1843. RISELEY v. RYLE. Exch. of Pleas, be first paid. That may well be translated as directing that the sheriff shall pay the rent to the landlord before the removal of the goods, or else shall be liable for damages.] In Wintle v. Freeman (a), Patteson, J., remarks that "it is singular that an action should be brought against the sheriff for a false return of nulla bona where rent has absorbed the levy, because the statute of Anne enacts in substance that, on seizure and notice of rent being due, the person suing out the writ shall pay the landlord all the rent due to him, and the sheriff is then to levy both the rent and the execution money." [Lord Abinger, C. B.-The execution creditor has nothing to do with the seizure: the sheriff is the person who is prohibited from removing the goods until the rent is paid.] Money had and received will not lie against the sheriff after the sale of the goods, although it will against the execution creditor. In Ryan v. Daly (b), the Court of Exchequer in Ireland held expressly that debt lies on the stat. 9 Anne, c. 8 (the corresponding Irish act) by a landlord against the plaintiff in a civil bill decree, for taking in execution and removing goods off the demised premises, without satisfying an arrear of rent then due. There ought at all events to be an allegation of notice to the execution creditor. [Parke, B.—Express notice to the sheriff has been held not to be necessary; it is sufficient if he sells without retaining the rent, with knowledge that it is due: Andrews v. Dixon (c). Construing the act as it has hitherto been construed, it means, that the sheriff is not to remove the goods unless the rent has first been paid by somebody; if he does, he is liable to an action at the suit of the landlord, for whose benefit the act of Parliament was made.] But further, the action does not lie for the removal; the act forbidden is the taking under the circumstances men (a) 11 Ad. & E. 593; 1 G. & D. 93. (b) Jones's Reports, (Irish), vol. 2, p. 299. (c) 3 B. & Ald. 645. 1843. RISELEY tioned in the statute. [Parke, B.-It is clear the statute Exch. of Pleas, does not mean the original taking, but that there shall not be a substantial taking for the satisfaction of the debt, that is, by the removal and sale of the goods, without payment of the rent.] Lastly, it was alleged in Ryan v. Daly, that the goods taken were by law chargeable with a distress for rent; there is no such allegation here. [Parke, B.-The words of the statute are "no goods or chattels whatsoever."] That must mean such as are distrainable. It may be said all goods on the premises are primâ facie distrainable, and therefore that the defendant should state that the particular goods were not so; but he cannot do so, because there is no allegation in the declaration to which such a traverse can be applied. Lord ABINGER, C. B.-The rule will go on the first point only. With respect to the other, we think there should be no rule, notwithstanding the dicta thrown out in the case of Ryan v. Daly. We do not mean, however, to say anything against the authority of that case, which decides no more than that an action of debt is maintainable against the execution plaintiff. The statute has had a construction put upon it by the cases and the uniform practice, and we should be unwilling to throw a doubt upon it by granting a rule in this case. PARKE, B.-The observation of my brother Patteson, in Wintle v. Freeman, amounts to no more than a very slight intimation of doubt. The constant practice, since the case of Palgrave v. Windham, has been to bring the action against the sheriff. The true construction of the statute, or at least one that it will well bear, is, that a duty is cast by it upon the sheriff to take care that the goods are not removed, he having notice that rent is due, until the rent v. RYLE. Exch. of Pleas, has been paid. The words of the statute are no goods or 1843. RISELEY v. RYLE. chattels whatsoever," and I am not aware that it has ever been decided to be confined to goods and chattels which are distrainable in point of law, though it has been decided that it must appear that a rent certain was due. A rule was accordingly granted on the first point only; against which Evans and Welsby now shewed cause.