THE LAW OF DISTRAINT

Ashburton Guardian, Volume VII, Issue 1694, 25 October 1887, Page 3

THE LAW OF DISTRAINT

In the courae of an exhaustive judgment delivered on Wednesday, m the ■ase of FinUyson and another v Reid and others (heard at Oatnarn), Mr Justice Williams gave a very important ruling j upon tho law of dlatraint whioh consider--1 ally alters existing ideas upon the sub* f jeot. The Property Law Consolidation Act, 1883, provides that m every leas* there shall be implied ths powor m the lessor to levy distress whenever the rent Ih 21 days m arrear. Id the ease m question It was contended that, notwithstanding his statutory right, th» common law right to distrain immediately the rent became doa still existed. This contention waß based on a dictum of Ooke on Lyttelton. Bis Honor, after disouaslng the legal point at considerable length, said that m the case of statutes, ths whole scope of the statute could be looked at to see whether an enaotment m torms affirmative did not imply a negative and take away existing common law rights. The provision that the lessor might distrain whenever" the rant should be m arrear for 21 days was meaningless and delusive if the common hw right of immediate distress continued to exist ; and if it was reasonable, looking at the whole of the statute, to apply the maxim Expressio minus est exclusio alttrius t to give these words a meaning, then that maxim ought to be applied. He was of opinion that the effect of the section referred to was to modify the common law right of distress for rent where the rent was payable under a lease, and to make the right exotoisable only afcer 21 day's defant.— " Otago Dally Times,"