Potts v Hickman
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Maugham,Lord Thankerton,Lord Wright,Lord Romer |
| Judgment Date | 09 December 1940 |
| Judgment citation (vLex) | [1940] UKHL J1209-2 |
| Date | 09 December 1940 |
| Court | House of Lords |
[1940] UKHL J1209-2
House of Lords
Lord Chancellor
Viscount Maugham
Lord Thankerton
Lord Wright
Lord Romer
After hearing Counsel, as well on Tuesday the 30th and Wednesday the 31st, days of July last, as on Thursday the 1st, Tuesday the 6th and Wednesday the 7th, days of August last, upon the Petition and Appeal of George Potts (trading as Potts and Sons), praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 25th of July 1939, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Frances Mary Hickman, Widow, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 25th day of July 1939, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of His Honour Judge Tebbs, of the 27th day of January 1939, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Wolverhampton County Court, to do therein as shall be just and consistent with this Judgment.
My Lords,
The remarkable feature of this Appeal is that the question it raises has never been raised and decided before.
The occupier of a house in Wolverhampton was behindhand both with his rent and with the payment of his rates. When the Appellants, as bailiffs for the Corporation, levied for the rates on the occupier's goods and chattels under a warrant of distress, which had been granted by two justices of the peace for the borough, the Respondent as landlord of the premises gave notice to the Appellants claiming that the rent then due and payable constituted, under section 1 of the Landlord and Tenant Act, 1709 ( 8 Anne, c.14; c.18 in the Revised Statutes), a first claim on the proceeds of sale. This claim was resisted and in the Wolverhampton County Court Judge Tebbs dismissed it as unfounded. The Court of Appeal took a different view, and held that the landlord's claim was justified. We now have to decide which view is right.
The Elizabethan poor law of 1601 (43 Eliz. c.2) authorising the levying of distress for poor rates, and the Statute of 1709, "for the better Security of Rents, and to prevent Frauds committed by Tenants," which requires an execution creditor to pay to the landlord certain arrears of rent in priority to levying execution upon the tenant's goods and chattels, have lived side by side for over 230 years. Hitherto no one—text-writer, litigant, or judge—has ever suggested that the latter statute controlled the former, i.e. that the exaction of unpaid rates by means of a distress warrant was subject to the condition that the rating authority should first provide for unpaid rent due to the landlord. Comprehensive digests of the Law of Rating and of the Law of Landlord and Tenant respectively, with every case noted, are on the shelves of every law library, but nowhere in either class of work is the suggestion to be found that the law of rent and the law of rates impinge at this point. Neither, so far as can be ascertained, is past or present practice in accordance with the contention of law now put forward by the Respondent. Nevertheless, if upon its proper construction the Act of Anne authorises and requires that this contention should be accepted, accepted it must be, and past failure to appreciate the true operation of the statute does not affect the conclusion at all.
The House has been much assisted by the learning and research of counsel on both sides, and we further have the advantage of the full and carefully reasoned judgment of Lord Justice Goddard, delivered on behalf of the Court of Appeal. If the test which would determine the present controversy were completely stated by asking whether the lawyers of 1709 would have regarded the levying of a distress for rates as an execution, there would indeed be a great deal to be said for the learned Lord Justice's conclusion. Ten years before the Act of Anne was passed, Holt C.J. in the deer-stealing case ( Rex v. Speed (1699) 12 Mod. 328) had said that "when a statute says money 'shall be levied by distress,' that is an execution." (At p. 330). In Hutchins v. Chambers (1758) 1 Burr. 597, where the question was whether beasts of the plough were privileged from distress for poor rates and it was decided that they were not, Lord Mansfield quotes with approval the following passage from 3 Salkeld p. 136:
"This common-law exemption of utensils, tools, instruments of husbandry etc. from distress holds only in distress for rent arrear, amerciaments etc., but doth not extend to cases where a distress is given in the nature of an execution by any particular statute; as for poor rates."
"Therefore," adds Lord Mansfield, "it is more analogous to an execution than to a distress at common law, and there (in cases of execution) averia carucae may be distrained; although there be other sufficient distress."
At the end of the 18th century yet another Chief Justice affirmed the analogy. In Rex v. Benn and Church (1795) 6 T.R. 198, Lord Kenyon said that a warrant of distress for poor rates was "in the nature of an execution".
If, however, all that was necessary to bring distress for rates within the scope of the Statute of Anne was to realise that distress for rates might be regarded as "in the nature of an execution," why has the enforcement of payment of rates by distress warrant gone on to this day without regard to the landlord's claim for rent overdue? The answer is that the decisive question is not whether distress for rates can be regarded as a form of execution, but whether it should be regarded as execution within the meaning of section 1 of the Landlord and Tenant Act, 1709. It is the language of the section (which is far from being well drawn, according to modern standards) and not the abstract question whether certain forms of distress approximate to execution, which must determine the issue.
Section 1 is in the following terms:—
"For the more easy and effectual Recovery of Rents reserved on Leases for Life or Lives, Term of Years, at Will or otherwise; Be it enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in Parliament assembled, and by the Authority of the same, That from and after the First Day of May which shall be in the Year of our Lord One thousand seven hundred and ten, no Goods or Chattels whatsoever, lying or being in or upon any Messuage, Lands or Tenements, which are or shall be leased for Life or Lives, Term of Years, at Will or otherwise, shall be liable to be taken by virtue of any Execution, on any Pretence whatsoever, unless the Party at whose Suit the said Execution is sued out, shall before the Removal of such Goods from off the said Premises, by virtue of such Execution or Extent, pay to the Landlord of the said Premises or his Bailiff, all such Sum or Sums of Money as are or shall be due for Rent for the said Premises at the Time of the taking such Goods or Chattels; by virtue of such Execution; provided the said Arrears of Rent do not amount to more than One Year's Rent; and in case the said Arrears shall exceed One Year's Rent, then the said Party, at whose Suit such Execution is sued out, paying the said Landlord or his Bailiff One Year's Rent, may proceed to execute his Judgment, as he might have done before the making of this Act; and the Sheriff or other Officer is hereby impowered and required to levy and pay to the Plaintiff as well the Money so paid for Rent as the Execution Money".
The words of the section indicate that the sort of execution which it contemplates should fulfil these conditions: (1) it must have been "sued out" by a "party". (2) After providing for the prescribed arrears of rent "the said party, at whose suit execution is "sued out … may proceed to execute his judgment". (3) The process, when executed by the "sheriff or other officer" should result in payment "to the plaintiff" of the "execution money."
This phraseology is entirely suitable to the execution of a writ of fi fa. In Henchett v. Kimpson (1762) 2 Wilson K.B. 140, Pratt C.J. said, at p. 141, with reference to the word "plaintiff" in the last limb of the section "the statute shall have a liberal construction, and the words 'party at whose suit the execution is sued out' shall be construed to mean either plaintiff or defendant, whose judgment and execution it is". What is contemplated is that the successful party in a litigation who has obtained judgment follows this up by "suing out" execution upon his judgment for the amount of money so awarded, i.e., the "execution money." The proceedings are contemplated as composed of two steps in succession, the first ending in judgment between the parties for a sum of money (damages or costs or both), and the second consisting of the successful party enforcing his judgment by execution. The distinction between these two steps is made plain in Altham's case (1610) 8 Co. Rep. 148a, 153b. What is essential...
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...taken as an indication that "execution" can never properly be used to describe an extra-judicial process for recovering a debt. 18 Potts v Hickman [1941] AC 212 is relied on by Miss Shekerdemian. That case established that the levying of a distress for poor rates under a justice's warran......