated by him at the conclusion of the hearing his Honour said he certainly was not prepared to allow costs to the Public Trust Office. "I think, as I said then," concluded his Honour, "that to their blunders this litigation has been largely due; first in tho form of the warrant to distrain and then in stating in the warrant to distrain as the amount due a larger amount than was in fact due. That, of course, was owing to the fact Uhat the rental as from May 27 was only '£2 10s per week and not £3 125." Mr. A. B. Sievwright. appeared for the plaintiff, and Mr. O.'C. Mazcngarb for the defendant. . . . j