Ejectment and Distress (Ireland) Act, 1846

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EJECTMENT AND DISTRESS (IRELAND) ACT 1846

CHAPTER CXI.

An Act to amend the Law in Ireland as to Ejectments and Distresses, and as to the Occupation of Lands.[¹] [28th August 1846.]

[Preamble.]

[Ss. 1–7 rep. 23 & 24 Vict. c. 154. s. 104.]

Sheriff, &c. may with consent of plaintiff execute a writ or decree for possession in ejectment, without the removal of the under-tenants or occupiers, on their signing acknowledgments according to forms in schedule (A.)

Execution of renewal of writ or decree in common form of law in certain cases.

8. [²] It shall be lawful for the sheriff or his bailiff or officer, upon the consent in writing of the plaintiff, or the attorney for the plaintiff, to execute any writ of habere facias possessionem in any action of ejectment or any civil bill decree for the recovery of the possession of lands and tenements, without removing therefrom or disturbing the possession or occupation of any under tenant or occupier who shall at the time of the execution of such writ or decree sign with his or her name or mark, attested by such sheriff or officer, an acknowledgment according to either of the forms (No. 1 and 2) in the schedule (A.) to this Act annexed, or as near thereto as the nature of the case will admit, which acknowledgment or acknowledgments shall be endorsed on or attached to such writ or civil bill decree, and shall not be subject to any stamp duty, and a copy thereof, if required, shall be delivered by the sheriff or his officer under his hand to the plaintiff, or his attorney; and the execution of any such writ or decree in the manner hereby authorized shall be as valid and effectual to all intents as if such writ or decree had been executed, and the possession of the premises had been delivered in common form of law; provided that in any such case, save and except where any such under-tenant or occupier shall have attorned as tenant to the plaintiff, pursuant to the form (No. 1) in the schedule (A..) to this Act annexed, it shall be lawful for the plaintiff, at any time within six calendar months from such execution of such writ or decree, on application to the court from which such writ of execution or decree issued, to obtain a renewal of such writ or decree to be again executed, at the cost and charge of such plaintiff, in common form of law, as to the whole or as to any part of the said lands; and such renewal shall be without prejudice to any right or interest vested in such plaintiff, by virtue of such first execution of such writ or decree.: Provided also, that nothing herein contained shall be construed to prevent any plaintiff from having any such writ or decree executed in common form of law, if he shall so think fit.

[S. 9 rep. 23 & 24: Vict. c. 154, s. 104.]

In all cases of distress for rent a written notice of the rent claimed, &c. shall be given.

Distress by persons entitled to rent not unlawful, though person legally entitled to reversion is not named in notice.

Distress not unlawful on account of mistake in amount in notice.

10. In all cases of distress for rent cognizable in any court, whether superior or inferior, the person making any such distress shall at the time of making such distress deliver to the person in possession of the premises for the rent of which such distress shall b₃ made, or, in case there shall not be any person found in possession, shall affix on some conspicuous part of such premises, a particular in writing of the rent demanded, specifying the amount thereof, the time or times when the same accrued, and the name and place of abode of the person by whom, and (if the person who acts in the making of the distress be not the party claiming to be entitled to the rent for which the distress is made) the name of the person by whose authority such distress is made, or otherwise such distress shall be unlawful and void: Provided always, that if the person by whom or by whose authority such distress shall be made shall be the party substantially and beneficially entitled to the rent, such distress shall not be unlawful or void by reason that the person having the legal estate in the reversion is not named in such notice: Provided also, that if any such distress shall be in other respects sustainable and well founded, the same shall not be unlawful or void by reason that the amount of rent demanded by such notice shall not be the exact amount due, if the misstatement of such rent in such notice shall have been made by mistake, and without fraud or malice, or want of reasonable care.

In cases of distress for rent a tender of the amount and costs before sale shall be sufficient to stay proceedings.

