When sale may be made. satisfy the rent due and expenses of the distress (p), and give notice in writing (g) to the tenant of the distress having been taken, the amount due, the particular articles seized, the place, if any, to which they are removed (r) and the time after which the goods will be appraised and sold, unless the rent and charges be paid or the goods replevied (s); this is usually written at the foot of the inventory (t). A copy of the inventory and notice must be left at the chief mansion-house or other most notorious place on the premises, or, if possible, served personally on the tenant, in which case leaving it at the house may be dispensed with (u). It is advisable that a witness be present in all cases, to prove the regularity of the proceedings (v). The landlord may not sell the goods distrained until after the expiration of five days from the date of seizure (w); and until the goods are actually sold the tenant may replevy them (x), or tender the rent and expenses; for, as has been already pointed out, the landlord may not sell after the full (p) See Forms 4, 5, post, pp. 373, 374. (q) Wilson v. Nightingale, 8 Q. B. 1034; 15 L. J. Q. B. 309; 10 Jur. 917. (r) 11 Geo. II. c. 19, s. 9. (8) Kerby v. Harding, 6 Exch. 234; 20 L. J. Ex. 163; 15 Jur. 953. (t) See form, post, p. 373. (u) 2 W. & M. 1, sess. 1, c. 5, s. 2; Walter v. Rumbal, 1 Ld. Rayın. 55; 1 Salk. 247. (v) Woodf. 424. (w) 2 W. & M. sess 1, c. 5, s. 2. (x) Jacob v. King, 5 Taunt. 451; 1 Marsh. 535. Replevin, according to Woodfall, is a remedy for the owner of goods or cattle which have been wrongfully taken under a distress for rent, whereby he obtains them back in a summary manner, through the Registrar of the County Court of the district within which the goods or cattle were taken, upon giving security to try the validity of the distress or taking, in an action for replevin to be forthwith commenced by him against the distrainor and prosecuted with effect, and without delay, either in the County Court or in the High Court, and to return the goods or cattle, if such return shall be awarded; L. & T. 454. ment. rent and expenses have been tendered (y), after, in fact, the object of the distress has been attained. The days are five clear days, reckoned exclusively of the day of distress and that of the sale (z); at the expiration of that period Appraisethe landlord must proceed to appraise, which he may do either on or off the premises (a), and sell. Immediately after the expiration of the five days limited by statute the goods ought in strictness to be either removed or sold, though a reasonable time will be allowed the landlord for the purpose of appraisement and sale (b); but if a forced removal or sale may depreciate the value of the effects, or the tenant wishes for delay. to enable him to raise the rent, it is a common thing for him to make an arrangement with the landlord for an extension of the time, and to consent to the landlord's remaining over the five days. This consent should always be in writing (c). made Before sale the goods must be appraised by two persons (d), By whom not necessarily professional appraisers, but reasonably competent (e); and they need not be sworn (ƒ); and the bailiff distraining must not be one of them (g). But if the tenant, to save expense, requests that appraisers may not be called in, and, in consequence, the distraining broker values the goods, the tenant cannot afterwards treat this as an irregularity (h). (y) Johnson v. Upham, 28 L. J. Q. B. 252; cf. supra, p. 273. (a) 11 Geo. II. c. 19, s. 10. (b) Pitt v. Shew, 4 B. & Ald. 208; Winterbourne v. Morgan, 11 East, 395; 2 Camp. 117. (c) See form, post, p. 375. (d) 2 W. & M. sess. 1, c. 5, s. 2. (e) Allen v. Flicker, 10 A. & E. 640; 4 P. & D. 735; 3 Jur. 1029; Roden v. Eyton, 6 C. B. 427; 18 L. J. C. P. 1; 12 Jur. 921. (f) 35 & 36 Vict. c. 92, s. 13. (g) Lyon v. Weldon, 2 Bing. 334; Andrews v. Russell, Bull. N. P. 81. (h) Bishop v. Bryant, 6 C. & P. 484. Appraisement stamp. How sale to be made. Surplus proceeds. The appraisement is usually written under or upon the inventory (i). By the Stamp Act, 1870, appraisements and valuations are liable to an ad valorem stamp (j). Before any sale takes place, it is prudent to search at the sheriff's or county court registrar's office, to see if the goods have been replevied (k). If not, and if