§§ 45, 46. Remedy for wrongful distress agistment might be distrained for rent; though in Miles v. Furber (a), Mellor, J., doubted if it would apply if it were shown that a person exercised the trade of agisting cattle. See Rolle Abr., 669; Cro. Eliz., 549; Dixon, p. 275. 46. Where any dispute arises (a) in respect of any distress having been levied under this contrary to the provisions of this Act; or Act. (b.) as to the ownership of any live stock distrained, or as to the price to be paid for the feeding of such stock; or (c.) as to any other matter or thing relating to a distress on a holding to which this Act applies:1 such dispute may be heard and determined by the county court or by a court of summary jurisdiction, and any such county court or court of summary jurisdiction may make an order for restoration of any live stock or things unlawfully distrained, or may declare the price agreed to be paid in the case where the price of the feeding is required to be ascertained, or may make any other order which justice requires: any such dispute as mentioned in this section shall be deemed to be a matter in which a court of summary jurisdiction has authority by law to make an order on complaint in pursuance of the Summary Jurisdiction Acts; but any person aggrieved by any decision of such court of summary jurisdiction under this section may, on giving such security to the other party as the court may think just, appeal 5 to a court of general or quarter sessions. 4 Scope of (1) The effect of sub-sect. (c) is very wide, and includes all the section. disputes as to illegal or excessive distress which were formerly subjects of an action in the High Court of Justice; but see note (3), infra. (2) It is to be observed that this section is permissive, and does not exclude the jurisdiction of the High Court, so that a person aggrieved may still bring an action for illegal distress if he think fit. Sect. 60 saves all present rights of a landlord or tenant not expressly excluded by the Act. (3) It is doubtful if the words “ or may make any other (a) L. R. 8 Q. B. p. 83. order" would enable magistrates to award damages. Such an order would not seem to be quite outside their jurisdiction, as they have already power of enforcing certain civil debts. See Summary Jurisdiction Act, 1879 (42 & 43 Vict. c.49), ss. 6 & 7. §§ 46, 47, 48. (4) The matter will be brought before the Court of Summary Procedure Jurisdiction by a complaint made by the person aggrieved, before a followed by a summons issued thereupon. A complaint must Court of be made within six months of the time when the matter of such summary jurisdiccomplaint arose: Morant v. Taylor (b). It is to be presumed, tion. that any proceedings under this section must be taken before the magistrates having jurisdiction in the district within which the matter arose. The mode of making and enforcing summary orders by the justices other than for the payment of money, is laid down in the Summary Jurisdiction Act, 1879, sect. 34. The person making default may be ordered to pay a sum not exceeding 17. for every day he is in default, or may be imprisoned till he has remedied his default. quarter sessions, (5) The procedure on appeal to a Court of General or Quarter Procedure Sessions, is regulated by the Summary Jurisdiction Act, 1879, on appeal sect. 31. Notice in writing of the intention to appeal must be to the given to the other party, and to the clerk of the Court of Summary Jurisdiction within seven days after the day on which the decision of the Court (of Summary Jurisdiction) was given. Such notice must contain a statement of the general grounds of the appeal (sub-sect. 2). The appeal is to the next practicable Court of General or Quarter Sessions having jurisdiction in the county, borough, or place for which the Court of Summary Jurisdiction acted, and holden not less than fifteen days after the day on which the decision was given, upon which the order was founded (sub-sect. 1). The notice required by sub-sect. 2, must be in writing, and may be transmitted as a registered letter by the post (sub-sect. 7). 47. Where the compensation due under this Act, or under any custom or contract, to a tenant, has been ascertained before the landlord distrains for rent due, the amount of such compensation may be set off against the rent due, and the landlord shall not be entitled to distrain for more than the balance. of certio 48. An order of the county court or of a court of Exclusion summary jurisdiction under this Act shall not be rari. quashed for want of form, or be removed by certiorari or otherwise into any superior court.1 (b) 1 Ex. D. 188. 88 48, 49, 50. Limitation of costs in case of distress. Distress for a sum under 207. Repeal of c. 5, s. 1, (1) Under words in the Prevention of Cruelty to Animals Act (a), similar to those in this section, it was held that the Court of Queen's Bench was precluded from entertaining a case stated by justices for the opinion of the Court: Reg. v. Chantrell (b); but see the Summary Jurisdiction Act, 1879, sect. 40 (c). 