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of the risk of failure (for to frame a suggestion accurately was a matter of much nicety), as to make the permission to enter a suggestion, in many cases, no great boon to a defendant. By the 11th and 13th sections of the Extension Act this evil is remedied, for plaintiffs are never to have costs if they recover less than 207., or in cases of tort 57., until, upon their showing that the superior court had exclusive, or at least concurrent jurisdiction, a judge at chambers or the full court make an order to that effect. But the difference is not limited to shifting the burden and making the plaintiff establish his right to costs, instead of obliging the defendant to negative it; it extends further, for the plaintiff may now lose his costs, if the court or judge do not think fit to grant a rule or make an order, in cases in which formerly no sufficient suggestion to deprive him of them could have been entered. Such, at least, is the interpretation put upon the 13 & 14 Vict. c. 61, s. 13, by the present case, which arose on the following facts:-the defendant, living more than twenty miles from the plaintiff, paid 127. 7s., after being served with a writ for 121. 13s., and subsequently paid 6s. into court, which the plaintiff accepted and procured an order from a judge at chambers enabling him to get his costs taxed by the Master. The Court of Exchequer made a rule to rescind the order absolute, the judge (Martin, B.) who had made it fully concurring, as he had only made the order in deference to the course which Mr. J. Williams had adopted in a similar case. It was powerfully urged in argument, that as "may" could not be taken to give a discretion to the judge in those cases in the 13th section, in which the jurisdiction of the superior courts was exclusive, the same word could not cease to be imperative when applied to the other cases mentioned in that section. The court, however, held that the natural meaning of "may" was permissive, and was not to be construed "shall," except when regarding a public duty. Martin, B., expressly states his opinion to be, that "may" is permissive as to every branch of sect. 13. It is not quite clear from the report whether Pollock, C. B., concurs in this view or no; but the point is of no practical importance, as no judge would exercise his discretion by refusing costs in a case of exclusive jurisdiction. The second case is a practical illustration of the beneficial working of the substituted system. The plaintiff got 40s. damages in trespass for a wrongful distress; one of the pleas was "not possessed." Now, in a very recent case, Timothy v. Farmer (7 C. B. 814), it was held, that no suggestion could be entered under similar circumstances, on the ground that title was in question (which it was not really in either case). But there, observes Lord Campbell, C. J., the
initiative lay on the defendant, who was, he suggests, concluded, by his having pleaded "not possessed," from asserting that title did not come in question. But now the onus is on the plaintiff, and we think it clear that he is bound to show that he could not sue in the County Court, by establishing the fact that the title did really bonâ fide come in issue, not merely that the defendant had so pleaded that it possibly might have come in issue. Accordingly, an order made by Patteson, J., on the supposition that title was put in question, and that if so, he had no discretion, was discharged.
Here we may also notice Parker v. Great Western Railway Company (20 Law J., Exch. 112), in which a very strong opinion was expressed by the Court of Exchequer that the right of appeal given by the 13 & 14 Vict. c. 61, did not affect the right to remove by certiorari a plaint from the decision of which an appeal might be had; and also the case of In re Brookman v. Wenham (20 Law J. Q. B. 278), in which a rule nisi had been obtained for an attachment against the judge of a County Court for not returning a certiorari for removing a plaint which had been brought to recover 367. 16s. upon a bill, when Erle, J., sitting in the Bail Court, although he discharged the rule upon another point, held that the writ of certiorari was valid, inasmuch as the Extension Act must be construed to leave the power of issuing a certiorari as it stood under the 9 & 10 Vict. c. 95, which provides for it in some cases.
LANDLORD AND TENANT-DISTRESS-NOTICE.
Wakeman v. Lindsay, 19 Law J., Q. B. 166; Kerby v. Harding, 20 Law J. Exch. 163.
A DISTRESS for rent in arrear is perhaps the most valuable, and certainly the most familiar instance in which a man may lawfully obtain redress by his own act. More than common interest, therefore, attaches to any decision upon the forms which attend or the restrictions which limit its use. The remedy was, however, but a cumbrous one, until the power of selling the distress was given by statute. This was given by the 2 Will. & M. s. 2, c. 5, which at the same time imposes certain obligations, one of which is, in substance, that effectual notice. of the distress should be given to the tenant. This notice should be in writing, and usually, in practice, consists of two parts; the first informing the tenant wherefore and by whom the distress is levied upon such of his goods and chattels as are therein stated to be mentioned in the other part, which is in the
form of an inventory or catalogue. As, at common law no such notice was necessary; the landlord had only to take the goods upon the premises for which the rent was due, to impound them and convey them to some public or private pound, and if the latter, to give notice of its locality; so the tenant could, by seeing what was taken to the pound, know easily to what the distress extended. This information he now gets from the inventory part of the notice, and these two cases turned upon what was sufficiently explicit as such. In the earlier case the inventory, after specifying various articles, concluded, " and any other goods and effects that may be found in and about the said premises, to pay the said rent and expenses of this distress." Everything on the premises was intended to be taken, and was actually taken; and the court, not without some reluctance, held the form sufficient, as it would just bear that interpretation. In the latter case the inventory, after likewise specifying divers chattels, ended thus," and all other goods, chattels and effects that may be found in and about the said premises, that may be required in order to satisfy the above rent, together with the expenses." The court thought these terms too vague, and that they did not point out any certain goods, chattels or effects, other than those specified, and accordingly, except as to those, they held the subsequent sale to have been illegal for want of the requisite notice. Had the conclusion ended with the word "premises," and had everything been taken, it would have been otherwise, on the authority of the previous case. The principle to be deduced from these two cases is, that the person distrained upon has a right to know exactly which of his chattels are taken and which are not. It is not, indeed, requisite that this should be attained by his being furnished with a strictly accurate catalogue of all that are seized, but he must have information sufficiently certain to enable him to gather clearly, as to any one chattel in particular, whether it is meant to be included in the distress or not. This he may do if he is informed that "all on the premises," or "all in the parlour," or "all in one corner of the room," are taken, as certainly, though not as easily, as if each were specified; but he has no means of knowing to which " so many as may be required," or "all that may be wanted," to pay the rent and expenses, may or may not apply. He can neither know which he may still lawfully dispose of, nor judge whether the distress be excessive, or not.
