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1850.

should be referred to the assessments under schedule(A.) or schedule (D.). I therefore think there is no estoppel.

KEPP

WIGGETT.

TALFOURD, J. I am entirely of the same opinion. It is clear upon the facts stated in the case, that Lee never was armed with legal authority to receive the sums assessed under schedule (D.) of the income-tax act. The warrant afterwards given to Pugh, which is set out in the case, shews what was required to make the collection lawful.

Judgment for the plaintiffs for 521. 4s. 6d.,

the amount of the sums collected by Lee under schedule (D.).

BROWN V. ARUNDELL.

Nov. 5.

Goods sent to THE first count of the declaration was in trover for an auctioneer

certain goods and chattels of the plaintiff; the for sale on

second was in case for not selling for the best price goods premises occupied by taken as a distress for rent; the third, for selling without him, are

appraisement. privileged from distress Plea, not guilty, "by statute.” for rent; al- The cause was tried before Pollock, C. B., at the though the place of sale

last assises at Hertford. The facts were as follows:is merely The defendant was lessee for a term of years of The hired for the Turf Hotel, at St. Albans. One Coleman had formerly occasion, or the occupa- kept the hotel; but, having got into difficulties, he tion has been had retained possession of “the tap” only, — the rest acquired by the auctioneer

of the premises being let to two persons named Quick by an act and Dell. The premises being at the time in question of trespass.

unoccupied, the key was left at the tap; and, Coleman's son, in the absence of his father, without (as it appeared) any authority from any one, gave the key to one Page, 1850. who thereupon took possession of one of the empty

BROWN rooms of the hotel, and placed goods in it for the purpose of selling them by auction,-amongst others, the ARUNDELL. goods in question in this action, which were the property of the plaintiff. The defendant being informed that the goods were there, immediately distrained them for rent alleged to be due to him, in respect of the premises, from Quick and Dell. The goods were appraised, and (those belonging to the plaintiff) ultimately sold for 521. Witnesses called for the plaintiff, valued the goods at from 701. to 1001.

On the part of the plaintiff, it was insisted, upon the authority of Adams v. Grane (a), that the goods, at the time of their seizure, were privileged from distress.

The lord chief baron was of that opinion, and accordingly directed the jury to find for the plaintiff on the first and second counts, and for the defendant on the third.

The jury thereupon found for the plaintiff on the first count, with 521. damages; also for the plaintiff on the second count, with 281. damages; and, on the third count, for the defendant.

M. Chambers (with whom was Hawkins), pursuant to leave reserved to him at the trial, now moved for a rule nisi to enter a nonsuit. The rule laid down in Adams v. Grane, – that goods sent to an auctioneer to be sold upon premises occupied by him, are privileged from distress for rent,-is one that is established for the general benefit and protection of trade: it does not apply to a case where a room, not being a public auction-room, is hired for a mere casual sale. (Maule, J. What constitutes a public auction-room? Must it be

(a) i C. & M. 380., 3 Tyrwh. 326.

1850.

BROWN

ARUNDELL

held in fee-simple? or for a long term of years ? or
what?] It must be a place where the auctioneer
carries on his ordinary business. [Williams, J. In
Findon v. M*Laren(a), to a plea in trover for a car-
riage, alleging that it was taken on the premises of B.
as a distress for rent due from him, the plaintiff replied
that B. was a coach-maker and a commission-agent for
the sale of carriages, and exercised that trade on the
said premises, and was employed by the plaintiff, in
the way of his said trade and business, for certain
commission, to expose for sale, and sell, the carriage
on the said premises, and the plaintiff had delivered the
carriage to B. for the purpose that he might there
expose for sale and sell the same for the plaintiff, in
the
way

of his said trade and business, for certain commission, and B. had the same on the premises for that purpose, and the same remained thereon, to be managed, dealt with, sold, and exposed for sale, as aforesaid, in the way of B.'s said trade and business, and not otherwise, until the time of the distress: and it was held, that goods in the hands of a commission-agent for sale in the way of his business are exempted from distress; and, on special demurrer, that the exemption was here sufficiently pleaded.] No doubt, goods sent to a factor for sale upon his premises, are exempt. But, here, the room in which the goods were placed, was not the place of business of Page. [Maule, J. Adams v. Grane is not distinguishable from the present case.] Coleman the son had no authority to let Page into possession: the latter was a mere trespasser. [Jervis, C. J. How can that affect the privilege? If it could, the privilege would cease, if the auctioneer were to hold over after the expiration of a lease or a notice to quit.] No case has ever decided, that, where

(a) 6 Q. B. 891.