the rent and expenses are not tendered (1), the sale may be proceeded with. The statute requires that the goods should be sold at the best price that can be gotten for them; and, to insure this, they should be sold by public auction; and the landlord cannot buy the goods at the appraised value (m); though it seems that it is often the practice to allow the appraiser to do so (n); but this, it is thought, is a very improper, or, at the least, imprudent, proceeding. The surplus, if any, is directed by the statute to be left in the hands of the sheriff, under-sheriff or constable, for the owner's use; and this means the overplus after payment of the rent and reasonable charges (o); and if the goods have been removed from the premises, and sufficient sold to satisfy the rent and expenses, the broker should leave the surplus money with the sheriff, and return the residue of the goods remaining unsold to the premises from which they were taken (p). It seems that there is no rule as to the order in which (n) Woodf. 437. (0) Lyon v. Tomkies, 1 M. & W. 603. (p) Evans v. Wright, 2 H. & N. 527; 27 L. J. Ex. 56. the goods are to be sold, as, that beasts of the plough should not be sold before other goods (4). The expenses of a distress, when the rent distrained for Costs of does not exceed £20, are limited by statute (r) to the following charges: Levying distress Man in possession, per day. Appraisement, whether by one broker or more, 6d. in the pound on the value of the goods. Stamp, the lawful amount thereof. All expenses of advertisements, if any such 8. d. 3 0 2 6 10 0 Catalogues, sale and commission, and delivery of goods, 1s. in the pound on the net produce of the sale. If any charge in excess of these is made, the person distraining is liable to a penalty of treble the amount of the overcharge. The statute does not apply to the case of a distress taken for more than £20, though made upon goods which are appraised at, and sold for, less than £20 (s). Every broker or other person distraining is required to give a copy, signed by him, of his charges, and of all the costs and charges of the distress, to the person or persons on whose goods the distress. was levied, although the amount of rent demanded exceeded the sum of £20 (t). This rule does not apply where the goods have not been sold (u); nor is the landlord liable for the broker's neglecting to give the copy of his charges, unless he personally interferes in the distress (v). If the rent demanded exceeds £20, there is no statutory limit, the charges must only be fair and reasonable (w). (q) Jenner v. Yolland, 6 Price, 3. (r) 57 Geo. III. c. 93. (s) Child v. Chamberlain, 5 B. & Ad. 1049. (u) Hills v. Street, 5 Bing. 37. (v) Hart v. Leach, 1 M. & W. 560. (w) Child v. Chamberlain, ubi supra. (t) S. 6. distress. Sale to be by auction. Regulations of sale: a. Pledges to be exposed. b. Catalogues to be published. The general practice appears to be to charge 1s. in the pound for the levy and 2s. 6d. per diem for the man in possession, if the tenant keeps him, and 3s. 6d. per diem, if he keeps himself, besides usual charges for appraisement, advertisements, catalogues &c. (x). IV. Sales under the Pawnbrokers Act, 1872. By the Pawnbrokers Act, 1872 (a), save so far as, in the case of a pledge on which more than 40s. has been advanced, the terms of a special contract may otherwise provide (b), the sale of a pledge pawned for more than 10s. (c) and not more than £10 (d) must be by way of public auction, and not otherwise (e); and the following regulations are to be observed by the auctioneer with reference to the sale (ƒ) :— 1. The auctioneer must cause all pledges to be exposed to public view. 2. He must publish catalogues of the pledges, stating a. the pawnbroker's name and place of business; b. the month in which each pledge was pawned; and 3. The pledges of each pawnbroker in the catalogue must be separate from the pledges of every other pawnbroker. (x) Woodf. 440. (a) 35 & 36 Vict. c. 93. (b) See ss. 10, 24. (c) Pledges for 10s. or under, not redeemed in time, are forfeited; s. 17. Pledges within the act are redeemable for a year, exclusive of the day of pawning, with seven days of grace; s. 16; and if for above 10s., they continue redeemable until sale; s. 18. (d) The act does not apply to loans of above £10; s. 10. (e) S. 19. (f) Ibid. and 5th schedule. |