Abingdon Rural District Council v O'Gorman
| Jurisdiction | England & Wales |
| Judgment Date | 29 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0529-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 May 1968 |
[1968] EWCA Civ J0529-1
In The Supreme Court of Judicature
Court of Appeal.
Appeal from judgment of Judge Rawlins, at Thame, on 13th September, 1967.
The Master of the Rolls (Lord Denning),
Lord Justice Davies and
Lord Justice Russell.
Mr. LEO CLARK (instructed by Messrs. Challenor, Son & Gardiner) appeared on behalf of the Plaintiffs, Respondents.
Mr. STANLEY WALDIAN (instructed by Messrs. Cole & Cole) appeared on behalf of the Defendant Appellant.
THE MASTER OF THE ROLLS; The Abingdon Rural District Council own No. 42 Gozzards Ford near Abingdon. They let it to Mr. Sheppard. He fell into arrearwith his rent. On 1st August he owed 23.17s, Od. So they decided to levy a distress for the amount owing. As it was a Council house, it was not within the Rent Acts; and they did not need the leave of the Court, They were entitled to levy it on their own.
On 1st August, 1966, the Council issued a warrant of distress which gave to the bailiff authority to distrain upon the house for 23. 17s.0d. arrears of rent. On 5th August, 1966, the bailiff went to the house. He took possession of a television set, an electric heater and a transistor radio and gave the tenant notice of distress in the prescribed form. The tenant agreed to give the bailiff "walking possession" of the goods.
So the bailiff got him to sign this agreement;
To: Mr. W. Savage (Bailiff)
In consideration of
(a) your not; removing from 42 Gozzards Ford, near Abingdon, the goods distrained upon by you (which are listed in the inventory below) and
(b) your delaying the sale of those goods.
I hereby agree that
1. You may take possesion of these goods and hold them in walking possession.
2. You or your man may re-enter the premises at any time while the distraint is in force.
3. I will not remove or allow to be removed from the premises any goods so distrained.
4. I will inform any person who may visit the premises for the purpose of levying any other distress or execution that you are already in possession of the goods so distressed, and I will inform you of any such visit.
5. You may remove and sell those goods at any time after the 10th August, 1966, if I have not by then paid the sum due and your fees, charges and expenses.
Dated the 9th day of April. 1965 E.J, Sheppard.
"Inventory: 1 Sobel Television. 1 Electric Fan Heater. 1 Transister Radio."
After that agreement was signed, the bailiff departed and left the goods in the house, just as they had been all the time, with the tenant making use of them. No one visiting the house would have known that there was anything different.
During the next fortnight the bailiff went to the house on four or five occasions, but the tenant was not at home. So he did not go in. On Friday, the 19th August, he found the tenant there. He went in. The fan heater and transister were still there, and he took them. But the television set was gone.
It appears that the television set did not belong to the tenant. He had it on hire from Mr. O'Gorman. About the 18th August, the tenant asked Mr. O'Gorman to remove it: and he did remove it just one Jay before the bailiff came. Mr. O'Gorman did net know that the set had been distrained for rent. The tenant did not tell him anything about it. So Mr. O'Gorman took back the television set in ignorance of the distress.
The landlords now claim that Mr. O'Gorman, by taking away the television set, was guilty of pound-breach and is liable to treble damages. The set was worth 15. So they claimed 45 for pound-breach; and the Judge gave judgment for that sum. The Judge said: "It is unfortunate for the defendant because at the time he did not know of the pound but theremust be judgment for the plaintiffs for 45 and costs. Mr. O'Gorman now appeals to this Court, He says that the goods were never in law impounded; and that he was not in pound-breach simply by retaking his own goods.
It is very rarely that we have a case about distress for rent. It is an archaic remedy which has largely fallen into disuse, very few landlords have resort to it. But the Abingdon Rural District Council seem to find it a worthwhile remedy. So we are called upon to examine it. In particular, what acts are necessary to make an "impounding".
At common law the rent Issued out of the land. The landlord was entitled to distrain on any goods or chattels that were on the premises, to whomsoever they belonged. As soon as he seized the goods, he had immediately to remove them; from the promises and put them into a pound, see Bullen on Distress, 2nd edition, pages 170, 176. But he could not sell them. He could only keep them in the pound until the arrears were paid, or the goods were replevined. On the way to the pound, and whilst in the pound, the goods were in the custody of the law. If they were taken by the owner or anyone else, the taker was guilty of a called rescous (if taken on the way to the pound) and pound-breach (if taken after being put inside the pound).
