Davies v Property & Reversionary Investments Co Ltd [1929] 2 KB 222

 

Facts:

The plaintiff was a tenant of a flat of which the defendants were the landlords.

Rent was in arrears and distress was levied by a certificated bailiff and a notice of distress was served on the plaintiff, which read

"Take notice that by virtue of an authority to me given I have this day seized and distrained the goods and chattels specified in the following inventory, Sitting room [various articles - e.g., Carpet, 2 bookcases, sideboard] Bedroom [various articles, e.g. four pictures, wardrobe and all other goods upon the premises (unless specially exempt) sufficient to satisfy the amount of this distress and expenses."

Goods not specifically named in the notice but coming within the concluding words of the notice were sold. The plaintiff brought an action against the defendants claiming damages for illegal distress which was referred to an Official Referee who held that the sale was illegal on the ground that the above notice was insufficient. The defendants appealed.

Judgment of Talbot J:

"The point raised in this action is that, so far as relates to the goods not mentioned by name in the notice, that tsale was illegal, because no notice of distress, so far as those goods are concerned, had been given to satisfy the requirements of the Act of William and Mary. Of course it is well known that that Act was passed in the interest of landlords, to add to their facilities for recovering rent by enabling them to do that which, before the Act was passed; they could not do - namely, sell goods taken in distress. Before that Act, all the right they had was to detain them as pledges, as the preamble says, for enforcing the payment of the rent; and the preamble goes on to add that "persons distraining have little benefit thereby"; and it was in order to give them more benefit that this Act was passed. It enacts by section 2 that: "where any goods or chattels shall be distrained for any rent reserved and due upon any demise, lease, or contract whatsoever, and the tenant or owner of the goods so distrained shall not within five days next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion house," and so on.

Then: "after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may" - then various formalities. Then: "cause the goods and chattels so distrained to be appraised, " and after such appraisement shall and may lawfully sell them to the amount specified of the rent for which the said goods and chattels shall be distrained, and charges, and so on. It is obvious, therefore, that it is a condition precedent to the right of the landlord to avail himself of the indulgence given by this statute, that he should have done what the statute requires, the object of which is perfectly plain - namely, that the goods shall not be sold until the owner of the goods or the tenant of the premises shall have had an opportunity of replevying and giving proper security. The question therefore is whether the notice which has been given in this case, the material parts of which I have read, is a notice of distress (the words of the Act being "notice thereof") within the meaning of the Act of Parliament. The learned Official Referee has decided that as to goods which are only covered, if they are covered at all, by the words at the foot of the notice "and all other goods upon the premises (unless specially exempt) sufficient to satisfy the amount of this distress and expenses, " this is not a good notice within the statute of the goods taken, which is what the statute requires it to be a notice of.

It is obvious that if this matter were being decided afresh this is a question which might permit of very considerable debate, and it might well be said that there are two alternative meanings which can he given to the statute: firstly, that every article distrained and intended to be sold or as to which the power of sale is claimed or reserved, must he specified in the way in which things are specified in a detailed inventory. I gather from that that was so decided at nisi prius (a trial under the old civil rules), in two cases before the case of Wakenian v Lindsey, to which I will come in a moment. That would be one alternative. Of course that would be the most complete and businesslike way of giving the tenant or the owner of the goods, as the case might be, exact notice of what goods of his, or what goods on the premises in the case of the tenant, were in peril.

The other alternative would be that it is not necessary to give a detailed inventory or a detailed description of anything, but that it is enough to say: "1 have distrained all the goods on the premises, and they will be sold if you do not replevy them." That is a matter that has not been argued and one which may arise some other time. It might be said those are the two alternatives and that one must adopt one or the other, and it is obvious that there are arguments for and against both, both on the actual wording of the statute (perhaps the only thing that can be considered) and on the convenience and reasonableness of the matter.

The embarrassment which has been caused here is that there are two cases in which this precise point was dealt with, that is, the meaning of the words "notice thereof" in the statute of William and Mary. There are two cases in which the Courts - both Courts of great authority - have had to consider whether a notice very much resembling in general form the notice in this case was a sufficient compliance with the statute.

