[*120

Cottingham now moved accordingly. The justices have not exceeded the authority given them by the acts of parliament relating to this subject. By the 20 G. 2, c. 19, (extended so as to include cases of this description by 31 G. 2, c. 11, s. 3,) a justice or justices are empowered, upon complaint by any servant or workman there mentioned, on oath, to make an order for the payment of wages, and to enforce the same, if not complied with by the master within twenty-one days, by warrant of distress. By 4 G. 4, c. 34, s. 5, referring to the above statutes, such order is declared to be final. And by 5 G. 4, c. 18, s. 2, it is enacted, that in case it should appear, by the confession of the party, that he has not sufficient goods whereon a distress can be levied, "such justice or justices may issue forth his or their warrant for committing such offender to the common gaol, for any term not exceeding three months, unless the sum adjudged to be paid, and all costs and charges of the proceedings, shall be sooner paid: provided always, that the amount of such costs and expenses shall be specified in such warrant of commitment." All the requisites contained in the acts of parliament were strictly complied with. It is true, there was no commitment in writing made out at the time when the plaintiff was taken to prison; but it was not necessary that the warrant should be made out at that precise moment, the doing of which, in many cases, would be impossible. It is sufficient if a commitment be made out within a reasonable time, so as to afford the party complaining, after having called for the proceedings, the means of proving any irregularity therein. The objection is one strictissimi juris, and not to be favoured. In the case of a *conviction, [*121 Abbott, C. J., in Basten v. Carew, 3 B. & C. 652, states it to be a general rule and principle of law, "that where justices of the peace have an authority given to them by an act of parliament, and they appear to have acted within the jurisdiction so given, and to have done all that they are required by the act to do, in order to originate their jurisdiction, a conviction drawn up in due form and remaining in force, is a protection in any action brought against them for the act so done." Justices may draw up convictions, not only after the penalty is levied, but even after action rought, Massey v. Johnson, 12 East, 67, Gray v. Cookson, 16 East, 13: and may even alter such a conviction, after a certiorari has issued to remove it into this Court, Rex v. Barker, 1 East, 186, Rex v. Allen, 15 East, 343.

PARKE, J. The statute 5 G. 4, c. 18, s. 2, enacts, that in the case there specified "it shall be lawful for the justices to issue a warrant for committing such offender." That must mean a warrant in writing, for the amount of costs and expenses is to be specified in the commitment. In Hawkins, P. C., book 2, c. 16, s. 13, it is said that a commitment must be in writing, under the hand and seal of the person by whom it is made, and expressing his office or authority, and the time and place at which it is made, &c. It is true it need not be immediately made out; the detention of the party during the time necessarily required to make it out would be justifiable, but it should be as soon as possible. Here several days elapsed. A commitment is in no respect like a conviction. That is only the *entering on parchment the proceedings of the Court which have already taken place: it is like recording a judgment in a [*122 superior court. But if a justice may imprison without a commitment in writing, it may as well be said that a sheriff may seize the goods of a defendaut before the fieri facias be made out.

TAUNTON, J. I am of the same opinion. The commitment is not mere matter of form. By not having the causes of his commitment duly stated, the party imprisoned is, for the time, deprived of the benefit of a writ of habeas corpus.

PATTESON, J. The second section of 5 G. 4, c. 18, authorizes judges to issue a warrant. That manifestly means a warrant in writing. I cannot think that the warrant may be made at any time. The statute does not say in express

terms that the warrant shall be in writing, but it does so in effect, for the amount of costs and expenses is to be specified in the commitment.

Rule refused.

WRAY, Assignce of CATTON, v. The Earl of EGREMONT. Nov. 6th.

By the insolvent act 7 G. 4, c. 57, s. 31, no distress for rent made and levied after the arrest of any person who shall petition the court for the relief of insolvent debtors for his discharge, upon the goods or effects of such person, shall be available for more than one year's rent. A distress taken before, but not sold till after the arrest of such insolvent debtor, is available for more than a year's rent.

