LAW OF DISTRESS AMENDMENT BILL. (Hansard, 14 July 1908)

§ LORD COURTNEY OF PENWITH
My Lords, the object of this Bill is to amend the law as regards a landlord's right of distress. I think I may almost describe it as a reply to an invitation from the Judicial Bench. As your Lordships are aware, the law of distress in its primary form enabled the landlord to seize on any goods in place of rent due. The extreme severity of that law was alleviated long ago, and the Act of 1871 exempted from seizure the goods of lodgers, excepting in so far as they were in arrears of rent to their immediate landlord. That left the general law in a condition that required a good deal of amendment and a strong case that happened two years ago drew special attention to it.
572 Your Lordships will probably remember the incident. A society of artists entered into an agreement with a person to hold an exhibition of their productions in a hall in the West End, and scarcely had their pictures been stored there than the superior landlord seized them in distress to meet the rent due to him from the immediate landlord of the society. The case was brought before the Courts, and Mr. Justice Neville expressed a strong opinion upon the barbarity of the law, and said it was a scandal that it should remain in that condition unamended. He was constrained, however, to allow the right of the superior landlord to be exercised. The case was carried to the Court of Appeal where the same language was held in respect to the state of the law and the necessity of amending it.
The present Bill is intended to move in the direction indicated, if I may say so, by members of the Judicial Bench. It proposes practically to place all tenants in the position in which lodgers are placed under the Lodgers' Goods Protection Act of 1871, and to exempt their goods from seizure by the superior landlord, except so far as the tenant might be in arrear to the immediate landlord. To that extent the superior landlord would be entitled to seize and make good his claim. I think the principle of the Bill will recommend itself to your Lordships' approbation. The Bill does ensure the result aimed at, though I must admit that the form of it may require some attention. It is, in fact, an illustration of that form of drafting to which the attention of your Lordships was recently drawn and which is open to much criticism. It is an illustration of drafting by reference, but I hope that objection to the form of the Bill will not interfere with the acceptance of the Second Reading in order that in Committee it may be put into a shape that will more recommend itself.
The observations made from the Judicial Bench in the case to which I have referred excited the attention of many people. When I read them I thought the amendment of the law which was invited by Mr. Justice Neville and the Judges of the Appeal Court might reasonably be introduced into your Lordships' House. I therefore drafted a Bill for the purpose. I recognised, however, 573 that any Bill introduced in your Lordship's House would stand no chance of becoming law, owing to the state of business in the other House, unless it received the support of His Majesty's Government. I subsequently observed that a Member of the other House had taken up the subject and introduced a Bill, and thereupon I readily agreed not to proceed further with my own project. The hon. Member who had charge of the Bill did not secure a good place in the ballot, and the only way in which it was possible to pass the Bill was by presenting it to the other House in the form in which it has now reached your Lordships. It has been considered there very carefully. It was read a second time and referred to one of the Grand Committees, where it was gone into in great detail. A readiness was expressed—I do not know that I can put it higher—on the part of the representative of the Government to entertain the notion of a Consolidating Bill to amend the law of distress, which would incorporate the present Bill and the Act of 1871 in one measure.
But I appeal to your Lordships to give this Bill a Second Beading on account of its merits, so that we may have an opportunity in Committee to put it in a shape which may commend it to your Lordships generally. I should be happy to confer between now and the Committee stage with any of your Lordships who might do me the honour of making suggestions as to the form of the Bill. I certainly hope that this scandalous state of the law will not remain unamended for another year. I beg very confidently to recommend the principle of the Bill to your Lordships.

§ THE LORD CHANCELLOR
My Lords, I do not want to interpose between the noble Lord and the House, except to say that though this is not a Government Bill, it is one which the Government support, simply because it gives fair play. I hope that your Lordships will distinguish between form and substance. The question of form is, after all, a small matter. The Bill is drawn on the basis of assimilating other persons to lodgers. It might have been drawn 574 otherwise, and have been placed alongside a Consolidating Bill in the same way as the Patents Bill was a year and a-half ago. As to the question of form, we can correct that. The point is whether it is right in substance. Surely it is right. I do not want to dogmatise, but I think everybody will hold that.
At present the general law is that the landlord may distrain on any goods he finds on the premises, whether they belong to the tenant or not, in order to pay the rent due by the tenant alone. In other words, the property of one man may be taken to pay the debt of another. That is very cruel indeed in operation, as was exemplified in the case of the Society or Artists to which reference has been made. They had placed their pictures in the hall for the purpose of selling them, and had paid the rent for the use of the hall; yet down came the superior landlord and seized their pictures and sold them because his tenant had not paid him. That is revolting, I venture to think, to all lovers of fair play.
May I read two or three sentences from what was said by Lord Blackburn as to how this extraordinary law came to be the law of England. The learned Judge said— The general rule of common law was that whatever was found on demised premises, whether belonging to a stranger or not, might be seized by the landlord and held as a distress till the rent was paid or the service performed. That was the old law, and it produced no harm. But in the reign of William and Mary a very harsh and unjust law was passed by which the right was given to the landlord to sell goods seized, and to apply the proceeds to the payment of the rent unless the tenant or owner of the goods first paid it; and this held out a great temptation to the landlord to seize goods although he knew they were not the tenants.' I do not believe most landlords would seize the goods of a stranger which were upon their tenants' premises. It is wrong, hard, and unfair, that that should be done. There are exceptions to that harsh rule which have been engrafted upon it from time to time, so that the enactment has been eroded a good deal. The principle of the Bill is one of elementary fairness, and one which will, therefore, appeal to your Lordships.

