improper use of the thing distrained, the effect of his wrongful user of it is to justify the owner in reclaiming his property without being liable for a rescue (107); but where the tenant continued to use a hired piano distrained upon, which the landlord had left in the custody of the tenant's wife with directions not to allow its removal, it was held that such did not operate as an abandonment of the seizure (108). The goods of a tenant, which had been mortgaged by him, were distrained for rent and impounded, and were left on the premises in his charge for over three weeks by agreement between him and the bailiff, when on being advertised for sale under the distress they were seized and taken away by the mortgagee. It was held that while there was a good distress and a good impounding as between the landlord and tenant, and while there was no abandonment between them, yet as between the landlord and the mortgagee the latter was entitled after the expiration of five days from the date of the distress, and after a reasonable time for the sale and disposal of the goods distrained had elapsed, to treat the goods as no longer in the custody of the law, but subject to his mortgage. It was also held that having taken possession of them under his mortgage, the mortgagee was not, under the circumstances, guilty of a pound breach under 2 Wm. & M. sess. 1, c. 5 (109). Where the landlord withdrew a distress at the request and for the accommodation of the tenant on obtaining from him a chattel mortgage on his goods for the rent, but the tenant fraudulently concealed from the landlord that he had previously given a chattel (107) Smith v. Wright 6 H. & N. 821. (108) Dimock v. Miller (1897) 30 N.S. R. 74. (109) Langtry v. Clark 27 Ont. R. 280. mortgage to another party covering most of the same goods, a second distress made after a seizure under the last mentioned mortgage was upheld (110). A landlord who receives a promissory note for rent and, by arrangement with the tenant, discounts it at the bank, is to be considered as having agreed that the right of distress shall be suspended until dishonour of the note (111). British Columbia Statutory provisions. By the British Columbia "Landlord and Tenant Act" (112) the rights of a landlord to distrain for rent owing to him by his tenant on goods in possession of the tenant sold to him under a duly filed agreement for hire, contract or conditional sale, is limited to 3 months' rent; and payment by the hirer or owner of such goods of the 3 months' rent, or so much thereof as will satisfy the landlord's claim, will discharge the claim of the landlord as against such goods (113). A similar provision is made in this province for the protection of the goods of lodgers and boarders (114) as is contained in the Ontario statutes. The British Columbia Landlord and Tenant Act contains a re-enactment as to that province of the statute 2 Wm. & M. c. 5, already referred to, under which the landlord is empowered to sell the goods distrained after due appraisement thereof and the expiry of 5 five clear days after the distress (115); and (110) Harpelle v. Carroll 27 Ont. R. 240. (111) Simpson v. Howitt 39 U.C.R. 610. (112) R.S. B.C. 1897, c. 110. (113) Stat. B.C. 1896, c. 18, s. 2; R.S.B.C. 1897, c. 110, S. 2. (114) R.S.B.C. 1897, c. 110, s. 3. (115) R.S.B.C. 1897, c. 110, ss. 6 et seq. also of the statute II Geo. II., c. 19 as to goods fraudulently removed to evade distress of same (116). N. W. Territories Statutory provisions. The Distress for Rent Ordinance (117) contains the following enactment: A landlord shall not distrain for rent on the goods and chattels the property of any person except the tenant or person who is liable for the rent although the same are found on the premises; but this restriction shall not apply in favour of a person claiming title under or by virtue of an execution against the tenant, or in favour of any person whose title is derived by purchase, gift, transfer or assignment from the tenant whether absolute or in trust or by way of mortgage or otherwise, nor to the interest of the tenant in any goods on the premises in the possession of the tenant under a contract for purchase or by which he may or is to become the owner thereof upon performance of any condition, nor where goods have been exchanged between two tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord, nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughterin-law or son-in-law of the tenant or by any other relative of his in case such other relative lives on the premises as a member of the tenant's family (117a). This section is similar to the Ontario statute passed in 1894 (118) as it stood before the amendment of same in 1897 (119) by which it was further provided, (116) R.S.B.C. 1897, c. 110, ss. 17 et seq. (117) No. 7 of 1896; Con. Ord. N.W.T. 1898, c. 34. (117a) No. 7 of 1896, s. 1; Con. Ord. N. W T. 1898, c. 34, s. 4. (118) 57 Vict. (Ont.) c. 43, S. I. (119) 60 Vict. (Ont.) c. 15, Schedule A. (60). as to that Province, that any person whose title is derived by purchase, gift, transfer or assignment from any relative to whom the restriction mentioned in the section is declared not to apply, shall not be entitled to claim exemption of the goods so acquired. In the North-West Territories the statutory lien in favour of threshers for their charges authorizes them to retain a sufficient quantity of the grain to pay such charges where they are employed "at or for a fixed price or rate of remuneration" (119a); and such right of detention and the right of removing the grain for the enforcement of the lien will, if exercised forthwith after the threshing is finished (1196), prevail over a right of distress for rent reserved upon the land upon which the grain is threshed (119c). Nova Scotia Statutory provisions. By the Tenancies and Distress for Rent Act of Nova Scotia (120), no distress for rent shall be made unless there be an actual demise at a specific rent (121). Where any goods are distrained in Nova Scotia for rent reserved and due upon any lease or contract, and the tenant or owner of the goods shall not, within five days next after the distress taken and notice. thereof with the cause of taking served upon him, or left at the most conspicuous place on the premises charged with such rent, replevy the same with security to be given to the sheriff, the landlord (with the sheriff or his deputy or a constable who are required to aid therein) may cause the goods so distrained to be (119a) Con. Ord. N.W.T. 1898, c. 60. (121) Sec. 2. appraised by two sworn appraisers who shall be sworn before a justice of the peace, the sheriff, his deputy, a constable or a commissioner (122). The goods so distrained may be impounded or otherwise secured in such place or on such part of the premises chargeable with the rent as shall be most fit and convenient, and the landlord may appraise and sell and dispose of the same on the premises, after giving five days' public notice of such sale by handbills to be posted in at least five public places in the district in which such sale is to take place. But the landlord has the option of removing the goods to another place of impounding or security, and may sell, after due appraisal and notice, elsewhere than on the premises (123). After the appraisement the landlord shall sell the goods distrained for the best price to be gotten therefor towards payment of the rent due and expenses incurred, leaving the surplus, if any, in the hands of the officer for the owner's use (124). Special provision is made by statute for the protection of lodgers' goods and for their release from distress made at the instance of the superior landlord upon payment to him of the amount due by the lodger to his immediate landlord (125). All property brought upon or into any building used as a market bona fide for the purpose of sale by any person or persons, not being the property of the tenant or property in which the tenant is interested, is exempt from distress for rent (126). (122) R.S.N.S. 5th series (1884), c. 125, S. 3. (123) R.S.N.S. 5th series, c. 125, s. 4, N. S. Laws, 1886, c. 38, s. 1. (124) R.S N.S. 5th series, c. 125, s. 5. (125) R.S.N S. 5th series, c. 125, ss. 6 and 7. (126) R.S.N.S. 5th series, c. 125, S. 9. |