ASSUMPSIT by the plaintiff, as assignee of the estate and effects of one Catton, an insolvent debtor, for money had and received. Plea, non assumpsit. At the trial before Parke, J., at the last assizes for the *county of York, *123] it appeared that the insolvent had for some years been tenant of a farm to the defendant, at a rent of 1157., payable half yearly, and that, the rent for two years and a half being in arrear at Lady Day, 1831, the defendant on the 29th of August in that year distrained for the same. On the 30th of August, Catton was arrested by the plaintiff for a debt of 1507.; he was committed to York gaol, and signed a petition to the court for the relief of insolvent debtors, pursuant to the statute 7 G. 4, c. 57; and, on the 3d day of September, gave notice of his having done so to the defendant's agent, and required him not to sell for more than a year's rent. The goods were sold, under the distress, on the 5th of September, and produced 2007. 19s., and there remained in the defendant's hands, after deducting thereout the expenses of sale and one year's rent, the sum of 747., to recover which the present action was brought. The learned Judge was of opinion that the defendant was entitled to retain the whole sum, inasmuch as the distress had been made before the arrest; and he nonsuited the plaintiff.

Campbell now moved to set aside the nonsuit. The 7 G. 4, c. 57, s. 31, (a) enacts, that no distress for rent made and levied upon the goods of an insolvent, after his arrest, shall be available for more than one year's rent. The words *124] "made and levied" are in the corresponding *clause of the bankrupt act, 6 G. 4, c. 16, s. 74. Here the distress was made before, but not levied till after, the arrest of the insolvent. Now a distress is made as soon as the bailiff enters on the premises, but it is not levied until a sale takes place, and the property in the goods remains in the tenant till sale, though as soon as they are seized they are a security to the landlord for his rent, and continue so until the sale. So, a person who had issued a fi. fa., under which the sheriff had seized, but not sold, when the debtor became bankrupt, has been held to be a creditor having security for his debt within the meaning of 6 G. 4, c. 16, s. 108, and not entitled to the proceeds on a subsequent sale by the sheriff. (Notley v. Buck, 8 B. & C. 160.) Now an execution gives an immediate right to sell; a distress gives a right to sell only at the end of five days. The goods, therefore, continued the property of the insolvent, when he made the assignment to the plaintiff; and the latter is entitled to recover.

PARKE, J. But for the Insolvent act, the landlord was entitled to sell the

(a) Sect. 31 enacts, "That no distress for rent made and levied after the arrest or other commencement of the imprisonment of any person who shall petition the said court for his discharge from such imprisonment, according to this act, upon the goods or effects of any such person, shall be available for more than one year's rent accrued prior to the execution of the conveyance and assignment by such person in pursuance of this act, but that the landlord or party to whom the rent shall be due, shall and may be a creditor for the overplus of the rent due, and for which the distress shall not be available, and entitled to all the provisions made for creditors by this act."

goods of the tenant for all the rent due. That right can only be cut down by the statute. It enacts, that no distress made and levied after the arrest shall be available for more than a year's rent. Here the distress was made before the arrest of the insolvent debtor. It is not a case, then, within the words of the act. The common law right, therefore, of the landlord, is not affected by it, and he was entitled to sell the goods distrained, to a sufficient amount to satisfy the whole rent.

was correct.

[*125

TAUNTON, J. I think the opinion delivered by the learned Judge at the trial The statute says, that no distress made and levied after the arrest, &c., *shall be available for more than a year's rent. To bring a case within that provision, the distress must be made after the arrest. Here it was made before the arrest of the insolvent: and if it was once rightfully made, this is analogous to the case of an execution issued before an act of bankruptcy, on a judgment obtained in the ordinary way; and in such case, if the goods be seized before the act of bankruptcy, the execution may be completed by the sale of goods afterwards; though in the case of a judgment by default, confession or nil dicit, it would be otherwise, but that is by reason of an express provision by statute. So, here, the distress having been made before the arrest, the landlord was entitled to sell afterwards.

PATTESON, J. The statute applies to cases where the distress is made and levied after arrest of the insolvent. Here it was made before. I doubt whether the word levied has, in this statute, any meaning different from the word made. The 21 Jac. 1, c. 19, s. 9, enacts, "that all creditors having security for their debts by judgment, &c., whereof there is no execution or extent served and executed upon any of the lands, &c., of the bankrupt, before he shall become bankrupt, shall not be relieved upon any such judgment, &c., for more than a rateable part of their debts, &c., with the other creditors of the bankrupt." Now it has been held that the words served and executed have the same meaning; and that an execution commenced by seizure before, but not finished till after, the act of bankruptcy is committed, was served and executed within the meaning of the statute. (a)

Rule refused.