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an auctioneer is guilty of a trespass in placing goods upon another man's premises, the goods so placed are privileged from being distrained. [Maule, J. I see no ground for making this case an exception out of the general rule. Trespassers do not lose all their rights. Besides, for anything that appeared here, nobody objected to Page's taking possession. Quick and Dell did not: and Coleman had no right to object.]

JERVIS, C. J. It is admitted that this case is governed by Adams v. Grane, unless the circumstance of the auctioneer having obtained possession of the room in question by means of what is called an act of trespass, creates a distinction. I do not think the evidence raises that question. And, if it did, I think there is no foundation for the suggestion. It is not to be tolerated that the application of a rule of general convenience is to depend upon whether or not the auctioneer is a trespasser. I am of opinion that there should be no rule.

The rest of the court concurring,

Rule refused.

Ex parte John O'NEILL.

Nov. 23. ON

N the 24th of February, 1849, a judgment was A warrant of recovered against John O'Neill in the Clerkenwell commitment

for contempt, county-court of Middlesex, for 9s, 3d. debt, and 4s. 2d.

under the

9 & 10 Vict. c. 99., for non-appearance on a judgment summons, is regular, though issued more than six months after the date of the judge's order, notwithstanding, that, by the 37th rule of practice of county-courts, a warrant is to be current only for two months after its date.

1850.

Ex parte O'NEILL.

costs, to be paid at the rate of 38. every four weeks, commencing with the 14th of March. On the 8th of April last, a summons was obtained, under the 98th section of the statute 9 & 10 Vict. c. 95(a), calling upon O'Neill to appear before the judge, to answer certain questions: and, as he neglected to attend on the day appointed (the 19th), the judge, upon proof of the service of the summons, on that day made an order for his commitment, pursuant to s. 99. (6) to the house

as

(a) Which enacts “that it perty and means he still hath, shall be lawful for any party of discharging the said debt or who has obtained any unsatis- damages or liability, and as to fied judgment or order in any the disposal he may have made court held by virtue of this of any property; and the person act, or under any act repealed obtaining such summons by this act, for the payment of aforesaid, and all other witany debt or damages, or costs, nesses whom the judge shall to obtain a summons from any think requisite, may be exacounty-court within the limits mined upon oath touching the of which any other party shall inquiries authorised to be made then dwell or carry on his bu- as aforesaid ; and the costs of siness, - such summons to be such summons and of all proin such form as shall be directed ceedings thereon shall be deemed by the rules made for regulating costs in the cause." the practice of the county-courts (6) Which enacts," that, if as herein provided, and to be the party so summoned shall not served personally upon the attend as required by such person to whom it is directed, summons, and shall not allege a

requiring him to appear at sufficient excuse for not attendsuch time as shall be directed ing, or shall, if attending, reby the said rules, to answer fuse to be sworn, or to disclose such things as are named in any of the things aforesaid, or such summons; and, if he shall if he shall not make answer appear in pursuance of such touching the same to the satissummons, he may be examined faction of such judge, or if it upon oath touching his estate shall appear to such judge, either and effects, and the manner and by the examination of the party circumstances under which he or by any other evidence, that contracted the debt or incurred such party, if a defendant, in inthe damages or liability which curring the debt or liability is the subject of the action in which is the subject of the which judgment has been ob- action in which judgment has tained against him, and as to been obtained, has obtained the means and expectation he credit from the plaintiff under then had, and as to the pro- false pretences, or by means of

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