to the lessor. A power of distress is incident by common law to rent reserved on a lease. exercised for lease con it has deter Except in cases coming within the Agricultural Right of disHoldings Act, 1883, or in case of the tenant's bank-tress may be ruptcy, the right of distress for rent in arrear may be six years, if exercised at any time within six years from the time tinues, and if when the rent became due or an acknowledgment in mined for six writing of the same was made to the landlord or his months afteragent(t), provided that the lease is still subsisting; and if the lease has determined, a distress may be made at any time within six calendar months from its determination, provided that the landlord's title continues and the tenant is still in possession (u). wards. landlord have The executors of a deceased landlord have the same Executors of right of distress for rent accrued in his lifetime as the same right of landlord would have had if living (x). distress. right of land The goods of a tenant cannot be taken by an execu- Preferential tion creditor without first paying to the landlord one lord over ordiyear's rent in arrear (y), but this preferential right does nary creditors. not exist (like the right of distress) after the tenancy has determined (≈). lord to seize moved. If a tenant fraudulently or clandestinely conveys Right of landaway goods in order to prevent the landlord from dis- goods fraudu training them, the landlord may at any time within lently rethirty days after such conveying away seize the goods wherever they are, and other powers are by statute given to landlords in such case (a). But this power of case(a). distraining goods fraudulently removed applies only where they would have been distrainable if they remained on the premises, and cannot be exercised if at the time of seizure the tenancy has determined (b). bankrupt, to one year's If a tenant becomes bankrupt, and the landlord after If tenant is the commencement of the bankruptcy distrains upon right of dishis goods for arrears of rent, the distress is available tress limited only for one year's rent accrued due prior to the order rent. of adjudication, but he may prove under the bankruptcy for the surplus (c). (t) 3 & 4 W. 4, c. 27, s. 42. (u) 8 Anne, c. 14, ss. 6, 7. 3 & 4 W. 4, c. 42, ss. 37, 38. (y) 8 Anne, c. 14, s. 1. (2) Cox v. Leigh, L. R. 9 Q. B.333. (a) 11 Geo. 2, c. 19, ss. 1--10. (c) 46 & 47 Vict. c. 52, s. 42. Distress for rent due from company which is being wound up, cannot be made without con sent of Court. In what cases leave will be given. In agricultural of distress year. Under the joint operation of sects. 87 and 163 of the Companies Act, 1862 (c), as interpreted by judicial decisions, a distress cannot be levied on the goods of a company which is being wound up without the leave of the Court in any case where the rent in arrear is a debt due from the company to the landlord, and proveable as such. But the rule does not apply where the landlord is a stranger to the company. Thus, if A. lets to B., and B. underlets to, or declares himself a trustee for a company, the Act does not prevent A. from distraining for rent due to him from B., or from seizing any goods of the company which may happen to be on the premises, and which are seizable by him according to the ordinary law of distress (d). Leave will be given to a landlord to distrain for rent accrued after the winding-up, in cases where the company retains possession for the convenience of the windingup, and the realization of the property to better advantage (e). In holdings to which the Agricultural Holdings Act, holdings, right 1883 (f), applies, a landlord cannot distrain for rent limited to one which became due more than one year before the making of the distress (g). Where, according to the ordinary course of dealing between the landlord and tenant, the payment of the rent has been allowed to be deferred until the expiration of a quarter or a half year after the date at which it legally became due, the rent is for this purpose to be deemed to have become due at the expiration of such quarter or half year (h). All goods found on the premises, whether belonging to the tenant or to a stranger (other than such as are specially protected by law) are distrainable for rent. What goods may be distrained. Things protected from distress. Things privileged by law are-(1) things annexed to the freehold; (2) things delivered to a person exer (c) 25 & 26 Vict. c. 89. (d) Re Lundy Granite Co., L. R. 6 Ch. 462; Re Traders' North Staffordshire Co., L. R. 19 Eq. 60; Re Carriage Co-operative Supply Association, 23 Ch. D. 154. (e) Lundy Granite Co., ubi sup.; N. Yorkshire Iron Co., 7 Ch. D. 661. (ƒ) 46 & 47 Vict. c. 61, s. 44. (g) Except in the case of a holding existing at the time of the passing of the Act, under which arrears are recoverable up to 1st January, 1885. (h) Sect. 44. cising a public trade to be carried, wrought, worked up, or managed in the way of his trade or employment; (3) things in actual use, e. g., the horse a man is riding on, or the axe in his hand. Beasts of the plough and implements of husbandry, or of a man's trade or profession, are also privileged, if there is a sufficient distress besides (i). tress Amend wearing By the Law of Distress Amendment Act, 1888 (k), Law of Disthe wearing apparel and bedding of the tenant or his ment Act family, and the tools and implements of his trade to protect the value of 51., are protected from distress, unless the apparel, &c. lease or interest of the tenant has expired, and possession of the premises has been demanded seven days before the distress. tected by Agri. Where live stock belonging to another person has Things probeen taken in by the tenant of an agricultural holding cultural Holdto be fed