*DOE dem. MARGARET and JANE DALTON v. JONES and

Another. Nov. 6.

[*126

A private dwelling-house was demised for forty years, by lease, containing a covenant to repair and keep in repair the premises, and all such buildings, improvements, and additions as should be made thereupon by the lessee during the term, with a proviso for re-entry in case of breach of covenant. The lessee changed the lower windows into shop windows, and stopped up a doorway, making a new one in a different place, in the internal partition of the house:

Held, that no forfeiture was incurred, the lessee's covenant being only against non-repair, and it being implied, by the terms of the lease, that additions and improvements were to be made.

EJECTMENT for premises at Swansea. At the trial before ALDERSON, J., at the last Summer assizes for Glamorganshire, it appeared that this action was grounded on a forfeiture, said to be incurred by breach of covenant in a lease. The premises, a dwelling-house, garden, &c., were demised to the defendant, Jones, for forty years from Lady Day, 1819, at a rent of 301., which the lessee covenanted to pay, and also to repair and keep repaired, &c. the messuage, garden, and premises, by the indenture of lease demised, "together with such buildings, improvements, and additions whatsoever, as at any time during the said term should be erected, set up, or made by him, the said Thomas Jones, his

(a) See Phillips v. Thomson, 3 Lev. 192, and Giles v. Grover, 6 Bingh. 140.

executors, &c. thereupon;" that it should be lawful for the lessor (under whom the lessors of the plaintiff claimed) to enter and view the premises; and that in case any defects or want of reparation of the said premises or any part thereof should be there found, the defendant, his executors, &c. should, on notice thereof in writing, cause the said premises to be forthwith well and substantially repaired or amended in all things. The only other covenants on the lessee's part were, not to assign without license, and to deliver up the premises at the expiration of the term, in good, substantial, and tenantable repair and condition. Proviso for immediate re-entry, if the rent should be unpaid for twenty-one days, or if the lessee should not observe and perform all his covenants. Until *January, 1832, the house was private, and occupied as a lodging-house. *127] The defendant, Jones, then took down part of the house-front, next the street, and converted the lower portion of the premises on that side into a shop, and exhibition room for pictures. The old windows, which were of the form usual in private houses of that description, and about four feet six inches wide, and five feet high, were taken away, and shop windows put in, measuring about eight feet in width by six in height. On the inside, a partition on the groundfloor was broken through, a new door made in it, and an old one stopped up. The work was done well, and with good materials. Notice in writing was given to the plaintiff, during these proceedings (but not attended to by him), to repair, and not to alter the premises. Alderson, J. was of opinion, that no breach of covenant was proved, and directed a nonsuit, but gave leave to move that a verdiet might be entered for the plaintiff.

Whitcombe now moved accordingly. The alterations made by the defendant were a breach of the covenant to repair, Doe dem. Vickery v. Jackson, 2 Stark. N. P. 293. [PATTESON, J. In that case the door was made, not in an internal partition, but in a wall between two houses. PARKE, J. The covenant relied upon here, contemplates the making of improvements.] But not altering the whole character of the premises. The improvements must be considered with reference to the nature of that which is the subject-matter. It cannot have been the meaning of the parties, that a private house should be turned into a *128] shop. [PARKE, J. If the defendant had sold goods on the *premises, that would not have been a breach of any covenant; the only question therefore is, whether a forfeiture be incurred, under this lease, by merely enlarging the windows and opening a new door in the house.] The parties cannot have contemplated as an improvement, the doing of acts which the law considers waste. In Vin. Abr. Waste, D. pl. 19, it is said, that "If a lessee fings down a wall between a parlour and a chamber, by which he makes the parlour more large, it is waste, because it cannot be intended for the benefit of the lessor, nor is it in the power of the lessee to transpose the house.”(a)

PARKE, J. That does not apply to a lease like this, which contemplates "improvements and additions," and only provides against non-repair, which is permissive waste. Under such a lease can it be said that a valuable house was to be kept in precisely the same condition for forty years? I think the nonsuit was right.