§ LORD ASHBOURNE
My Lords, while I have no intention of offering any objection to the Second Reading of the 575 Bill I was glad to recognise in the candid and temperate statement of Lord Courtney that he was aware of the fact that the Bill requires consideration and amendment. No one would seek to defend at this time of day the right to seize one man's property for another man's debt. Efforts have from time to time been made, as the noble and learned Lord on the Woolsack said, to meet this harsh rule in certain cases. The most notable is the Act of 1871, known as the Lodgers' Goods Protection Act. That Act gave protection in respect of lodgers' goods, and is in beneficent operation. But this Bill is clumsy and awkward, and in some particulars may not be quite defensible. I do not doubt that it represents an honest desire to deal with the problem; but when it comes to be considered it will be found to need alteration. After all, landlords are not to be treated as outlaws. There may be cases in which they have a legitimate right to appeal to this old law of distress, and, therefore, that law should not be too drastically dealt with. I noted the noble Lord's statement that he had applied his own skill to drafting a Bill. It would be very interesting if the noble Lord's Bill could be put side by side with this one, and perhaps he will give us an opportunity of doing so.

§ VISCOUNT ST. ALDWYN
My Lords, before we part with the Second Reading of this Bill I think it would be useful to call the attention of your Lordships to its extraordinary drafting, which has been already admitted by the noble Lord in charge of the measure. It is one of the worst specimens of drafting by reference that I have ever seen. The Act which it is proposed to amend is the Lodgers' Goods Protection Act of 1871. I hold that Act in my hand. The enacting part of it, omitting the preamble, takes less than a page of the Statute-Book. It consists of no more than three enacting clauses, which this Bill proposes to amend.
How does it propose to amend them? In the first place, wherever the word "lodger" occurs in the existing Act, certain other words are to be substituted. The word "lodger" occurs fourteen or fifteen times in the forty-five lines of 576 the original Act. Next the Bill proposes to strike out six lines of the first section of the existing Act, and to substitute ten lines for them. It strikes out three lines in the second section of the Act, and substitutes five lines for them. Then it leaves out the whole of the third section in the Act, and substitutes a much longer one; and, finally, it contains a new clause altogether excluding certain goods. Then there is the short title and the construction of the Act. If it were intended to frame a Bill from which it should be impossible for anyone to ascertain the law, that purpose could not have been carried out better than in this Bill. No one, whether lawyer or not, could possibly ascertain from it what the law is without having the other Act also in his hand.
After what has been said by the noble and learned Lord on the Woolsack I should hope that, assuming the House is prepared to accept this Bill as it stands—I do not know whether it is or not—His Majesty's Government would take up this question, repeal the Act of 1871, and bring in a complete Bill enacting the law as it is proposed to be amended by this Bill. I must say that if we are in this House to fulfil our duty as a revising Chamber, we should never find a better case for its exercise than is afforded by this Bill. I hope that is the course which His Majesty's Government will follow. I also trust that, after what has been said recently from both sides of the House as to the evils of legislation by reference, some practical step will be taken to show the other House and those concerned that, at any rate, we do not approve of this evil system.

§ *THE EARL OF CREWE
My Lords, I am in entire agreement with everything that has fallen from the noble Viscount, both as regards the form of this particular Bill and on the general subject of legislation by reference; but I confess I am a little nervous when he asks us to take up a private Bill, after what fell from the noble Marquess yesterday, even when the object is such a good one as this Bill has in view. I therefore cannot make any promise of that kind, but I am sure that if the noble Viscount devoted himself to wording it he would 577 do it quite as well as, if not better than, we could. I agree that if the Bill is to leave your Lordships' House it ought to leave it, though not in substance, at any rate in form, very different from what it is at present.

§ THE DUKE OF NORTHUMBERLAND
My Lords, I do not wish to trouble your Lordships with a subject which is much better dealt with by lawyers than by laymen, and I had hoped that some noble Lord would have called attention to the matter of this Bill as well as to its form. I do not consider the matter is quite so simple as some noble Lords seem to think. I suppose we all agree that hard cases such as that mentioned by Lord Courtney ought to be remedied; and if the Bill had been confined to dealing with cases of that sort I think we should all have agreed. But I must point out that it goes a great deal further. Under the Bill a ground landlord may be placed in a serious difficulty if the person to whom he had let land on a building lease disappears after having obtained a premium from a tenant to whom the property had been sub-let without the landowner having any voice in the matter.

§ THE LORD CHANCELLOR
He could take possession of the property. A landowner letting land on lease or otherwise always reserves the power of re-entry in the event of the rent not being paid, and if the ground rent were not paid he would take possession of the property with the improvements upon it. That is what makes ground rents such a valuable property.

§ THE DUKE OF NORTHUMBERLAND
If the noble and learned Lord says that, of course I accept it; but I was informed that there was no protection for the ground landlord in the Bill.