CASES DETERMINED BY THE SUPREME COURT OF NOVA SCOTIA, DURING THE TERM DECEMBER 14th, 1880, TO APRIL 5th, 1881. MCNAB v. SHORTLAND. THE Assignee of a judgment recovered by the plaintiff against the defendant duly recorded the certificate of judgment and the assignment in the Registry of Deeds. The plaintiff afterwards undertook to deal with the judgment as his own and signed a satisfaction piece which was also recorded. A rule nisi was taken at the instance of the assignee to set aside the satisfaction piece, but the Court declined to interfere, considering that the remedy must be sought in, the Equity Court. In this case a rule nisi was taken out at the instance of Almon & McIntosh to set aside a satisfaction piece obtained and recorded under the following circumstances: The plaintiff had obtained a judgment against the defendant, which he assigned to Almon & McIntosh, by whom both the certificate of judgment and the assignment were recorded. The defendant undertook afterwards to sell the property against which the judgment was recorded, and the purchasers, on looking into the title failed to notice the assignment, and procured a satisfaction piece from the plaintiff, which they recorded. The rule nisi to set aside the satisfaction piece came on for argument December 15th, 1880, before SIR WILLIAM YOUNG, C. J., DESBARRES, SMITH, JAMES and WEATHERBE, JJ. Ritchie, Q. C., arguing for rule was stopped by the Court. DESBARRES, J.-Is this the proper place to try. that? It is a fraud. I have no doubt you have a remedy. WEATHERBE, J.-I don't think there is any authority for this proceeding at all. Ritchie, Q. C.-If your Lordships think I ought to go into the Equity Court I have no objection; it will be expensive. YOUNG, C. J.-I don't think we can touch it. Rule discharged. INGLIS v. GREENWOOD ET AL. PLAINTIFF brought an action of replevin for certain goods seized under a warrant of distress for water rates claimed by the City, and the writ alleged an unjust detention, but contained no allegation of an unlawful taking. Defendant deuied the detention, and pleaded a second plea, justifying under a distress for water rates, to which plaintiff replied, disputing the liability. Held, that as there was no complaint in the writ of an unlawful taking, and 'no proof of a demand of the goods by plaintiff he could not recover in this form of action. THIS was an action of replevin tried before WEATHERBE, J., for detaining goods seized under a warrant of distress for water rates alleged to be due to the City of Halifax. Defendant pleaded that he did not unjustly detain the goods, and also justified the detention on the ground that the plaintiff was indebted to the city for water rates. Plaintiff joined issue on the first plea and replied denying his indebtedness for water rates. Judgment was pronounced in favor of the defendants, and a rule to set the judgment aside was argued last term before DESBARRES, SMITH, JAMES and WEATHERBE, J J. Bell, for rule.-There was no need for the plaintiff to give evidence of Greenwood being the duly appointed Treasurer of the City of Halifax or of Gibson being the duly authorized agent, because it is set up in the second plea by way of justification. There was here a sufficient taking proved to constitute a distress. Wood v. Nun, 5 Bing., 10. An intention to distrain with something to indicate the intention is required. A very slight act is sufficient. Hutchings v. Scott, 2 M. & W., 809; Swan v. Earl Falmouth, 8 B. & C., 456; Cramer v. Mott, L. R., 5 Q. B., 357. Originally a landlord was deemed a trespasser unless he removed the goods immediately. This was considered a great hardship on the tenant, and to remedy it 11 Geo. 2, chap. 19, sec. 10, was passed. Under that Act it has been held that the landlord must select a room in the house and remove the goods distrained to it, converting it into a pound, unless the tenant consents to their being left where they are. When the tenant consents to the goods being left where they are it is a sufficient impounding, and as it is for the benefit of the tenant slight evidence will do. Here there was an agreement. 8 E. & B., 337; 11 East., 405; Kirby v. Harding, 6 Exch., 234. It was the same as if the goods had been taken off the premises and impounded somewhere else. Graham, contra.-I contend that there is not sufficient evidence of detention to support the action of replevin. The cases cited are altogether of trover and trespass. Here there must be the same evidence of detention that would be required in an action of detinue. Revised Statutes, (2nd Series,) chap. 134, sec. 171, p. 511. The form of writ was not changed. By the 3rd Series replevin can be brought for an unlawful taking. A taking and a detention are recognized as distinct things. The unlawful taking must be alleged. What is alleged here is an unlawful detention, which is denied, and they cannot avail themselves of the statute which enables replevin to be brought for an unlawful taking, unless it is included in their writ. Previously replevin could not be brought, and it will not lie now unless it comes within the writ. This is not a case of distraint for rent, but under a statute for water rates. The same evidence must be given under this writ as under the former statute. A demand must be proved. Addison.on Torts, 439. There is no evidence of a detention. As to the nature of the act to constitute a levy, see Reynolds v. Ayres, 5 Allen N. B. Reps., 333; 2 Pugs. & Bur., N. B. Reps., 443. As to evidence of taking, see 8 Price, 95; 1 M. & S., 711; Nash v. Dickinson, L. R., 2 C. P, 252; 8 Q. B., 701. As to 3 meaning of word distress, Co. Litt., Lib. 2, 96. (DESBARRES, J. -The case is entirely different from a distress for rent. WEATHERBE, J.-The cases cited are all under distress for rent. Our statute does not give the right to impound. Bell. It is implied that the goods may be left. The two statutes authorize the distrainer to do the same thing.) There is no evidence of the detention of any particular goods. (Sedgewick, with Bell.-The goods are identified by the list of goods accepted by the Court to save the trouble of writing the articles out. The witness swore he levied on all the goods in the list. The list corresponds with that in the declaration. The list is a part of the Judge's minutes.) That could only be done by consent. (DESBARRES, J.-It depends altogether on the Judge.) No notice of action was given. City Laws, p. 83, sec. 276. Bell, in reply, cites Addison, 489. Both statutes authorize the distrainer to leave the goods on the premises. There was no necessity here to prove a demand and refusal. That is only necessary where the original possession in the defendant was lawful; it is never necessary where the taking is tortious. Addison on Torts, 489. Both the English statute and the City Charter authorize the distraining party to make the distress, and, at his option, to leave the goods on the premises or remove them; the construction put upon the former should be put upon the latter also. If this is not a good levy, then if a party wishes to bring an action of replevin, he must insist on the bailiff turning him out of doors or remaining in the house. Where the city, with the consent of the distrainee leaves the property in the house, that, as between the parties, is a good levy. WEATHERBE, J., now, (January 8th, 1881,) delivered the judgment of the Court: The only evidence produced on the part of plaintiff was that of one of the defendants, Gibson, who said; "I know plaintiff's residence. Lives corner of North Park and Cornwallis Streets. I took possession. Levied on the property in this list in plaintiff's house,-his property. The other defendant, E. G. W. Greenwood, ordered me to do this. These goods were replevied by the sheriff and there was no sale. I would have sold them. Inglis resided in his present place about four years. I am collector of taxes and water rates. It is part of my duty to leave notices under statute. I left notices on Inglis. I have a knowledge that plaintiff never paid any water rates for four years. E. G. W. Greenwood has always acted as City Treasurer during that period for four years and seven months. I have been under him. My instructions were a warrant of distraint. October preceding my levy I left a paper at plaintiff's residence,-Mr. Inglis's. |