ANCIENT LAW INVOKED

Sun (Auckland), Volume IV, Issue 1061, 27 August 1930, Page 1

ANCIENT LAW INVOKED

Interesting Civil Suit TREBLE DAMAGES SOUGHT Pound-Breach Alleged rS law of Pound-breach, of 1689, was recalled in an interesting- lawsuit heard in the Supreme Court today, when a landlord sought to recover treble damages he claimed to have suffered by the alleged action of a bill of sale holder in breaking a pound on goods seized for arrears of rent. The hearing was before Mr. Justice Herdman.

H*HE action was brought by Arthur ** Cleave, au Auckland journalist, jgalnst the Commercial Loan and finance Company, Ltd. It was claimed that, following the impounding by Cleave of certain chattels for arrears of rent, the defendant firm had wrongfully entered and seized the goods, some of which were not included in its bill of sale. As a result of the defendant firm’s refusal to surrender the chattels, Cleave claimed that he had suffered £lls damages, and therefore sought to recover treble this sum for damages. Mr. Johnstone and Mr. Black appeared for the plaintiff and Mr. Goldstine for the defendant firm. The defence was that the defendant arm had acted within its rights because there was no bailiff in possession at the time the defendant seized the chattels. According to Mr. Johnstone, Cleave, who was the lessee of the basement of Chancery Chambers, fitted up this portion of the building as Turkish baths, which on August 7 last year he leased to an Indian, Narenji Khuslial Naik. for 10 years at the rate of £5 5s weekly for the first year. However, not many people patronised the baths, and by February this year, Naik owed about £llO in rent. At the time Naik entered into the Turkish bath business, he borrowed certain money from the Commercial Loan and Finance Company, who took a bill of sale over die chattels, including the plant and fttings. On February 10, a meeting of Naik's creditors was held at the Turkish baths and they decided to allow the Indian to carry on under supervision and to liquidate his debts as best he could. The defendant company, however, did not assent or object to this procedure. Suspecting what would happen, however, Cleave immediately decided to take the ancient remedy of distress. SEIZED GOODS

With the bailiff and his solicitor, Cleave called at the Turkish baths, notified the tenant, seized the goods, and made an inventory of them. Cleave's agent remained in possession for two hours, and then left, leaving Naik on the premises. The Indian slept until 6.30 the following morning, when he was awakened by a loud banging on the door. On opening it, Naik was confronted by Sly. the defendant company’s manager, who, despite the Indian's protests that the goods had already been impounded, seized the chattels, removing them to a section on the opposite side of the road. The defendant firm also •ook some goods -which were not included in its bill of sale, some of however, had since been returned.

Counsel claimed that the lessees had had the right under the law for centuries to distrain for rent, and, where legal procedure was adopted, aa in this instance, the bill of sale holder had no claim. GOODS SELECTED

How he, accompanied by his solicitor, agent, and another creditor, visited the Turkish baths on the afternoon of February 11, was described by the plaintiff, Arthur Cleave. The tenant, Naik, was informed that the pbject of the visit was to distrain on his goods for arrears of rent amounting to more than £ll3. When later, ■hulk's solicitors arrived on the scene, they selected the goods for impounding, leaving about £SO worth of tools of trade to Naik to retain. Cross-examined, Cleave refuted the luggestlon that Naik had been allowed to rematyi on the premises rent iree for some months. When he arrived on the scene next morning and saw defendant's agents removing the goods from the baths, things were fairly heated, and he threatened to stop forcibly the removal of the goods. A policeman was then summoned. He agreed that he had urged Sly to “be a sport,” an< l return the baths to Naik. Naik, in evidence, said that he owed Cleave £IOO in rent when the meeting in ™ creditors was held on February J®- After an inventory was made by the bailiff, on behalf of Cleave, the bailiff locked the premises, instructing witness not to open the door until he returned. Between six and seven o clock next morning, however, wit"m 8 was aw akened by the noise of shifting furniture. He went to the uoor to find Sly, who announced that

he was taking the goods. Sly pinned his warrant on the wall. Under cross-examination, Naik asserted that Cleave had allowed him £IOO rent-free, but he had to pay this sum to a plumber named Charles Osborne, for plumbing work performed on the premises. He paid about £22 under this arrangement to Osborne. The bailiff made an Inventory, handing one list to witness, who was also informed that £SO worth of goods were to be left to him. The witness agreed that after Cleave had distrained on the goods, he ordered a carrier to remove some of his kitchen utensils, but he refuted the suggestion that the caretaker had stopped him from removing a couch from the premises. James Arthur Campbell, plumber, who acted as bailiff, described the action he. took to impound the goods. In cross-examination, witness stated that at Cleave's suggestion he had Informed Sly that he (witness) was on the premises at the time the goods were seized by the defendant’s firm. Both he and Cleave knew this statement was untrue.

Alan Smyth, solicitor to Naik, gave evidence of the production by Naik of the distress warrant issued by Cleave. (Proceeding.)