at a fair price, such stock cannot be dis- ings Act. trained by the landlord, where there is other sufficient distress to be found, and if no other sufficient distress can be found, there cannot be taken by distress a sum exceeding the price agreed to be paid for the feeding, or so much of it as remains unpaid, and agricultural or other machinery hired by the tenant, and live stock belonging to others, and which is on the premises for breeding purposes, cannot be distrained for rent in arrear (1). A landlord or other person levying a distress may Appraisement. sell the goods and chattels distrained without causing them to be previously appraised, unless the tenant or owner of the goods requires an appraisement; and for the purposes of sale the goods must, at the request of the tenant or owner of them, be removed to a public Sale by aucauction room or some other fit place, and there sold. The tenant or owner may, on giving security for costs, Replevy. have fifteen days within which to replevy. Distress Certified bailiff can only be levied by a bailiff certificated by a county distress. court judge (m). tion. only can levy By an Act passed in 1871, the goods of lodgers are Lodgers' () Simpson . Hartopp, Willes, 512; Smith's L. C. 187. (k) 51 Vict. c. 21, s. 4, by re ference to 9 & 10 Vict. c. 95, s. 96. goods pro distress. tected against protected against distresses for rent due to the superior landlord (n). A person who hired what was substantially the whole of the house, the superior tenant only retaining a room in the basement and some attics, has been held to be a lodger within the meaning of this Act (o). Rent may be recovered for six years by action on covenant. No apportionment of rent law. The words "yielding and paying" in a reservation of rent amount to a covenant for payment (p). Under such a covenant, or the more formal one generally inserted in leases, it is apprehended that six years' arrears of rent and no more may be recovered by action (q). According to the common law, rents reserved on a by the common lease and other rents were not apportionable; consequently if the lessor died between two rent days, the entire rent for the current year, if the lease was a continuing one, went to his heir-at-law or other the person on whom the reversion devolved; and if the lease determined on his death, the whole of the rent for that half-year was lost (r). 11 Geo. 2, c.19; 4 & 5 Will. 4, c. 22. 33 & 34 Vict. c. 35. Rents to accrue from day to day and be apportionable. perso The Acts 11 Geo. 2, c. 19, and 4 & 5 Will. 4, c. 22, were passed to remedy some of the inconveniences arising from this state of the law, but as the operation of these Acts was only partial, a more complete remedy was provided by the Act 33 & 34 Vict. c. 35, by which it is enacted as follows: 26. Sect. 2. From and after the passing of this Act all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportioned in respect of time accordingly. (n) 34 & 35 Vict. c. 79. (o) Philips v. Henson, 3 C. P. D. (p) Giles v. Hooper, Carth. 135; Bower v. Hodges, 13 C. B. 765. (9) In Paget v. Foley, 2 Bing. N. C. 679, 5 L. J. (N. S.) C. P. 258, and Strahan v. Thomas, 12 Ad. & Ell. 536, it was held that twenty years' arrears of rent might be recovered in an action of covenant under 3 & 4 W. 4, c. 42, s. 3. But it is apprehended that the last-mentioned enactment, so far as regards rent, has been repealed by implication by sect. 9 of 37 & 38 Vict. c. 57. The point must, however, be considered as doubtful, until settled by a judicial decision. (r) See 1 Swanston, 337, note, and the cases there cited. part of rent to when next have same apportioned tions. Sect. 3. The apportioned part of any such rent, annuity, Apportioned dividend, or other payment, shall be payable or recoverable be payable in the case of a continuing rent, annuity, or other such entire portion payment, when the entire portion of which such appor- becomes due. tioned part shall form part shall become due and payable, and not before, and in the case of a rent, annuity, or other such payment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not so determined, and not before. Sect. 4. All persons and their respective heirs, executors, ad- Persons to ministrators, and assigns, and also the executors, adminis- remedies for trators, and assigns respectively of persons whose interests parts as for determine with their own deaths, shall have such or the entire porsame remedies at law and in equity for recovering such apportioned parts as aforesaid, when payable (allowing proportionate parts of all such allowances) as they respectively would have had for recovering such entire portions as aforesaid if entitled thereto respectively; provided that Proviso as to persons liable to pay rents reserved out of or charged on in certain lands or other hereditaments of any tenure, and the same lands or other hereditaments shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically, but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this Act or otherwise, would have been entitled to such entire or continuing rent, and such apportioned part shall be recoverable from such heir or other person by the executors or other parties entitled under this Act to the same by action at law or suit in equity. rents reserved cases. of the Act. The above Act applies to a will made before, and Construction confirmed by a codicil made after, its passing, and (according to judicial dicta) to every will coming into operation after its passing (s). Whether it applies to an instrument made and coming into operation before its passing, is doubtful (t). It applies to a specific as (8) Hasluck v. Pedley, 19 Eq. 271; Constable v. Constable, 11 Ch. D. 681. (t) Re Cline's Estate, 18 Eq. 213. But see Jones v. Ogle, 8 Ch. 192. |