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levy and pay to the plaintiff, as well the money so paid for rat, at the execution money.
Sect. 8. "Provided always, that nothing in the Act contained shall be construed to extend or hinder or prejudice her [his] Majesty, her [his] heirs or successors, in the levying, recovering or seizing any debts, fines, penalties, or forfeitures due or payable to her [his] Majesty, &c. but that it shall and may be lawful for her [his] Majesty, &c. to levy, recover, and seize such debts, C. in the same manneras if the Act had never been made."
This statute shall have a liberal construction: and the words "party at whose suit the execution is sued out," &c. shall be construed to mean either the plaintiff or defendant, whose judgment and execution it is (a).
The action lies by an executor or administrator against the bailiff of a liberty for executing a fieri facias, and removing the goods off the premises before the landlord was paid a year's rent: for the testator or intestate had an interest for which his executor or administrator may bring an action (6).
But, where the goods were taken and the money levied before administration taken out, it was held, that as execution was executed, that is to say, as the goods were actually sold, the administrator tame too late. Powis, J. was however of opinion, it seems, that the administration should have relation to the time of the death of the interstate, because, by the ecclesiastical law, it is not to be granted till within fourteen days of an intestate's death : but the rest of the Court denied this proposition; for relations, which are but fictions in lw> shall not, they said, devest any right vested in a stranger mtm between the intestate's death and the administration. The statute, it is true, was made for the benefit of landlords, and to prevent the tenant's setting up a sham execution to defeat him of the rent. He has still the same remedy that he had before, and if he will have the additional remedy, he must make himself capable of it, which the administrator here could not. He could not demand the rent, it not being certain that he would be administrator, for the ordinary might refuse, and the sheriff is not obliged to wait and see if any one comes and demands the rent. He cannot take notice what appears there are; but if the landlord comes and acquaints him with j, then, and not till then, is he obliged to see the year's rent satisfied before removal of the goods. If it should be otherwise, it would be in the power of him that is entitled to the administration to defeat the plaintiff of his execution ; for suppose he never takes administration, must the execution stand still? If the landlord himself had not
(a) Marriott v. Lister, % WUs. 141. I (*) Palgrave v. Windham I Sir. IO,
I Chace r. Chace. Fort, #9-40.
demanded before removal, he had been too late: here was no landlord at all, so that there could be no demand, and it is now too late to ask it (a).
Therefore notice to the sheriff is necessary in order to subject him to an action for removing the goods before a year's rent be paid (a); for neither a plaintiff nor defendant has any right to go upon the premises, and the law gives the entry to the sheriff only by virtue of the execution; but after he has notice of rent being due to the landlord, he cannot remove the goods before he has satisfied the landlord one year's rent. And if he receive notice after the removal, but before the sale, and semble at any time whilst the proceeds are in his hands, it is sufficient (J).
The landlord shall have the like benefit of distress for one year's rent as if there had been no execution at all: unless the rent be paid, the sheriff must quit, and if he do not quit, a special action on the case lies against him after notice of the rent due (c).—The want of alleging notice, however, is helped by the verdict (a).
The sheriff will also be liable, if with knowledge that there is rent due to the landlord, he proceed to sell without retaining a year's rent, although no specific notice has been given to him by the landlord (d).
The landlord's rent must be paid without any deduction; the sheriff therefore cannot claim poundage of him (e).
The remedy, as before observed, is for one year's rent and no more. Therefore, where there are two executions, the landlord cannot have a year's rent on each: for the intent of the Act was only to continue a lien as to one year, and to punish him for his laches, if he let more run in arrear (f).
The landlord can only claim the rent due at the time of taking the goods, and not that which accrues after the taking and during the continuance of the plaintiff in possession (g).
If the goods seized be not sold or removed by the sheriff, so as to transfer the property therein, but the defendant pays the debt and costs, the landlord, though he has given notice and demanded the rent, is not entitled in such case.
A bill of sale was,made by the sheriff, and it was held to be a removal of the goods taken by a writ offieri facias (h).
If an extent come in, the landlord cannot claim his rent, although a distress be taken the day before.—So, on extent or an outlawry, although he had distrained three days previous to the entry, and mo
tion be made to be paid under the statute; but this is denied. If a distress be taken October 29, and an extent dated November 4, and corn, &c. seized, the landlord cannot have his rent, for no property was devested by the distress, and they were in the landlord's hands by way of pledge; but an attachment was refused, although it was a contempt to oppose the extent (a).
An immediate extent against the king's debtor tested after a distress taken for rent justly due to the landlord, with notice to the tenant being the king's debtor, and appraisement of the goods and chattels, but before sale, shall prevail against the distress (b).
A distinction has been taken between proceedings at the suit and for the benefit of the crown, and an outlawry in a civil suit (c): and in the latter instance it has been ruled that "the landlord ought to be satisfied a year's rent, because capias utlagatum at the suit of the party is to be considered only as a private execution;" but if the outlawry be reversed, it would be otherwise (d).
A commission of bankrupt is not considered as an execution quoad hoc: therefore, as a landlord may on the one hand distrain for his whole rent after assignment or sale by the assignees, if the goods be not removed, so on the other hand, if he suffer the assignees to sell off the goods, he is not entitled to his rent, but must come in pro rata with the other creditors under the commission (e).