11. In every case of distress for rent a tender of the rent in arrear and of the charges of such distress at any time before the commencement of the sale of the property distrained shall be sufficient to stay the proceedings on such distress, and to entitle the person distrained upon to a return of the property so distrained; and the party whose goods shall be distrained shall be at liberty to plead such tender in bar to any avowry or cognizance, and shall be entitled to recover damages in an action on the case against the party by whom or by whose agent or bailiff the goods so distrained shall be withheld after such tender; and for the purposes of this Act the bailiff appointed in writing by the known agent or receiver of any landlord, or of the person substantially and beneficially entitled to the rent for which the distress shall be made, shall be deemed to be the bailiff of such landlord or person so entitled.

No; distress for rent shall be lawful, unless made by landlord or his agent or receiver, or by virtue of a warrant properly signed.

Warrant free from stamp duty.

12. No distress for rent made otherwise than by the landlord of any premises, or his known agent or receiver in person, shall be lawful, unless made by virtue of a written or printed warrant or order to distrain signed by the landlord or person substantially and beneficially entitled to the rent for which the distress shall be made, or his known agent or receiver, directing the bailiff or other person to distrain the tenant or tenants, person or persons, named therein, and bearing upon it the date when and the name of the place at which it is signed, nor unless such warrant or order shall be signed within twenty days next before the time when such distress shall be made: Provided always, that such warrant or order to distrain shall be free from the payment of any stamp duty.

[S. 13 rep. 38 & 39 Vict. c. 66. (S.L.R.)]

Party distraining for rent justly due not deemed a trespasser ab initio by reason of subsequent irregularity.

14. Where any distress shall be made for any rent justly due and any irregularity or unlawful act shall be afterwards done by the party distraining, or by his agents, the distress itself shall not be therefore deemed to be unlawful, nor the party a trespasser, ab initio, but the party aggrieved shall receive full satisfaction for the special damage sustained thereby, and no more, in an action of trespass or on the case: Provided always, that no tenant shall recover for such irregularity, if tender of amends hath been made by the party distraining, or his agent, before action brought.

No person making any distress for rent, taxes, rates, &c. where the sum due shall not exceed 20l. to take other charges than mentioned in the schedule (B.) annexed, nor to charge for any act, &c. not done.

Proviso where lower charges than those in schedule have been fixed by Act of Parliament.

15. [Recital.] No person whatsoever making any distress for rent, or for any raies, taxes, impositions, or assessments, where the sum demanded and due shall not exceed the sum of twenty pounds for and in respect of such rent, or rates, taxes, impositions, or assessments, save as herein-after provided, nor any person whatsoever employed in any manner in making such distress, or doing any act whatsoever in the course of such distress, or for carrying the same into effect, shall have, take, or receive out of the produce of the goods or chattels distrained upon and sold, or from the tenant distrained on, or from the landlord, or from any other person whatsoever, any other or more costs and charges for and in respect of such distress, or any matter or thing done therein, than such as are fixed and set forth in the schedule (B.) hereunto annexed, and appropriated to each act which shall have been done in the course of such distress; and no person or persons whatsoever shall make any charge whatsoever for any act, matter, or thing mentioned in the said schedule, unless such act shall have been really done: Provided always, that in any casein which a less amount than the amount specified in the said schedule shall have been prescribed by any Act or Acts of Parliament, or shall in pursuance of the provisions of or the power given by any Act or Acts of Parliament be specified in the warrant by which the distress or levy shall be made, such less amount only shall be demanded, taken, or levied for or in respect of such costs and charges, any thing in this Act to the contrary notwithstanding.

Party aggrieved by another taking higher charges than those mentioned in schedule (B.) may apply to a justice of the peace.

Justices at petty sessions may adjudge treble the amount of monies unlawfully taken to be paid, with costs.

