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Decisions of the Superior Courts of New South Wales, 1788-1899

Barrett v. Thurlow (1842) NSW Sel Cas (Dowling) 711; [1842] NSWSupC 64

distress for rent

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, February 1842

Source: Dowling, Select Cases, Vol. 6, S.R.N.S.W. 2/3464, p. 243

Where distress was levied by the defendant; held he must shew that he was justified on the day he levied distress.*

Trespass for taking, seizing and converting goods and chattels of the plaintiff.

The declaration was filed on 14th December 1841. The alleged trespass was single and laid on the 25th February 1841. The defendant pleaded 1st not guilty and 2nd that two years before and at the time when White and Ram held and enjoyed land at New Town as tenants to Coulson and McDonald by demise at a rent of £40 per annum, the first six months to be paid in advance and afterwards each quarter in advance to commence 1st July 1838 that Coulson and McDonald were seised in fee as joint tenants: that on 1st July 1838 Coulson died leaving McDonald sole owner; that on 23rd July 1840 McDonald made his will and devised the premises to the defendant and C.L. McDonald in trust, and appointed defendant and C.L. McDonald his executors; that on the same 23rd July 1840 McDonald died, that defendant and C.L. McDonald proved the will; that on 1st July 1841 two years rent being in arrear, wherefore defendant with consent of C.L. McDonald, distrained on the premises. Replication to this plea, that the lands at the time when &c. were not in the possession of White and Ram. Demurrer to the replication that it neither traverses nor confesses or avoids any material matter contained in the plea and joinder in demurrer.

In support of the demurrer it was contended that the replication should confess and avoid the matter of the defendant's plea, by shewing that he was not in possession at the time of the distress, and that if he was not, then that he should shew another was, Hool v. Bell (1696) [ Hool v. Bell (1696) 1 Raym. Ld. 172, 91 E.R. 1011] was cited. It was insisted that the plaintiff's replication was founded upon a misapprehension of the law, for although the statute 32 Hen. 8 c. 37 (1540), s. 1 did not give executors a power of distress generally, yet by the statute 3 & 4 Wm 4 c. 42 (1833), s. 37, which had been adopted by the local legislature in an Act "for the amendment of the law", 5 Vic. No. 9 (1841), s. 27, such power of distress was given during the contrivance of the possession of the tenant from whom the arrears of rent became due. And in as much as the plaintiff had not shewn by his replication that he was not such tenant in possession, the plea was an answer to the action.

Contra it was insisted that the local ordinance was inapplicable, in as much as the distress was before the Act in question passed. The distress was on the 25 February 1841 and the local ordinance did not pass until the 9th October 1841, so that if the distress could be justified it must be by the statute 32 Hen. 8 c. 37, s. 1 which, however, only authorized the distress by personal representatives "so long as the lands continue in the seisin or possession of the tenant in demesne, who ought to have paid the rent or fee from, or of some person claiming under him by purchase, gift or descent". But even supposing the local ordinance applicable, the plea did not shew "a continuance of the possession of the tenant from whom the arrears of rent became due". It did not shew that White and Ram, the original tenants, were in possession at the time of the distress, nor did it shew that the plaintiff, Barrett, was a person claiming under them. The replication therefore raised the material issue of whether White and Ram were in possession at the time of the distress; for if they were not, then the distress was not warranted by the statute. In reply it was insisted that the Court could not take notice of the day laid in this action as the date of the trespass. To make that date material it must be by new assignment and therefore the provisions of the ordinance would be applicable. The distress was prima facie lawful and it lay upon the plaintiff to shew that it was unlawful or to shew how he was in possession and not liable to be distrained upon.

Dowling C.J. Whether the local ordinance 5 Vic. No. 9, s. 27, under which the defendant seeks to justify the trespass, applies to the present case depends upon the question whether the day laid in the declaration is material. It appears to me that the defendant has made it so by his pleading and consequently that the local ordinance could not furnish him with any defence even admitting the plea to have brought the case within the 27th section. He has followed the day laid in the declaration without a traverse and he seeks to justify the trespass on that particular day. He has in fact made it material by alleging that on the particular day when the distress was made White and Ram held and enjoyed the land. It could only be in respect of the continuing possession by White and Ram that he, as executor, could have a right to distrain under the 5 Vic. No. 9, s. 27.

If the defendant had justified on a different day from that laid, then the plaintiff would have been bound to new assign. Here he has made the day material and consequently he must shew that on that day he was justified. But one day is stated in the declaration which is before the local ordinance was passed, and if the defendant meant to avail himself of the new law, he should by apt averment have brought the case within its operation. In proof the plaintiff would not be tied down to the particular day, but here the plea has made the day material as matter of record. The plaintiff takes issue on the possession of White and Ram on that day. Then comes the question whether the distress would be justified under the statute 32 Hen. 8 c. 37 without shewing that White and Ram were continually in possession, or that Barrett was a person claiming under them. He has not done so and therefore a material issue is raised.

The authority cited, for maintaining that it lay upon the plaintiff to confess and avoid the plea by shewing that he was not in possession and not liable to be distrained upon, does not appear to me to relieve the defendant from averring affirmation in his plea that as against White and Ram and Barrett the plaintiff he had a right of distress. That case, Hool v. Bell , however, turned upon a mere point of pleading and arose upon the 4th section of the statute and the continuing possession of the tenant was immaterial.

There is a material distinction between the 1st and the 4th section. The latter gives a power of distress generally and omits the words "so long as the lands continue in the possession" which are contained in the first section. Here the plea pleaded does not shew within the words of the 1st section of the statute, that the land "continued in the seisin or possession of the tenants in desmesne", nor does it even shew that the testator, in whose right the defendant distrained, as executor, was seised of such an estate as would entitle him to distrain. There are authorities to shew that the statute 32 Hen. 8 c. 37 does not apply to cases where the testator was only entitled to a reversion arising out of a term for years, Prescott v. Boucher (1832) [Prescott v. Boucher (1832) 3 B. & A. 849, 110 E.R. 312]. There is nothing here to shew but that the testator had only a term for years and on that ground independently of the other, it seems to me that the plea could not be sustained. This point was not however pressed in argument. But on the other ground I think the plaintiff must have judgment on demurrer. That ground is that the defendant has not brought himself within the statute under which he seeks to justify the distress, namely, by averring a "continuing possession of the testators tenants at the time of the distress".

Burton and Stephen JJ concurred.

Judgment for the plaintiff.

Published by the Division of Law, Macquarie University