49. No person whatsoever making any distress for rent on a holding to which this Act applies when the sum demanded and due shall exceed the sum of twenty pounds 1 for or in respect of such rent shall be entitled to any other or more costs and charges for and in respect of such distress or any matter or thing done therein than such as are fixed and set forth in the Second Schedule hereto. (1) In the case of a distress for a sum under 201., the statute 57 Geo. III. c. 93, s. 1, applies. Under that Act no person making any distress for rent, where the sum demanded and due shall not exceed the sum of 201., shall have out of the produce of the goods or chattels distrained upon and sold more costs and charges for such distress than such as are fixed and set forth in the schedule thereto, nor shall make any charge whatsoever for any act, matter, or thing mentioned in the said schedule, unless such act shall have been really done. Man in possession, per day 3s. Od. 2s. 6d. Appraisement, whether by one broker or more, 6d. in the pound on the value of the goods. Stamp, the lawful amount thereof. All expenses of advertisements, if any such, 10s. Catalogues, sale, and commission and delivery of goods, ls. in the pound on the net produce of the sale. It appears that the statute does not apply to a distress made for more than 20l., though levied upon goods, which are appraised and sold at a less value than 20%. Child v. Chamberlain (d). 50. So much of an Act passed in the second year of 2 W. & M. the reign of their Majesties King William the Third and Mary, chapter five,1 as requires appraisement before sale of goods distrained is hereby repealed as respects as to ap praisement (a) 12 & 13 Vict. c. 92, s. 26. (b) L. R. 10 Q. B. 587. any holding to which this Act applies, and the landlord §§ 50, 51. or other person levying a distress on such holding may sell the goods and chattels distrained without causing them to be previously appraised; and for the purposes of sale the goods and chattels distrained shall, at the request in writing of the tenant or owner of such goods and chattels, be removed to a public auction room or to some other fit and proper place specified in such request, and be there sold. The costs and expenses attending any such removal, and any damage to the goods and chattels arising therefrom, shall be borne and paid by the party requesting the removal.2 (1) The statute, 2 W. & M. c. 5, requires goods distrained to be appraised before sale by two appraisers. An inventory must still be made though an appraisement is no longer necessary. (2) It is to be observed, that the costs and expenses of removal (if any) are not included in the 2nd Schedule, although it is said in sect. 49, that the person making the distress is to be entitled to no other or more costs and charges than those therein fixed. See Form 15. 51. The period of five days provided in the said Act of William and Mary, chapter five, within which the tenant or owner of goods and chattels distrained may replevy the same shall, in the case of any distress on a holding to which this Act applies, be extended to a period of not more than fifteen days,1 if the tenant or such owner make a request in writing in that behalf to the landlord or other person levying the distress, and also give security for any additional costs that may be occasioned by such extension of time. Provided that the landlord or person levying the distress may, at the written request or with the written consent of the tenant, or such owner as aforesaid, sell the goods and chattels distrained or part of them at any time before the expiration of such extended period as aforesaid. Extension replevy at request of of time to tenant. (1) After distress has been made, the goods distrained must Procedure be impounded. An inventory should be made, and notice in after the levying of writing given to the tenant of the fact of the distress having been made, and of the time when the rent and charges must be tress. 88 51, 52, 53, 54. Bailiffs to be ap county court judges. paid, or the goods replevied: Wilson v. Nightingale (a). A period 52. From and after the commencement of this Act pointed by no person shall act as a bailiff to levy any distress on any holding to which this Act applies unless he shall be authorised to act as a bailiff by a certificate in writing under the hand of the judge of a county court; and every county court judge shall, on or before the thirty-first day of December one thousand eight hundred and eighty-three, and afterwards from time to time as occasion shall require, appoint a competent number of fit and proper persons to act as such bailiffs as aforesaid. If any person so appointed shall be proved to the satisfaction of the said judge to have been guilty of any extortion or other misconduct in the execution of his duty as a bailiff, he shall be liable to have his appointment summarily cancelled by the said judge. Commencement of Act. Holdings to which Act applies. PART III. General Provisions. 53. This Act shall come into force on the first day of January, one thousand eight hundred and eighty-four, which day is in this Act referred to as the commencement of this Act. 54. Nothing in this Act shall apply to a holding that is not either wholly agricultural or wholly pastoral, or in part agricultural, and as to the residue pastoral, or in whole or in part cultivated as a market garden,1 or to any holding let to the tenant during his continuance in any office, appointment, or employment held under the landlord. (1) The words of this section will not include garden ground other than market gardens. It is presumed that a "holding" (a) 8 Q. B. 1034. |