Those strict rules of the common law were altered by Statute. In 1689 the landlord was empowered to sell the goods if the arrears were not paid within five days. In 1738 he was authorised to impound them on the premises. If anyone broke the bound he was liable to treble damages. The material words for present purposes are contained in the Statute of 1738 (11 Geo, II C. 19), it said that; it shall and may be lawful to and for any person or persons lawfully taking any distress for any kind of rent, to impound, or otherwise secure the distress so made, of what nature or kind soever it may be, in such place or on such part of the premises chargeable with the rent, as shall be most fit and convenient for the impounding and securing such distress….and that if any pound-breach or rescous shall be made of any goods and chattels, or stock distrained for rent, and impounded or otherwise secured by virtue of this Act, the person or persons aggrieved thereby shall have the like remedy, as in cases of pound-breach or rescous is given and provided by the said Statute" of 1689, viz.; "in a special action upon the case for the wrong thereby sustained, recover his and their treble damages against the offender or offenders in any such rescous or pound-breach.
In the years following that Statute, the Judges held that in Order to "impound or otherwise secure" the distress on the premisesthe landlord had to move the goods into a fit and convenient place on the premises, such as one or two rooms, and lock them up. The goods had to be visibly secured on the premises against the danger of removal by the tenant or anyone else. If there was no fit and convenient place on the premises, the landlord had to remove the goods out of the house. It was so held in 1769 by chief Justice Wilmot in Thornton v. Cruther & Others (unreported) and in 1774 by Lord Mansfield in Washborn v. Black, reported in 11 East, page 405 note (a), and accepted in 1846 by Baron Parke in Woods v. Durrant ((1846) 16 W. & M. 158), and by Chief Baron Pollock in Smith v. Ashforth (1860) 29 L.J, Ex. p. 259). So far as the tenant was concerned, however, it was open to him to agree to the goods being left as they were in the whole house, undisturbed, with his having the use of them. In that case the distraint was good as against him. They were to be regarded as impounded qua him, as in Washborn v. Black. But, as against persons who were strangers to the tenancy, the goods had to be visibly secured. There had to be an open and manifest act, such as to show that the goods were '-' impounded or otherwise secured". That was the case in Firth v, Purvis (1793) 5 T.R. p. 432, where the plaintiff had distrained four pipes of beer and "had put his nark upon them" and "had impounded them in a convenient part of the premises". It was admitted that they had been validly impounded. That case was much considered in Thomas v, Harries (1340) 1 M. & Gr. p. 695 and I must say that I prefer the reasoning of Mr. Justice Maule to that of the other Judges. The doubts expressed by Mr. Justice Bosanquet were justified. In order to "impound or otherwise secure" the goods there must be some distinct act manifesting it. Words alone are not enough.
To prove the point, it is as well to remember the offence of pound-breach. As soon as the distress is impounded, whether on or off the premises, it is in the custody of the law; and anyone who breaks the pound (as by forcing the lock) or takes the goods out of the pound, is guilty of pound-breach. He is indictable for a misdemeanour for which he can be sent to prison,and is also liable to an action which carries penal consequences, namely, for treble damages. On principle, a man is not to be held guilty of this offence unless he has a guilty mind. He must know that the goods have been, impounded or otherwise secured, on or off the premises. How can a stranger be expected to know this unless there is some open and manifest act so as to show it? I am prepared to hold, therefore, that, as against strangers, goods arc not validly impounded unless they are locked up in a room or otherwise secured in such a way that it is manifest that they are not to be taken away. "Walking possession" cay be sufficient as against the tenant who agrees to it, but not as against a stranger who knows nothing of it.
There are, however, two cases which need to be considered. In Jones v, Biernstein, 1899, 1 C.B. p. 470, the landlord had impounded the goods on the premises and put a wan in possession. The man went off for the Sunday. The true owner then retook his goods. It washeld that he was guilty of pound-breach. But there it was found as a fact that the goods had been impounded. The Judges expressly declined to rule what acts will amount to impounding.
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