1850.

KEPP

v.

WIGGETT.

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

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 52l. 4s. 6d., the amount of the sums collected by Lee under schedule (D.).

Nov. 5.

an auctioneer

for sale on premises

BROWN V. ARUNDELL.

Goods sent to THE first count of the declaration was in trover for certain goods and chattels of the plaintiff; the second was in case for not selling for the best price goods. taken as a distress for rent; the third, for selling without appraisement.

occupied by him, are privileged from distress

for rent; although the

place of sale is merely

hired for the

occasion,

Plea, not guilty, "by statute."

The cause was tried before Pollock, C. B., at the last assises at Hertford. The facts were as follows:The defendant was lessee for a term of years of The Turf Hotel, at St. Albans. One Coleman had formerly 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 and Dell. The premises being at the time in question unoccupied, the key was left at the tap; and, Coleman's son, in the absence of his father, without (as it appeared)

by an act

of trespass.

any authority from any one, gave the key to one Page, who thereupon took possession of one of the empty rooms of the hotel, and placed goods in it for the purpose of selling them by auction,-amongst others, the 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 70%. to 1007.

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 287. 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) 1 C. & M. 380., 3 Tyrwh. 326. *

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 carriage, 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.

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,

1850.

BROWN

V.

ARUNDELL.

Rule refused.

Ex parte JOHN O'NEILL.

Nov. 23.

ON the 24th of February, 1849, a judgment was A warrant of

recovered against. John O'Neill in the Clerkenwell county-court of Middlesex, for 9s. 3d. debt, and 4s. 2d.

commitment for contempt, 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 3s. 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. (b) to the house