1862.

TURNER

V.

BARNES.

and the death of the tenant is an ordinary determination of a tenancy at will, and there is no exception of such in the proviso. Then Braithwaite v. Cooksey (a) is an authority that the possession of the tenant from whom the arrears became due need not be personal, but may be by a representative of the tenant. [Blackburn J. Here G. W. Turner being tenant in fee of the house, his administratrix would have no more estate in it than a stranger would have; the right to take possession was therefore in the heir, and not in the plaintiff. The grant of letters of administration has the effect of vesting leasehold property in the administrator by relation to the time of the death of the intestate, so as to enable him to bring actions in respect of that property for all matters affecting the same subsequent to the death of the intestate; Lessee of Patten v. Patten (b), cited in 2 Selw. N. P. 698, 12th ed. [Crompton J. cited 1 Williams' Executors, 558, note (p), 5th ed., referring to Rex v. Horsley, 8 East, 410, per Lord Ellenborough, and Selw. N. P. 717, 6th ed.] In 1 Williams' Executors, 557, 5th ed. it is said, "An administrator may have an action of trespass or trover for the goods of the intestate taken by one before the letters granted unto him; otherwise there would be no remedy for this wrong doing." In Foster v. Bates (c), where goods had been sold after the death of the intestate, and before the grant of letters of administration, avowedly on account of the estate of the intestate, by one who had been his agent, it was held that the administrator might ratify the sale and recover the price from the vendee in assumpsit for goods sold and delivered. The rights and (b) Alcock & Nap. 493.

(a) 1 H. Bl. 467.

(c) 12 M. & W. 226.

liabilities of an administrator ought to be correlative. [Blackburn J. Administration may be taken out by creditors and others; it would carry the doctrine of relation very far to say that in such cases there might be a distress upon premises in the occupation of an administrator many years after the death of the intestate.]

J. B. Karslake was not called upon to reply.

CROMPTON J. Two points have been ably pressed for the defendant: first, that we are bound by the case of Walker v. Giles (a); secondly, that the present case is within the decision in Braithwaite v. Cooksey (b).

As to the first point, I have my own opinion of the case of Walker v. Giles (a); but it is the general rule to follow the decision of a Court of co-ordinate jurisdiction, and therefore I should not like to overrule that case, which was decided by great Judges, without further consideration; and I admit that there is something like incongruity in the two clauses of the deed. I have, however, so strong an opinion on the second point in favour of the plaintiff, that I will not discuss the first point further than to say that I adhere to the great doubts which we expressed on a similar deed in Brown v. The Metropolitan and General Counties Life Assurance Society (c). If parties come to an agreement that one shall be tenant to the other, and the nature of the tenancy is expressed, and a power of distress given, it would seem that, however the agreement may operate in a particular case,-whether as a

1862.

TURNER

V.

BARNES.

(a) 6 C. B. 662.

(b) 1 H. Bl. 465.

(c) 1 E. & E. 832.

1862.

TURNER

V.

BARNES.

limitation of the use under the Statute of Uses, as I rather think it does, or whether it can be supported as giving the party occupation as tenant under the terms of the deed, or as a redemise,-in any view of the case it would be a tenancy at will; and then it is expressly within the authority of Walker v. Giles (a), where such a tenancy was held to be incompatible with the object of the deed.

As to the other point,-assuming Turner to have been tenant at will of the defendants, I am of opinion that the plaintiff is entitled to judgment on the ground that the case is not within the provisions of stat. 8 Ann. c. 14. At common law a landlord could only distrain when there was a tenancy; there could be no avowry except on a tenancy. To remedy that, stat. 8 Ann. c. 14. s. 6. was enacted; but that enactment is carefully accompanied with a proviso in sect. 7, that the distress shall be made while the tenant from whom the rent accrued due remains in possession. It is a hard thing, as my brother Blackburn pointed out, that a stranger's goods should be taken for such arrears of rent, and it is not likely that they would be upon the premises as long as the tenant remained in possession. Therefore it is important that the right of distress should be confined to the continuance of the possession of the tenant from whom the arrears became due. The enactment is, that "from and after the said first day of May, 1710, it shall and may be lawful, for any person or persons, having any rent in arrear or due upon any lease for life or lives, or for years, or at will, ended or determined, to distrain for such arrears, after the determination of the said respective leases, in the same manner as they might (a) 6 C. B. 662.

have done, if such lease or leases had not been ended or determined. Now this case would be within those words, because on the death of Turner the lease was determined. Then there is a proviso in the next section that such distress must be made "within the space of six calendar months after the determination of such lease, and during the continuance of such landlord's title or interest, and during the possession of the tenant from whom such arrears became due." It is impossible to say, without some authority to that effect, that, the tenant being dead, the possession of the person from whom the arrears accrued due is continued in the present case.

In Braithwaite v. Cooksey (a) indeed the Court allowed a distress to be good during the possession of the administratrix; but they do not give any reasons for their judgment, and it seems to have been a peculiar case,the tenancy was not determined by the death of the lessee, but continued after his death, so that his administratrix became tenant under the lease; whence it is clear that a distress would lie for rent which, accruing in the lifetime of the lessee, did not fall due until after his death and in the time of the tenancy of the administratrix; and that may have been such a case. If this is not an explanation of that case, I cannot agree that, when a tenancy has been determined by the death of the tenant, arrears of rent may be distrained for, within the words of sect. 7, "during the possession of the tenant from whom such arrears became due."

The present case is also distinguishable from Braithwaite v. Cooksey on the ground that there was no possession by any representative of the tenant at the time when the act, otherwise illegal, was done by the defendant. It is true the plaintiff afterwards took out administra

(a) 1 H. Bl. 465.

1862.

TURNER

v. BARNES.

1862.

TURNER

v.

BARNES.

tion, but I doubt whether the defendant can say that the wrongful act of the plaintiff in taking possession was converted into a rightful one by relation. There are cases in which a wrongful act may become rightful by relation, but it is not necessary to say whether this is one of them, because, even if the plaintiff had been in possession as administratrix, this case would not be within the statute.

BLACKBURN J. I am of the same opinion. If it was necessary to consider whether Giles v. Walker (a) is still a binding authority, I should require time to consider the matter very carefully before I said that it was not. But it is not necessary, because, assuming that the authority of that case has been so shaken as not to be binding upon us, the utmost effect which can be given to the deed is, that Turner during his lifetime became tenant at will, subject to a rent which might be distrained for. It would be an enormous mischief if we were to hold, contrary to the fact, that the payment of interest under a mortgage deed turned the possession of the mortgagor into a tenancy from year to year, requiring six month's notice before the mortgagee could enter into possession.

Treating this then as a tenancy at will, it terminated on the death of the tenant, and the only question is whether, after the tenancy at will had been determined by the death of the tenant, the defendants could distrain goods on the demised premises by virtue of stat. 8 Ann. c. 14. Sect. 6 of that statute recites: " "Whereas tenants pur auter vie and lessees for years or at will, frequently hold over the tenements to them demised, after the determination of such leases: and whereas after the determination of such, or any other leases, no distress can by law be (a) 6 C. B. 662.