Potts v Hickman: HL 1941

The Plaintiff was the landlord of certain premises and had as at 29 September 1938, a right to distrain for unpaid rent in the sum of andpound;15 11s. However, on 20 September, the defendant, as bailiff for Wolverhampton Corporation, had levied on the tenant under a warrant for distress for rates granted by a justice of the peace for the borough on 11 August pursuant to Distress for Rates Act 1849.
Held: The levying of a distress for poor rates under a justice’s warrant was not an ‘execution’ within section 1 Landlord and Tenant Act 1709 (called in this case ‘the Act of Anne’). The issue was whether the distress was an execution within section 1 of the 1709 Act. The section referred to ‘the party at whose suit the execution is sued out’ and to a process to be executed by ‘the sheriff or other officer’ resulting in payment ‘to the plaintiff’. The wording led to the conclusion that, in this context, ‘execution’ referred to the process of enforcing a judgment obtained inter partes. Although the distress warrant was stated to be ‘in the nature of an execution’ it was not a process to enforce payment of a debt ascertained by a previous judgment. As to the possibility of a wider meaning of ‘execution’: ‘The House has been much assisted by the learning and research of counsel on both sides, and we further have the advantage of the full and carefully reasoned judgment of Goddard L.J. delivered on behalf of the Court of Appeal. [see at [1940] 1 KB 38.D] If the test which would determine the present controversy were completely stated by asking whether the lawyers of 1709 would have regarded the levying of a distress of rates as an execution, there would indeed be a great deal to be said for the learned Lord Justice’s conclusion. Ten years before the Act of Anne was passed, Holt C.J. in the deer-stealing case Rex v. Speed had said that ‘when a statute says money ‘shall be levied by distress,’ that is an execution.’ In Hutchins v. Chambers, where the question was whether beasts of the plough were privileged from distress for poor rates and it was decided that they were not, Lord Mansfield quotes with approval the following passage from 3 Salkeld, p. 136: ‘This common-law exemption of utensils, tools, instruments of husbandry etc. from distress holds only in distress for rent arrear, amerciaments etc., but doth not extend to cases where a distress is given in the nature of an execution by any particular statute; as for poor rates.’ ‘Therefore’, adds Lord Mansfield, ‘it is more analogous to an execution than to a distress at common law, and there (in cases of execution) averia carucae may be distrained; although there be other sufficient distress.’


Viscount Simon LC


[1941] AC 212


Landlord and Tenant Act 1709 1


England and Wales

Cited by:

CitedBrenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Insolvency

Updated: 17 May 2022; Ref: scu.228986