LANDLORD AND TENANT-DISTRESS-FIXTURES.
Hellawell v. Eastwood, 20 Law Jour. Exch. 154.
ANOTHER important point in the law of distresses was decided in this case. It was whether cotton-spinning machines, which were fixed by means of screws, some into the floor and some into lead which had been poured in a melted state into holes in the stone, for the purpose of receiving the screws, were by law distrainable for the rent of the mill in which they were affixed. As the case was not touched by any of the statutes affecting distresses, it was decided entirely upon the liability of a thing to be distrained, as it stood at the common law. The counsel for the plaintiffs quoted Amos and Ferrard on Fixtures, where it is laid down," that things adhering to the freehold cannot be taken under a distress. . . And this rule holds not merely in respect of such things as become by annexation parcel of the inheritance, and are not afterwards severable, but it applies to fixtures of whatever nature or construction, and whether put up for trade or for any other purpose" (2nd ed, p. 314), and they argued that the machines, being fixed with screws, were clearly fixtures. On the other side it was argued, that chattels so fixed to the land as to be easily removable, without injury to the land or to themselves, were distrainable. As far as regarded the exemption from distress, on the ground of injury to the machines, from the taking to pieces, which would have been necessary had they been carried to a pound, as by the common law they ought, that ground was held not to apply to them more than to any other chattel which could not be removed entire, as they were not of a perishable nature, and the only injury to their owner was the trouble of carrying them back from the pound and refitting them, and that the law cast upon him. But with regard to their being fixtures, more consideration was necessary. It is undisputed law, that whatever is fixed to the freehold, and becomes part of it, cannot be distrained. Independently of the detriment to the thing itself, it has become part of the thing demised, and the nature of distress is not to remove part of the thing itself for the rent, but only the inducta et illata upon the soil or house (Gilbert on Distresses, pp. 34, 48). Now the question whether the machines were parcel of the freehold, was held to depend upon two considerations; 1st. The mode of annexation, as affecting the safety and facility of their removal, without injury to the freehold or themselves. 2nd. On the object and purpose of the annexation, whether it was for the permanent and substantial improvement
of the dwelling, or for the more complete use and enjoyment of the chattel. And with regard to this last point, which indeed almost wholly governs the decision, Parke, B., in delivering the judgment of the court, expressed his opinion as follows:"The object and purpose of the annexation was not to improve the inheritance, but merely to render the machines steadier and more capable of convenient use as chattels. They never were part of the freehold any more than a carpet would be which is attached to the floor by nails, for the purpose of keeping it stretched out, or curtains, looking-glasses, pictures, and other matters of an ornamental nature, which have been slightly attached to the walls of the dwelling as furniture, and which is probably the reason why they and similar articles have been held in different cases to be removable."
Had this principle been more generally recognized, and the mere mode of annexation not so exclusively considered, it is probable that much of the difficulty, and no little of the confusion, that now attends the law of fixtures, might have been avoided. One of the sources of difficulty is in the ambiguous use of the word fixtures; it has been applied too generally to whatever is in any way affixed to the freehold, whether it become parcel of it thereby or not. The holding a fixture to be removable between landlord and tenant, and not between heir and executor, seems strange, if the mode of annexation be the same, and that alone be considered as the basis of the decision. But if the presumed intention of the person annexing a chattel to the freehold be also looked to, the inconsistency will disappear, and many apparently conflicting decisions will be reconciled. In Amos and Ferrard on Fixtures (p. 318, 2nd edit.), observations are made upon the contradiction between the point decided here, and which was contended for in Duck v. Braddyl (1 M'Clel. 217), with the case of the mill-stone. Now, it would doubtless be very difficult to distinguish between the two, if the mode of annexation only be looked at. But it is probable that the mill-stone was either demised with the mill, or put up together with it by the tenant, and constructively as much a parcel of the freehold as is the key of a door, although not actually affixed. If it were worn out, or discarded for a better, then either mill-stone or key would, it is submitted, revert to the state of a mere chattel. The first ground assigned for the privilege of the stocking frame, in Simpson v. Hartopp (1 Smith's L. C. 190*), viz. the injury to the stocking then weaving, could
not be now relied on.