16. If any person or persons whatsoever shall in any manner levy, take, or receive from any person or persons whatsoever, or retain or take from the produce of any goods sold for the payment of such rent, or taxes, rates, impositions, or assessments, any other or greater costs and charges than are mentioned and set down in the said schedule, or make any charge whatsoever for any act, matter, or thing mentioned in the said schedule and not really done, it shall be lawful for the party or parties aggrieved by such practices to apply to any one justice of the peace for the county, city, town, and acting for the division where such distress shall have been made or in any manner proceeded in, for the redress of his, her, or their grievance so occasioned, whereupon such justice shall summon the person or persons complained of to appear before the justices of the petty sessions for such district at a reasonable time to be fixed in such summons, and such justices shall examine into the matter of such complaint by all legal ways and means, and also hear in like manner the defence of the person or persons complained of; and if it shall appear to such justices that the person or persons complained of shall have levied, taken, received, or had other and greater costs and charges than are mentioned or fixed in the schedule (B.) hereunto annexed, or made any charge for any matter or thing mentioned in the said schedule, such act, matter, or thing not having been really done, such justices shall order and adjudge treble the amount of the monies so unlawfully taken to be paid by the person or persons so having acted to the party or parties who shall thus have preferred his, her, or their complaint thereof, together with full costs;

[S. 17 rep. 55 & 56 Vict. c. 19. (S.L.R.)]

No judgment to be given against any landlord unless he personally levies the distress.

Parties aggrieved not to be barred of other legal remedies, but determination of justices to be a bar to other proceedings.

18. Provided always, that nothing herein contained shall empower such justices to make any order or judgment against the landlord for whose benefit any such distress shall have been made, unless such landlord shall have personally levied such distress: Provided also, that no person or persons who shall be aggrieved by any distress for rent, taxes, rates, impositions, or assessments, or by any proceedings had in the course thereof, or by any costs and charges levied upon them in respect of the same, shall be barred from any legal or other suit or remedy which he, she, or they might have had before the passing of this Act, excepting so far as any complaint to be preferred by virtue of this Act shall have been determined by the order and judgment of the justices before whom it shall have been heard and determined,

Orders, &c. to be in form in schedule (B.)

Proof of orders.

19. Such orders and judgments on such complaint shall be made in the form in the schedule (B.) hereunto annexed, and may be proved before any court by proof of the signature of the justices to such order and judgment; and such orders, as regards persons who may have been summoned as witnesses shall be made in such form as to such justices shall seem most fit and convenient.

Brokers and others making any distress shall on demand give copies of their charges to the persons distrained.

Penalty for default.

20. Every broker, bailiff, or other person who shall make and levy any distress whatsoever shall, if the same shall be demanded by the party distrained, give a copy of his charges, and of all the costs and charges of the distress whatsoever, signed by him, to the person or persons on whose goods and chattels any distress shall be levied, although the amount of the rent, taxes, rates, impositions, or assessments demanded shall exceed the sum of twenty pounds, and upon default of so doing he shall be liable to forfeit any sum not exceeding forty shillings, to be recovered before any two justices of the peace acting for such district,

Printed copy of clauses of this Act as to costs of distresses to be hung up in sessions houses.

21. A fair printed copy of the clauses of this Act, and of the schedule (B.) thereto annexed, which regulate or relate to the costs of distresses, shall be hung up in some convenient place in such halls or rooms where the justices of each and every county, county of a city, or county of a town in Ireland hold either their quarter or petty sessions.

Interpretation clause.

22. In the construction of this Act and the schedules thereto annexed, unless there be something in the subject or context repugnant to such construction, words importing the singular number only shall include the plural number, and words importing the plural number only shall include also the singular number; words importing the masculine gender only shall include females; the word “landlord” shall extend to any number of persons, or to a body or bodies politic, corporate, collegiate, aggregate or sole, or to any number of persons associated together as a company or partnership; the word “lands” shall extend to lands, houses, tenements, or hereditaments; and the term “assistant barrister” shall extend to the chairman of the sessions of the peace for the county of Dublin and to the recorder of the city of Dublin.

Schedules part of Act.

23. The schedules to this Act annexed shall be deemed and taken to be part of this Act.

Extent of Act.

24. This Act shall extend only to that part of the United Kingdom called Ireland.

[S. 25 rep. 38 & 39 Vict. c. 66. (S.L.R.)]

SCHEDULES to which the foregoing Act refers,

Schedule (A.) [¹]. Sect. 8.

No. 1.