The ground landlord of a house, in which an under-lessee dwelt, against whom an execution was sued out, is not within the statute which extends only to the immediate landlord (f).
In an action against the sheriff for taking goods without leaving a year's rent, the declaration need not state all the particulars of the demise: but if it do, and they are not proved as stated, there shall be a nonsuit (g).
The landlord is not always driven to this action for his remedy, for there is a shorter way, by motion to the Court, that he may have restitution to the amount of the goods the sheriff has sold; as in the principal case, in which the bailiff became a wrong-doer immediately after he had notice of rent being due to the landlord (h).
Instead of bringing an action against the sheriff, &c. when the goods are sold after notice, the best way for the landlord is to move the Court that he may have restitution to the amount of the goods which the sheriff has sold, if they amount to less than a year's rent, or if they amount to more, then to have so much as will satisfy a year's rent (a).
(a) Imp. Sheriff. 170, fcc Bum's Just, tit. Distress. xvii.
(i) Rex v. Cotton. Park. R. 11*. S. C » Ver. 288.
(e) Imp. Sheriff. 171,
(d) St. John's College v. Mureott. 7 T. R.
(f') Ex-parte Plummer. 1 Atk. 101-1.
On motion to have rent paid out of the money levied, it appeared that the sheriff's warrant on the execution, after it was sealed, had been altered, and a new bailiff's name inserted. Per Cur. The warrant being altered, no goods are taken in execution thereby. Let the bailiff and attorney, privy to the alteration, shew cause why an attachment should not issue against them (b).
Section III. The Landlord's Remedy on the Statute 11 Geo. 2. c. 19. touching Goods fraudulently carried off the Premises.
The statute n G. 2. c 19. s. 1. enacts, that "In case any tenant or tenants, lessee or lessees, for life or lives, term of years, at will, sufferance, or otherwise, of any messuages, lands, tenements, or hereditaments, upon the demise or holding whereof any rent is reserved, shall fraudulently or clandestinely convey away or carry off or from such premises, his, her, or their goods or chattels, to prevent the landlord or lessor, landlords or lessors, from distraining the same for arrears of rent so reserved, it shall be lawful to or for every landlord or lessor, landlords or lessors, or any person or persons by him, her, or them for that purpose lawfully impowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels, to take and seize such goods and chattels wherever the same shall be found, as a distress for the said arrears of rent; and the same to sell or otherwise dispose of, in such manner as if the said goods and chattels had actually been distrained by such lessor or landlord, lessors or landlords, in and upon such premises for such arrears of rent."
Sect. 2. "Provided always, that no landlord or lessor, or other person entitled to such arrears of rent, shall take or seize any such goods or chattels for the same which shall be sold bona fide, and for a valuable consideration, before such seizure made, to any person or persons not privy to such fraud as aforesaid."
By sect. 3. "To deter tenants from such fraudulent conveying away their goods and chattels, and others from wilfully aiding or assisting therein, or concealing the same, it is enacted, that if any per
(a) 1 Sell. P«ct. 570. (4) Htnn v. C»jk11. Barn. 199.
son or persons shall wilfully and knowingly aid and assist any such tenant or lessee in such fraudulent conveying away or carrying off of any part of his or her goods or chattels, or in concealing the same, all and every person and persons so offending shall forfeit to the landlord or landlords, lessor or lessors, from whose estate such goods and chattels were fraudulently carried off as aforesaid, double the value of the goods by him, her, or them respectively carried off or concealed as aforesaid; to be recovered by action of debt in any of his Majesty's Courts of Record at Westminster, or in the Courts of Session in the counties palatine of Chester, Lancaster, or Durham, respectively, or in the Courts of Grand Sessions in Wales, wherein no essoign, protection or wager of law shall be allowed, nor more than one imparlance."
Sect. 4. "Provided always, that where the goods and chattels so fraudulently carried off or concealed shall not exceed the value of 50/. it shall be lawful for the landlord or landlords, from whose estate such goods and chattels were removed, his, her, or their bailiff, servant or agent, in his, her, or their behalf, to exhibit a complaint in writing against such offender or offenders, before two or more justices of the peace of the same county, riding, or division of such county, residing near the place whence such goods and chattels were removed, or near the place where the same were found, not being interested in the lands or tenements whence such goods were removed; who may summon the parties concerned, examine the fact, and all proper witnesses upon oath, or if any such witness be one of the people called Quakers, upon affirmation required by law; and in a summary way to determine, whether such person or persons be guilty of the offence with which he or they are charged ; and to inquire in like manner of the value of the goods and chattels by him, her, or them respectively so fraudulently carried off or concealed as aforesaid; and upon full proof of the offence, by order under their hands and seals, the said justices may and shall adjudge the offender or offenders to pay double the value of the said goods and chattels to such landlord or landlords, his, her, or their bailiff, servant, or agent, at such time as such justices shall appoint: and in case the offender or offenders, having notice of such order, shall refuse or neglect so to do, may and shall, by warrant under their hands and seals, levy the same by distress and sale of the goods and chattels of the offender or offenders, and for want of such distress, may commit the offender or offenders to the house of correction, there to be kept to hard labour, without bail or mainprize, for the space of six months, unless the money so ordered to be paid as aforesaid shall be sooner satisfied."
Sect. 5. "Provided always, that it shall be lawful for any person who thinks himself aggrieved by such order of the said two justices,