Moore, Nettlefold & Company v Singer Manufacturing Company
| Jurisdiction | England & Wales |
| Date | 1904 |
| Year | 1904 |
| Court | Court of Appeal |
Landlord and Tenant - Distress - Sale by Auction of Goods distrained - Purchase by Landlord - 2 Will. & M. Sess. 1, c. 5, s. 2 - Practice - Appeal from County Court - Leave to appeal to High Court - Right to appeal on leave to Court of Appeal -
A sale, in pursuance of 2 Will. & M. Sess. 1, c. 5, s. 2, of goods distrained must be a sale to a third party, and if the landlord purchase the goods himself no property passes.
In an action in the county court, where the leave of the judge to appeal to the High Court is required, the giving of leave creates a right of appeal within s. 1, sub-s. 5, of the Supreme Court of Judicature (Procedure) Act, 1894, and a further appeal lies to the Court of Appeal by leave of the Divisional Court hearing the appeal or of the Court of Appeal.
APPEAL from the judgment of a Divisional Court, reported [
The action was brought to recover a sewing machine which the plaintiffs claimed as their property. It appeared that the defendants were makers of sewing machines, and they let one to a tenant of the plaintiffs on a hire-purchase agreement, which contained a clause providing that the defendants should have power to seize the machine if the instalments were in arrear. The rent of the premises let to the tenant by the plaintiffs became in arrear, and they put in a distress, and seized the sewing machine among other things. At a sale by auction of the goods distrained, the manager of the plaintiffs bought the sewing machine on their behalf. The plaintiffs then relet the machine to their tenant on a hire-purchase agreement. The instalments due under the original hire-purchase agreement of the defendants having fallen into arrear, they seized the sewing machine under the authority of that agreement. This action was brought in the county court against them for conversion in so doing.
The county court judge held that the sewing machine was lawfully bought by the plaintiffs, and that the property in it passed to them on the sale, and gave judgment in their favour, but he gave leave to appeal to the High Court.
The defendants appealed.
Upon the appeal the Divisional Court, Lord Alverstone C.J., Wills and Channell JJ., held that the property in the sewing machine had not passed to the plaintiffs on the sale by auction, and judgment was given for the defendants.F1
The Court refused leave to appeal, and the plaintiffs applied to the Court of Appeal for leave, which was granted.
The plaintiffs accordingly appealed, and on the hearing of the appeal —
Hugo Young, K.C., and Lawless, for the defendants, took a preliminary objection to the appeal. In this case there was no appeal from the county court without leave, owing to the smallness of the amount involved; but the judge, thinking that the case involved an important question of principle, gave leave to appeal, and the case accordingly was heard on appeal by the Divisional Court, who refused leave to appeal. This Court, upon the application of the plaintiffs, gave leave to appeal under the Supreme Court of Judicature (Procedure) Act, 1894, s. 1, sub-s. 5; but it is submitted that the case is not within the sub-section, and therefore the Court of Appeal had no power to give leave under it. The sub-section only applies to cases in which there was an appeal as of right from the inferior Court. Therefore this case is governed by the
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