required by statute, he will be estopped from insisting on CHAP. VII. an irregularity occasioned at his own instance (s). The How disposed of. ment. constable of the parish where the distress is taken is the person before whom the appraisers must be sworn, and Appraisethe constable of an adjoining parish cannot interfere, even though the proper constable is not to be found when wanted (t). The goods having been appraised must be sold for the Sale. best price that can be got for them, unless they have been replevied, or the rent and charges have been paid. Where they are sold at the appraised value, the law will intend they have been sold at the best price (u); indeed it is not unusual for the appraisers to buy them at their own valuation. If the goods have been injured, or improperly allotted for sale, this it seems may be given in evidence upon a count for not selling goods at the best prices (x). There is no particular order to be observed on the sale, as that beasts of the plough should be postponed to other goods (y); but care must be taken not to include in the sale any article that was not actually distrained (x). If a tenant is under a covenant not to carry hay and straw off the premises, the landlord may sell hay and straw he has taken as a distress, subject to the condition that the purchaser shall consume it on the premises (a). The produce of the sale must be applied in satisfaction of the rent and the expenses of distress; if the produce is more than sufficient for that purpose, the overplus must be left in the hands of the sheriff, (s) Bishop v. Bryant, 6 Car. & P. 484. (t) Avenell v. Croker, M. & Malk. 172; Wallace v. King, 1 H. Bl. 13; Kenny v. May, 1 M. & Rob. 56. (u) Walter v. Rumball, 1 Ld. Raym. 53. (y) Jenner v. Yolland, 6 Price, 5. (z) Sims v. Tuffs, 6 Car. & P. 207; Bishop v. Bryant, 6 Car. & P. 484. (a) Abbey v. Petch, 3 M. & W. 419. CHAP. VII. undersheriff, or constable, for the use of the owner of the goods distrained (b). Expenses of. There is no statutory regulation as to the costs of a distress for rent above 20l., except that the statute 1 & 2 P. & M. c. 12, fixes a sum of fourpence for impounding a distress (c); but even this has been held not to extend to cases where goods are impounded on the premises under stat. 11 Geo. 2, c. 19 (d). The charges must, however, be reasonable (e); the general practice appears to be to charge one or two guineas for the levy, and three shillings and sixpence per diem for the man in possession. Where the sum distrained for does not exceed 201., the costs are regulated by statute 57 Geo. 3, c. 93, whereby it is enacted "that no person whatsoever making any distress for rent, where the sum demanded and due shall not exceed the sum of 201. for and in respect of such rent, nor any person whatsoever employed in any manner in making such distress, or doing any act whatsoever in the course of such distress, or for carrying the same into effect, shall have, take, or receive out of the produce of the goods and chattels distrained upon and sold, or from the tenant distrained on, or from the landlord, or from any other person whatsoever, any other or more costs and charges for and in respect of such distress, or any matter or thing done therein, than such as are fixed and set forth in the schedule hereunto annexed, and appropriated to each act which shall have been done in course of such distress; and no person or persons whatsoever shall make any charge whatsoever for any act, matter, or thing mentioned in the said schedule, unless such act shall have been really done." By section 2 it is enacted "that if any person or persons whatsoever shall in any manner levy, take, or receive from any person or (b) Lyon v. Tomkies, 1 M. & W. 603. (c) Vide supra, p. 255. (d) Child v. Chamberlain, 5 B. & Ad. 1049, vide supra, p. 257. (e) Lyon v. Tomkies, 1 M. & W. 603; Hills v. Street, 5 Bing. Expenses of. persons whatsoever, or retain, or take from the produce of CHAP. VII. any goods sold for the payment of such rent, any other or greater costs and charges than are mentioned and set down in the said schedule, or make any charge whatsoever for any act, matter, or thing mentioned in the said schedule, and not really done, it shall be lawful for the party or parties aggrieved by such practices to apply to any one justice of the peace for the county, city, or town, and acting for the division where such distress shall have been made, or in any manner proceeded in, for the redress of his, her, or their grievance so occasioned; whereupon such justice shall summon such person or persons complained of to appear before him at a reasonable time, to be fixed in such summons; and such justice shall examine into the matter of such complaint by all legal ways and means, and also hear in like manner the defence of the