-The issue in this case on the first plea is merely whether, at the time of the execution, the Knotts were tenants to the plaintiff as alleged in the declaration. It is said that it must appear to have been such a tenancy as that a power of distress existed; but nothing of the kind appears in the statute. The words of the first section are "any messuages, lands, or tenements, which are or shall be leased for life or lives, term of years, at will or otherwise;" and it is observable that the second section, which applies to the fraudulent removal of goods by the tenant, uses different words,—" any messuages, lands, or tenements, upon the demise whereof any rents are or shall be received or made payable." Now, it is conceded that, under this agreement, the Messrs. Knott became at all events tenants at will until the execution of a lease. But supposing it to be necessary, in order to bring the case within the operation of the statute, that there should appear to be a demise at a rent certain, there was in this case evidence to go to the jury that they had become tenants from year to year, on the terms of the intended lease. Here they had come in under the agreement, and had actually occupied under it for nearly the whole term of 14 years for which the lease was to run: and further, they began to occupy at a period subsequent to that at which the lease was to commence, so that they may be considered as standing in a similar situation to 1843. RISELEY v. RYLE. that of a tenant who continues to occupy after the expira- Exch. of Pleas, tion of a lease. It is true no evidence was given of the actual payment of rent; but such payment is only one species of evidence of a contract to occupy as tenants from year to year: Knight v. Bennett (a), Cox v. Bent (b). In the latter case, where the plaintiff had entered on premises under an agreement for a lease, the mere admission by him of a charge of half a year's rent in an account between him and his landlord, was held sufficient to constitute him tenant from year to year. [Parke, B.-In Hegan v. Johnson (c), the principle laid down appears to be, that where, under an agreement for a lease at a certain rent, the tenant is let into possession before a lease executed, the lessor cannot during the first year distrain for rent.] It is laid down in Harrison v. Barry (d), that in this action it is not necessary to prove a year's rent due, but that it is sufficient to prove the occupation by the tenant, and it lies on the defendant to shew that the rent has been paid. Jervis and E. V. Williams, contrà.-The tenancy to which the statute applies must be a tenancy to which a right of distress is incident. If the landlord has no power of distress, there is nothing from which he has to be protected. Calvert v. Jolliffe (e) shews that this is an action for damages; but what damages can there be, if the landlord had no power of distress on the goods? But if a tenancy at will be within the statute, it must be at a rent certain. But where a party enters into occupation under a mere agreement for a lease, how is rent to be computed? He is merely subject to an action for use and occupation; Doe d. Tomes v. Chamberlain (f). All that is meant by the case of Harrison v. Barry is that the mere effluxion of (a) 3 Bing. 361; 11 Moore, 227. (b) 5 Bing. 185; 2 M. & P. 281. (c) 2 Taunt. 148. (d) 7 Price, 690. 1843. RISELEY v. RYLE. Exch. of Pleas, time primâ facie shews the rent to be due. All that can be said in this case is, that because more than a year has elapsed, there is evidence of a tenancy at a rent certain; but that is not so. In Chapman v. Towner, it is said generally, that a party who enters under an agreement for a lease is only tenant at will until he pays rent, and then becomes tenant from year to year. Mann v. Lovejoy (a) is to the same effect. In Regnart v. Porter, the tenant had occupied for nearly four years. The settlement of an account containing a claim for rent, as in Cox v. Bent, is equivalent to actual payment of it. In Hegan v. Johnson, the question arose within the first year, and all that it was necessary to decide was, that until that had elapsed, at all events, no implication of a tenancy from year to year could be made. But further, there was in this case no proof of an enjoyment commensurate with the rent which was to be reserved by the lease. That rent was to be paid not only for the occupation of the premises, but also for the use of the steam power; and there was no evidence that the latter had been enjoyed. Lord ABINGER, C. B.-I think the rule must be made absolute to enter a nonsuit. Even if the plaintiff had proved a demise at a rent certain, which is necessary to satisfy the terms of the statute, he could not be entitled to succeed, unless he shewed an enjoyment of the same subject-matter in respect of which the rent was to be reserved; because without that he would not shew that any rent was due. Where the tenant occupies under an agreement, it must appear that possession is had of the same subjectmatter which is included in the agreement, otherwise it is not a case in which the sheriff is bound to pay over the (a) Ry. & M. 355. |