Form of attornment by under-tenants or occupiers of lands recovered in ejectment, upon the execution of a writ or civil bill decree for delivering possession, where the under-tenants attorn as tenants to the plaintiff.

Whereas A.B.              , of              , hath lately recovered judgment in ejectment [or obtained a civil bill decree] for the lands and tenements in the tenancy or occupation of the persons under-named respectively: Now we, whose names are hereunder subscribed, upon the execution of the writ of possession [or decree, if by civil bill] in the saidcause, according to the statute in that behalf, with the assent of the said A.B.              [or the attorney for the plaintiff] in the said cause, testified by the said attorney for the plaintiff signing these presents, do hereby severally and respectively attorn and become tenants to the said A.B.              of the several farms, lands, and tenements situate at the several places, and for the terms, and commencing at the times, mentioned and set opposite to our respective names in the schedule hereunder written, and do hereby severally agree to pay such respective rents for the same, and from such several periods or times as in the said schedule expressed; and we have severally given unto the said A.B.              , or his agent, the sum of one penny, in the name of attornment and in part of the said rents.

As witness our hands, this              day of

Attorney for the plaintiff.

Sheriff or sheriff’s officer.

Witness,

No. 2.

Form of acknowledgment by occupiers of lands recovered in ejectment upon the execution of a writ or civil bill decreed for delivery of possession, where the parties do not agree to an attornment as tenants.

Whereas A.B.              , of              , hath lately recovered judgment in ejectment [or a civil bill decree] for the lands and tenements in respective tenancy or occupation of the persons under-named respectively, amongst other lands and tenements: Now we, whose names are hereunder subscribed, upon the execution of the writ of possession [or decree              ] in the said cause, according to the statute in that behalf, with the assent of the said A.B.              [or the attorney for the plaintiff] in the said cause, testified by the said attorney for the plaintiff signing these presents, do hereby severally and respectively acknowledge that we respectively hold or occupy the lands and tenements now in our respective occupation as hereunder specified, by the leave and licence and for and on behalf of and at the will of the said A.B. ,              and that we will severally and respectively, when required by the said A.B. ,              or his authorized agent or receiver, deliver up to the said A.B.              , or his authorized agent or receiver, the possession of the said lands and premises in our respective occupation, as set opposite to our respective names in the schedule hereunder written.

As witness our hands, this              day of         .

Witness,

Attorney for the plain tiff.

Sheriff or sheriff’s officer.

Schedule (B.)

Sects. 16. 19, 21.

As to costs on distresses for rents, or rates, taxes, impositions, and assessments.

Form of the order and judgment of the justices before whom complaint is preferred, where the order and judgment is for the complainant.

In the matter of the complaint of A.B. against c.d. for a breach of the provisions of an Act of the ninth and tenth years of her Majesty Queen Victoria, intituled “An Act” [here insert the title of this Act], we, E.F. and G.H., justices of the peace for the county of              , and acting within the district of              , do order and adjudge that the said cd. shall pay to A.B. the sum of              , as a compensation and satisfaction for unlawful charges and costs levied and taken from the said A.B. under distress for rent, [or rates, taxes, impositions, or assessments, or as the case may be,] and the further sum of              , for costs on this complaint.

(Signed)        E.F.

G.H.

Form of the order and judgment of the justices, where they dismiss the complaint as unfounded, and with or without costs, as the case may be.

In the matter of the complaint of A.B. against cd. for the breach of the provisions of an Act of the ninth and tenth years of her Majesty Queen Victoria, intituled “An Act” [here insert the title of this Act], we, E.F. and ch., justices of the peace for the county of, and acting within the district of, do order and adjudge that the complaint of the said A.B. is unfounded, and the same is hereby dismissed; [if costs are given], and we do further order and adjudge that the said A.B. shall pay unto the said cd. the sum of              for costs.

(Signed)        E.F.

G.H.

Schedule of the limitation of costs and charges on distresses for small rents, or rates, taxes, impositions, or assessments, not exceeding twenty pounds.

* * * * * * *

[¹ See notes to title of Act, and to section 8.]