person or persons complained of; and if it shall appear to such justice that the person or persons complained of shall have levied, taken, received, or had other and greater costs and charges than are mentioned and fixed in the schedule hereunto annexed, or made any charge for any matter or thing mentioned in the said schedule, such act, matter, or thing not having been really done, such justice shall order and adjudge treble the amount of the monies so unlawfully taken to be paid by the person or persons so having acted to the party or parties who shall thus have preferred his, her, or their complaint thereof, together with full costs; and in case of non-payment of any monies or costs so adjudged to be paid, such justice shall forthwith issue his warrant to levy the same by distress and sale of the goods and chattels of the party or parties ordered to pay such monies or costs, rendering the overplus, if any, to the owner or owners, after the payment of the charges of such distress and sale; and in case no sufficient distress can be had, such justice shall, by warrant under his hand, commit the party or parties to the common jail or prison within the limits of the jurisdiction Expenses of. CHAP. VII. of such justice, there to remain until such order or judgment be satisfied." By section 3 power is given to the justices to summon witnesses. Section 4 empowers the justices to give costs to party complained against, if the complaint is unfounded, and provides, "that nothing herein contained shall empower such justice to make any order or judgment against the landlord for whose benefit any such distress shall have been made, unless such landlord shall have personally levied such distress; and that no person or persons who shall be aggrieved by any distress for rent, or by any proceedings had in the course thereof, or by any costs and charges levied upon them in respect of the same, shall be barred from any legal or other suit or remedy which he, she, or they might have had before the passing of this act, excepting so far as any complaint to be preferred by virtue of this act shall have been determined by the order and judgment of the justice before whom it shall have been heard and determined; and which order and judgment shall and may be given in evidence, under the plea of the general issue, in all cases where the matter of such complaint shall be made the subject of any action." The orders and judgments are to be made in the form given in a schedule to the statute, and proof of the signature of the justice thereto is to be proof of the order or judgment. The schedule of expenses at the end of the statute is as follows. All expenses of advertisement, if any such. 0 10 0 Catalogues, sale and commission, and deli very of goods, one shilling in the pound Copy of charges. There is, in section 6 of the above statute, an enact- CHAP. VII. ment applicable to every distress, whether the sum distrained for be above or under 20l. It is "that every broker or other person who shall make and levy any distress whatsoever, shall give a copy of his charges, and of all the costs and charges of any distress whatsoever, signed by him, to the person or persons on whose goods and chattels any distress shall be levied, although the amount of rent demanded shall exceed the sum of twenty pounds." A landlord, who does not personally interfere in the distress, is not liable for the neglect of the broker, employed by him to make a distress, in not delivering a copy of the charges, required by the statute (ƒ). Where a distress is made for a rent charge created by For tithe rent the recent statutes for the commutation of tithes in charge. England and Wales (g), certain formalities are required to be observed, which it is necessary here to notice. This rent charge is valued according to the average price of corn (h), and is payable by even half-yearly payments (i); and in case it becomes in arrear and unpaid for the space of twenty-one days next after any half-yearly day of payment, the person entitled thereto, after having given or left ten days' notice in writing at the usual or last known residence of the tenant in possession, may distrain upon the lands charged with the payment thereof, for all arrears of the said rent charge, and dispose of the distress when taken, and otherwise act, in relation thereto, as any landlord may for arrears of rent reserved on a common lease for years; but no more than two years' arrears are at any time recoverable by distress (k). (f) Hart v. Leach, 1 M. & W. 560. (g) 6 & 7 Will. 4, c. 71; 1 Vict. c. 69; 1 & 2 Vict. c. 64 ; 2 & 3 Vict. c. 62; 3 Vict. c. 15; 5 & 6 Vict. c. 54. (h) 6 & 7 Will. 4, c. 71, s. 57. (i) 1 Vict. c. 69, s. 11; 2 & 3 Vict. c. 62, s. 10; 3 Vict. c. 15, s. 13; 5 & 6 Vict. c. 54, s. 3. (k) 6 & 7 Will. 4, c. 71, s. 81. N |