AN IMPORTANT DECISION.

Greymouth Evening Star, Volume XXXI, 14 October 1901, Page 2

AN IMPORTANT DECISION.

Illegal Distress Warrant

On Saturday morning tho Magistrate (R. S. Hawkins, Esq.) d-livered his judgment in tho case of A. G. Hughes v D. Shoedy, claim for £SO for alleged illegal distress warrant and sale of tools.

Mr Joyce appeared for the plaintiff, Mr Hannan defending. The decision was as follows :—“ Tho statement of claim aleged in effect that under warrant by the defendant a bailiff' made an “illegal distress on goods of plaintiff.” v _ That a dental chair, gasometer engine, gas cylinder, face piece and tubing and other tools of trade belonging to plaintiff were seized by tbe bailiff, and afterwards sold bj r order of the defendant, and are wholly lost to the plaintiff. That no exemption was made by defendant as provided for by the Distress Act of 1885.

The plaintiff claims £SO as damages. The evidence given by plaintiff and defendant disclosed two causes of action viz (1.) An illegal distress "on tools of trade. (2.) An irregularity of distress in the sale of the goods at other than the best price. The statement of claim alleges this sale, but not the irregularity in sale. The distinction between illegality and irregularity is one of some importance. In the first case the seizure of tools of trade without allowing the sum of £25 as provided by the Distress Amendment Act, 1885, being a wrongful or an illegal distress the measure of damages is the full value of the goods, and there is *no deduction for rent in arrears. The landlord may counter-claim, but in this action he has not done so. Further, the landlord makes himself a trespasser ad initio qaa the privileged goods (Harvey v Poeock M. & W 11 740) and the proceeding as to such goods is void ab initio so that the tenant can maintain power against tho purchaser of goods. And see Harding v. Hall 14 L.T, 410 and King v England 4 V. and S. 782, Tn the second case the sale at other than the best price, see 2 W. & M. ses 1 C 5 S 2, docs not constitute a wrongful or illegal distress, but is an irregularity, and a sale at under value gives a distinct cau-e o£ action —Poynter v. Buckley 5. C. and P. 512. The landlord cannot himself purchase—King v. England, 4. B. and S. 782—-and the action lies not only against the bailiff, but also against the landlord if he ratifies— Gauntlet v. King 3. C.B.S, 59. In this case the plaintiff must prove special damage and he can recover tho real value of the goods less the rent due and expenses. I have thus set out the difference in the two causes of action, because it seems to me in the first case that if a verdict is found for the plaintiff, a certain injustice will be done to the defendant. Whereas under the second cause of action full justice would be done to both parties. Then it does not appear to me that I can hold the statement of claim to cover both causes of action, which must have been stated ft as alternative by section 68 of the Magistrates’ Court Act. If a plaintiff claims to recover special damage, the statement of claim shall state so, and shall show the nature thereof.

In the Higli Court of Justice in England the writ may be endorsed. “ The plaintiff’s claim is for damages for improperly distraining,” and the defendant may plead “not guilty” by statute, which puts in the whole issue, but I do not think this can be done in this Court. And though the addition of an alternative course of action cognate, to the first, but not precisely defined in the statement of claim, may uot come strictly within the prohibition of section 98 of the Act, I should hesitate to order it unless with the consent of plaintiff and defendant. With this suggestion, I proceed to deal with the first cause of notion, clearly shown in the statement of claim adding such findings as may enable the two parties to better deal with ray suggestion.

‘ I find that the defendant through his bailiff in order to obtain possession of the sum of £l9 12s 6d rent due, did seize and dispose of the following property of plaintiff: —A dental chair, dental engine, gasometer, gas cylinder and some small articles which were practically valueless. He seized besides furniture to the value of £4l2s; that there was at the time of entry into the premises and seizure no other property of plaintiff’s ; that outside the furniture the goods seized were tools of the plaintiff’s trade. That plaintiff gave up complete possession of the premises to the defendant’s agent, the bailiff, on demand. A charge was made of fraudulent removal of plaintiff’s goods by defendant but there was no proof of such removal. I further find that the value of the, tools seized was at the time of the seizure £SO. That they were purchased new in February of 1901. That the chair cost £22; the gasometer £l3 7s6d; the gas engine £lO, the gas cylinder £4 12s 6d and that with the attachments and fittings complete in which state they were seized and sold, the whole cost £59 9s.

I find that immediately before the sale the defendant aecompaniedby a personal friend, a cattle dealer, who he described as a general speculator ready to buy anything where a profit was to be hoped for, went to the auction room and directed the auctioneer to put the tools up in one lot. That befoie-the actual sale a honaflde purchaser informed the defendant that he desired to buy one of the tools, but from what he heard nass between the defendant and his friend lie concluded it was no use to bid and defendant then sttgsested that he might deal with the purchaser after the sale.

That there was another bona fi <e purchaser within the room for another of the tools at the sum of £9, but he did not bid as the whole were put up in one lot.

That defendant’s friend bid for the io£ as put up. That there uas no other bidders and he was declared purchaser at the sum of £ls. That the price realised was wholly inadequate for the value and that had the goods been offered seperately the £ls would have almost certainly been realised by the sale of two only of them. As to the question whether the plain-' tiff by Ills conduct waived illegality or irregularity without quoting any other authorities the case of Willoughby v Backhouse 2 vol. 84, is an absolute authority that there was no waiver. There was another question raised viz :—As to the value of plaintiff’s goods in another house and his wearing apparel in use. It was not proved that he owned any other goods beyond the clothes he stood up in and a few articles of body linen. I hold that the privilege of £25 relates to goods of the tenant on the premises in respect of which the distress is made or fraudently removed therefrom. Leaving the judgment incomplete at this stage I gave the parties time to consider my suggestions in order to end litigation.” On the Court resuming on Saturday, Mr. Joyce, for the plaintiff, intimated that no arrangement had been come to. The Magistrate therefore gave judgment for plaintiff for £SO damages with £8 4s costs.