The cases are Wakeman v Lindsey and Kerby v Harding. In Wakeman v Lindsey the action was, as it is here, for an illegal sale of goods distrained, and on the ground, as here, that the notice did not cover the goods sold. The form of the notice is set out in the report. After a very short inventory, the whole of which was this: "Tap room, one clock and weights, etc., etc.," it went on: "and any other goods and effects that may be found in and about the said premises"; then there is a comma, for what it may be worth; then: "to pay the said rent and expenses of this distress." The case was tried by Erie J and it was submitted that the notice was defective and legally no notice, and on that point the learned judge is recorded to have agreed with the counsel for the defendants, and to have held that the notice was sufficient in law. As has been pointed out in the argument which we have heard from the learned counsel for the appellant, it was assumed by the Court of Queens Bench, in which the rule was moved and granted, that the intention was to distrain everything on the premises. But the Court evidently felt very great difficulty about the case, and I should gather from the judgments that it was new and surprising to them that a notice in this form should be adopted.

Patteson J,

"The wording of this form is extraordinary," and "perhaps the fair interpretation may be, all that are there; and, if in fact the broker, has taken everything without exception, the practice may be very bad and loose, but I cannot say that it vitiates the sale." Coleridge J. is perhaps still more doubtful about it. He says: "I have felt doubt, and decide with reluctance." He says: "The object of [the] statute Distress for Rent Act 1689 was that the party distrained upon should have notice of what was taken," and he says that in his opinion the language of the notice in that case was not fair notice.

He goes on, as did Patteson J, to say that the landlord distraining "may assume that the tenant knows sufficiently what [the goods distrained] are, and that to say "all" is enough. I do not feel justified in laying down that, in such a case, there must be a specification.". He decided with very great hesitation and evidently with great disapproval of the form which had been adopted.

Erle J, who had originally tried the case, gave the last judgment, and he also expresses his dislike of the form of words. He says: "There is evil in the use of such forms; yet there may be more if a landlord is held liable to an action for the use of words somewhat too general, and if it is rendered necessary that at the time of making a distress every thing must be brought out for the purpose of being described and numbered." Then his final words are very material, I think, because they illustrate or define the difference between Wakeman v Lindsey and the case of Kerby v Harding. He says: "The word "all" does give a description; so far that, if all be more than is required, the landlord is in peril for having taken too much." It is, of course, perfectly true in a sense that the word "all" does give a description; that is to say, however tedious the process may he, if one says one has taken all the goods on the premises, then it is only a question of going through them one by one and one finds exactly what has been distrained.

Then we come to the other case: Kerby v Harding. It is upon this that the learned Official Referee has decided the present case, and in his opinion - and perhaps there are not many opinions on such a point which are entitled to more weight - it is indistinguishable from the case which is now before the Court. That was an action, in substance, for selling goods without a proper notice under the statute. The words of the notice are not unlike the words of the notice in Wakeman v Lindsey, but they are different. They are general words after some particular chattels enumerated and described - namely, "and all other goods, chattels, and effects on the said premises that may be required in order to satisfy the above rent, together with all the expenses."

This case was tried before Parke B. It is needless for me to say anything about the authority of Parke B. He had tried the case in the first instance, and he also gave the considered judgment of the Court upon the rule. What happened at the trial was this. The defendant said that Wakeman v Lindsey was an authority in favour of the sufficiency of the notice and that it was precisely in point; and so fine is the distinction between the two cases that Parke B, upon that authority being cited to him, ruled that the notice was sufficient; and it was upon that ground that the rule nisi for a new trial on the ground of misdirection was obtained, the jury having found a verdict for the defendant.

From the report on the argument, it appears that the same points were discussed there as have been discussed here. The learned counsel who appeared in support of the rule had to deal, of course, with Wakeman v Lindsey, and he said this: The case of Wakeman v Lindsey, when examined, will be found very distinguishable from the present. The notice there included all the goods on the premises, whilst the present notice leaves the particular goods seized in uncertainty." That was the argument, and that, in substance, is the ratio of the decision given by the Court.