TAUNTON, J. I am of the same opinion. This case is the same as if there had been an express contract for the liberty to make improvements, which at common law would have been waste: here the contract is implied. There is no stipulation against waste, except by the covenant to repair: and I am clearly of opinion that enlarging the windows and opening a door, as here proved, did not amount to a breach of that covenant, the effect of which was merely that the tenant should supply the ordinary wear and tear of the premises.

(a) Cited from Keilwey, 37 b., where a former decision of this point, in the same case, is referred to, Yearb. 10 H. 7, f. 2; but a distinction is there taken as to a partition.

VOL. XXIV.-5

PATTESON, J. This was nothing more than the ordinary *covenant to repair; I think no forfeiture was incurred under the lease.

[*129

Rule refused.

BUTCHER and another against HARRISON and Another. Nov. 6.

The assignees of an insolvent debtor are "parties grieved," within the meaning of the act 13 Eliz. c. 5, against fraudulent conveyances, and may recover the penalty thereby given, from the insolvent and others, parties to such conveyance.

On a fraudulent alienation of lands, the offending parties forfeit (by sect. 3 of the act), a year's value of the estate, but not the consideration money named in the conveyance.

DEBT by the plaintiffs as assignees, under the insolvent act, of the defendant Harrison's estate. The declaration stated that the defendant, Anna Louisa Harrison, was entitled to and interested in certain lands, &c., of the yearly value of, &c., and was indebted to the plaintiff, Butcher, in the sum of 301., and to other persons in divers other sums: nevertheless, that the defendants well knowing the premises, of their malice, fraud, &c., were parties to a fraudulent conveyance of the said lands, &c., from the said A. L. H. to Edward Harrold (the other defendant) by lease and release, for a pretended consideration of 5007. in the said conveyance stated to have been paid, to the intent to hinder and defraud A. L. H.'s creditors of their just debts; which conveyance the defendants, after the said A. L. H. became an insolvent debtor, did wittingly and willingly put in ure, avow, maintain, &c., to the intent before stated, contrary to the statute; whereby an action had accrued to the plaintiffs as such assignees, (being, as such assignees as aforesaid, the parties grieved by the said fraudulent conveyance,) to demand and have, for the king and for themselves as such assignees, &c., of and from the defendants, being the parties thereto, one year's value of the lands, amounting to, &c., "and also the said sum of 5001., being the said sum of money contained in the said conveyance as aforesaid." Plea, nil debent. At the trial before Bosanquet, J., at the Stafford Summer assizes 1832, evidence was given in support of the averments in the declaration, and the plaintiffs had a verdict for 1507. as the annual value of the land, and 5007. as the sum contained in the conveyance.

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Curwood now moved for a rule to shew cause why a nonsuit should not be entered, or the judgment arrested. This is a declaration on the statute 13 Eliz. c. 5,(a) for a penalty in respect of a fraudulent conveyance; and the plaintiffs say that they claim, being, as assignees of an insolvent, by whom the conveyance was made, "the parties grieved" thereby. But assignees of an insolvent who has made such a conveyance, are not "grieved" thereby, within the meaning of the act: they cannot, as representatives of one party to such conveyance, sue the other for penalties. And further, the forfeiture given by the act is,

(a) The act is stated in sect. 1, to be for the avoiding of fraudulent conveyances, &c., as well of lands as of goods, devised and contrived to delay, hinder, or defraud creditors and others of their lawful actions, debts, &c. It is therefore enacted in sect. 2, that all and every bargain and conveyance of lands, goods, and chattels, &c., and all and every bond made to or for any intent or purpose before declared, shall be, (only as against the persons thereby hindered, delayed, and defrauded,) utterly void. And sect. 3 enacts, that the parties to such fraudulent conveyance, bonds, &c., who at any time after, &c., shall wittingly and willingly put in ure, avow, maintain, justify, or defend the same as true or made bona fide, "shall incur the penalty and forfeiture of one year's value of the said lands, tenements, and hereditaments, leases, rents, commons, or other profits, of or out of the same; and the whole value of the said goods and chattels; and also so much money as are or shall be contained in any such covinous and feigned bond;" one moiety to the Queen, the other "to the party or parties grieved" by such fraudulent conveyance, bond, &c.