A statutory right is conferred upon a landlord to seize "any cattle or stock of his tenant feeding upon any common belonging to any part of the premises demised" and also "all sorts of corn, grain, grass, hops, roots, fruits, pulse or other product growing on any part of the premises demised," as a distress for arrears of rent and he may cut, gather, cure, carry and lay them up when ripe, in barns or other places on the premises so demised (127). In case there is no barn or proper place on the premises demised for receiving the same, then he may cause the same to be placed in any barn or proper place to be procured as near as may be to the premises, and "in convenient. time" shall appraise and dispose of the same towards satisfaction of the rents and the charges of such distress as in other cases; but the appraisement is not to be made until after the crop is cut, cured and gathered (128). Notice of the place where the goods so distrained are deposited, shall within one week after their being so deposited, be given to the tenant or left at his last place of abode (129). In Nova Scotia sheaves or cocks of grain, loose or in straw, hay in a barn or upon a hovel, stack or rick, or upon the land charged with such rent, may be locked up or detained upon the premises by the premises by a landlord having rent in arrear, for and in the nature of a distress until the same shall be replevied; and in default of being replevied may be sold after due appraisement; but the same shall not be removed out of the place where found and seized by the distrainer, to the damage of the owner, before such sale (130). (127) R.S.N.S. 5th series, c. 125, s. 19. (128) R.S.N.S. 5th series, c. 125, S. 20. (129) R.S.N.S. 5th series, c. 125, S. 21. (130) R.S N.S. 5th series 1884, C. 125, S. 10. A provincial statute also provides for cases of clandestine removal by an enactment in the following terms: "In case any lessee of any messuage, lands or "tenements, upon the demise whereof any rents are "reserved, shall fraudulently or clandestinely convey from such demised premises his goods with intent to prevent the landlord distraining the same, such "landlord, by himself or his servants, may, within 21 days then next ensuing such conveying away, seize "such goods, wherever found, as a distress for such "arrears of rent, and dispose of the same as if they "had been distrained upon the premises, unless such goods shall have been sold in good faith and for a 'valuable consideration before such seizure, in which "case they shall not be liable to a distress (131). Executors or administrators of a deceased landlord may distrain for rent due in his lifetime, but if the term is ended the distress must be made within six months after its termination, and while the tenant continues to hold possession (132). An irregularity or unlawful act done after the distress is made, by the distraining party or his agent, will not make the distress unlawful nor constitute the distraining party a trespasser ab initio, but will give rise to an action for damages only (133). Manitoba - Statutory provisions. By statute in Manitoba (134) the following restriction is placed upon the right of distress : "A landlord shall not distrain for rent on goods "and chattels the property of any person except the (131) R.S.N.S. 5th series, c. 125, s. 15. (132) R.S.N.S. 5th series, c. 125, s. 18. (133) R.S.N.S. 5th series, c. 125, S. 13. (134) 59 Vict. (Man.) 1896, c. 6. "tenant or person who is liable for the rent, although "the same are found on the premises, but this restriction shall not apply to crops or grain in favour of a person claiming title under or by virtue of an "execution or attachment 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 posses"sion 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, daughter-in-law or "son-in-law of the tenant, or by any other relative of his, in case such other tenant lives on the premises 'as a member of the tenant's family" (135). 66 66 46 This provision is similar to that contained in the Ontario Landlord and Tenant Act " (136) with the distinction that in Ontario the restriction is declared not to apply to any goods in favour of persons claiming title under an execution against the tenant, while in Manitoba the restriction is only declared not to apply to crops or grain as to claimants of that class, and with the further distinction that, in Ontario, words have been added to the section since its original enactment so as to make the further exception that the restriction of the right of distress shall not apply (135) 59 Vict. (Man.) 1896, c. 6, s. 1. (136) R.S.O. 1897, c. 170, s. 31 (1). in favour of " any person whose title is derived by purchase, gift, transfer or assignment from any relative to whom such restriction does not apply" (137). The same privileges, rights and exemptions apply to persons leaving animals, furniture, vehicles and the gear thereunto belonging, to be kept, boarded or cared for at a livery, boarding or sale stable, as are made to apply to lodgers and boarders under the Manitoba Distress Act (138); and they will therefore be liable to be distrained upon for rent due by the stable keeper to his landlord, only to the extent of the charges due to the stable keeper in respect thereof (139). If any superior landlord shall levy or authorize to be levied a distress on any furniture, goods or chattels of any boarder or lodger for arrears of rent due to such superior landlord by his immediate tenant, such boarder or lodger may serve such superior landlord or the bailiff or other person employed by him to levy such distress with a statutory declaration in writing made in accordance with the Canada Evidence Act by such boarder or lodger setting forth :— (a) That such immediate tenant has no right of property or beneficial interest in the furniture, goods or chattels so distrained or threatened to be distrained upon; (b) That such furniture, goods or chattels are the property or in the lawful possession of such boarder or lodger, and (c) What amount, if any, is due from the boarder or lodger to the immediate tenant for rent, board or otherwise (140). (137) 60 Vict. (Ont.), c. 15 Sch. A. (60); R.S.O. 1897, c. 170, s. 31. (138) R.S. M. 1891, c 46. (139) R.S.M. 1891, c. 91, s. 8. (140) R.S. M. 1891, c. 46, ss. 5, 8. A correct inventory of the goods is to be annexed to the declaration and to be signed by the boarder or lodger. Upon service of the statutory declaration he has the right to claim the release of his goods from the distress of the superior landlord on paying to him or his bailiff the amount, if any, due for board or lodging or such part as may be sufficient to discharge the claim distrained for. If the distress is proceeded with notwithstanding the service of the declaration, and after payment as aforesaid where the lodger or boarder is himself in arrear, he may replevy the goods (141). Quebec Statutory provisions. The lessor has for the payment of his rent and other obligations of the lease a privileged right upon the movable effects which are found upon the property leased (142). In the lease of houses the privileged right includes the furniture and movable effects of the lessee, and if the lease be of a store, shop, or manufactory, the merchandise contained in it. In the lease of farms. and rural estates the privileged right includes everything which serves for the labour of the farm, the furniture and movable effects in the house and dependencies, and the fruits produced during the lease (143). The right includes also the effects of the undertenant in so far as he is indebted to the lessee (144). It includes also movable effects belonging to third persons, and being on the premises by their consent express or implied, for sums which have become due by the lessee prior to the notification given to the lessor of the property rights of third persons, or before (141) R.S.M. 1891, c. 46, s. 6. (144) Civil Code 1621. |