I pause for a moment to call attention to the very great authority of Kerby v Harding, a decision on the precise point which is raised in the present appeal. We have the decision in Wakeman v Lindsey on facts so similar that Parke B accepted that judgment as decisive of the case before him. His ruling was challenged before the Court of Exchequer, of which Parke B, I gather, was President, for the report does not say that the Chief Baron was present - and he delivered the judgment. Having heard this matter fully argued, and of course there having been much more opportunity of considering it than there had been at nisi prius, he came to the conclusion that he had been wrong in following the case of Wakeman v Lindsey, and that that case was distinguishable from the case then before the Court. One can hardly imagine a stronger decision, because not only is there the great authority of the Court of Exchequer of 1851, but there is the fact that Parke B, certainly one of the most learned and accurate judges who ever sat in an English court, came to the conclusion, on argument, that he had been wrong in his direction at nisi prius, and gave judgment making the rule absolute for a new trial. I think the grounds upon which he did that are stated, as they always are in Parke Bs judgments, with perfect lucidity and freedom from ambiguity. He had to deal there with the words which I have already read: "and all other goods, chattels, and effects on the said premises that may be required in order to satisfy the above rent, together with all the expenses."

I will read three or four passages from the judgment which show, I think, perfectly clearly what the decision was. Parke B says: "Upon consideration, we think that the terms of this notice are too vague, and do not point out any certain goods, chattels, or effects, except those which are before enumerated, which are the subject of the distress." Then he calls attention to the statute, and a little lower down he says: "It appears to us the statute not only requires the cause of taking to he mentioned, but also a notice to he given "thereof," that is, of the distress taken, which must include every thing taken." Then he refers to the fact that before the statute no notice at all was necessary, and he goes on: "This statute clearly requires some notice of the taking; and we think that, according to the reasonable construction of the statute, the notice ought to inform the tenant or the person whose effects are taken, by expressing what are the goods taken, and also what is the amount of rent in arrear. The general description, "any other goods, chattels, and effects on the premises, or in and about the premises," according to the decision of the Queens Bench, is sufficient."

That is, I think, a perfectly accurate description of the decision in Wakeman v Lindsey. Whether the Court were right or wrong in reading the notice there as having that meaning is another matter and quite unnecessary for us to consider here, but it is quite clear that they decided that it was a good notice because they construed the notice as meaning that all the goods were taken; and if it did mean that, then, in the words of Erle J, the word "all" does itself give a description which covers everything that is on the premises; and that, Parke B says in Kerby v. Harding was the decision in Wakeham v Lindsey. He continues: "But this notice does not impound all the goods on the premises, but only the goods, chattels, and effects that may be required in order to satisfy the rent mentioned in it. This notice leaves it uncertain what goods are taken; and therefore we think that it is not sufficient, and that the subsequent sale of any of the articles not included by name in the inventory itself is an illegal sale, for which the defendants are responsible." Parke B meant that the tenant or the owner of the goods would be unable to put his hand on any particular chattel and say: This is taken, or is not taken.

There is no doubt - it is sufficiently obvious from the argument to which we have listened - that these two cases leave the law in a somewhat unfortunate and inconvenient condition; but if the ordinary principles upon which cases are to he weighed are to he observed it is impossible to see how light can be more decisively obtained from a decision than from the decision of Kerby v Harding. Not only, as I have said, is it a case of the very greatest authority, but it deals specifically with Wakeman v Lindsey, which is compared with it, and which appears on its face to be in conflict with it, and states in perfectly clear terms what the difference between them is.

In my opinion, it being quite clear that we ought to follow Kerby v Harding, the only question is whether it can be distinguished from the case before us. Of course, unless the words are absolutely the same, one can always suggest some ground of distinction, but the question is whether there is any real ground of distinction. The words in Kerby v Harding are: "All other goods, chattels, and effects on the said premises that may be required in order to satisfy the above rent, together with all the expenses." The words here are: "And all other goods upon the premises (unless specially exempt) sufficient to satisfy the amount of this distress and expenses." The words are not the same, but for my part I can see no distinction in meaning between "all goods ... that may he required in order to satisfy the above rent" and "all goods upon the premises, sufficient to satisfy the amount of this distress." They mean precisely the same thing; and if it be true, as the Court of Exchequer said, that the notice in Kerby v Harding left it uncertain what goods were taken, so, in my opinion, does the notice here.

I should like to add that the fact that the learned Official Referee considered that the case was absolutely indistinguishable from Kerby v Harding adds greatly to the confidence which I feel in coming to the same conclusion. In my opinion the learned Official Referee was perfectly right. I think I agree with every word of his judgment; I certainly do so with the whole of the substance of it, and the appeal must be dismissed with costs.

Humphreys J:

"I concur, and 1 do so upon the ground stated in the judgment of the learned referee, where he says: "I confess, having considered the form of this notice and the form and the reasoning in the case of Kerby v Harding, as expressed in Parke Bs judgment, I cannot differentiate the notice in this case from the notice in that case."

If the decision in Kerby v Harding, which was a considered decision of the full Court, consisting of some of the most eminent judges who have graced the Bench of England, is to be reconsidered, it having been delivered in the year 1851, at least it cannot be by this Court today. I entirely agree with my Lord that we are bound to follow that case. Therefore the only question that I think we are at liberty to consider, in spite of the exceedingly able argument of Mr Eddy, is: Is it possible to distinguish the notice given in this case from the terms of the notice which was decided to be a bad notice in Kerby v Harding? My view of the two cases, which are certainly the two most important cases which have been referred to here, quite shortly is this. In Wakeman v Lindsey it was assumed that the person who distrained intended to distrain upon all the goods that were upon the premises, and as between the landlord and the tenant the Court came to the conclusion, though with considerable hesitation, that the expression, "any other goods and effects that may be found in and about the said premises, " was an indication that all the goods which in fact were upon the premises were then seized; and the Court held - and, I think, this is the only decision in that case - that if a notice states sufficiently clearly that the seizure is a seizure of all the goods upon the premises, it is not necessary to set out the goods in detail in the form of an inventory or otherwise. Then came the case of Kerby v Harding, and the distinction which was drawn by Parke B in his judgment and taken by all the judges who agreed in that judgment, between the notice in that case and the notice in Wakeman v Lindsey, consisted in the introduction of four words in the notice in the later case, Those four words are the words, "that may be required," so that the notice read as being a notice that there had been taken in distress "all other goods, chattels, and effects on the said premises" - so far it was clearly an intimation that the distress extended to all the goods, but it continued, "that may be required in order to satisfy the above rent." The decision of Kerby v Harding is a decision, as I read it, to the effect that because of those words the notice in that case was not a notice which made it sufficiently certain what goods were taken; to use the language of the judgment itself: This notice leaves it uncertain what goods are taken; and therefore we think that it is not sufficient."

In the present case it has been pointed out by Mr. Eddy, and I was struck by his argument, that the four words in the notice in Kerby v Harding are not to be found. The material words of the present notice are, "all other goods upon the premises (unless specially exempt) sufficient to satisfy the amount of this distress and expenses." I have endeavoured to distinguish the words in this case from the words in the notice in Kerby v Harding, but, like my Lord, I have found myself unable to do so.

The words, of course, are different, but the language seems to me to be the same. I, therefore, agree with the learned Official Referee that it is impossible to distinguish Kerby v Harding from this case."

 

 

Result

Inventories have a dual purpose.

Say what goods have been levied.

It must accompany a Regulation 15 Controlled Goods Agreement or goods be removed

 

Excluded from seizure:

Loose goods such as corn, unless in a cart (this was altered by the Distress for Rent Act 1689 s.2)

Perishable produce such as fruit and vegetables

Loose money (unless contained in a purse or cash box) because the identical goods had to be restored to the tenant.

 

Inventories must

Inform the debtor exactly what has been levied, should he wish to challenge this or apply for replevin and knows what should not be disposed of or removed.

If goods not included on the inventory were later to be removed, it enables the debtor to take court action.

Protects the creditor by showing the items against which the debt is now secured.

It guides a bailiff later sent to remove what goods may lawfully be removed.

It enables a bailiff later sent to remove whether or not there has been a poundbreach.

Enables third party claimants to seized goods to initiate interpleader action.

Tells other bailiffs the goods cannot be impounded again.