DISTRESS FOR RENT ORDINANCE, 1883

DISTRESS FOR RENT ORDINANCE, 1883

No. 1 of 1883.

An Ordinance to consolidate and amend the laws relating
to distraints for rent.
[1st March, 1883.]

1. This Ordinance may be cited as the Distress for Rent
Ordinance, 1883.

2. In this Ordinance,

(a) The court means the Supreme Court in its summary
jurisdiction.

(b) The Registrar means the Registrar of the Supreme
Court.


* As amended by Law Rev. Ord., 1923.
+ As amended by Law Am. Ord., 1923.


PART I.

JURISDICTION.

3. The court shall have jurisdiction to issue warrants of
distress for arrears of rent in all cases, without respect to the
value of the property on which the rent is to be levied and
without respect to the amount of rent to be levied.

4.-(1) No distress shall be levied for arrears of rent
except under the provisions of this Ordinance.

(2) Every person, not being a bailiff or officer acting under
this Ordinance, who levies or, attempts to levy any such
distress shall upon summary conviction be liable to a fine not
exceeding one hundred dollars or to imprisonment for any
term not exceeding three months, in addition to any other
liability wMeh he may have incurred by his proceedings.

5.-(1) The bailiffs of the court shall be employed under
the provisions of this Ordinance.

(2) The salaries, allowances, and expenses of the bailiffs
and other officers employed under this Ordinance shall be
paid out of the general revenue.,

6.-(1) All fees collected under this Ordinance for services
by such bailiffs and officers shall be paid into the general
revenue.

(2) No fees shall be taken or demanded for such distresses
except those set out in the First Schedule.

7. No warrant shall be issued in any case for arrears of
rent due for more than twelve months at the time of the
application.

PART II

MAKING OF DISTRESS.


8. Any person claiming to be entitled to arrears of rent,
or his duly constituted attorney or agent, may apply for such
warrant as is hereinafter mentioned.

9.-(1) A Power of attorney to an authorised to
apply for warrants of distress may be either general or for the
particular case, and shall be exempt front stamp duty, if con-
fined solely to the purpose of giving authority to distrain for
rent under this Ordinance.

(2) Such power may be in Form No. 1 in the Second
Schedule or to the like effect.

10.-(1) Every application for a warrant shall be sup-
ported by an affidavit, which may be according to Form No.
2 in the Second Schedule or to the like effect.

(2) Such affidavit may be sworn in like manner as ohter
affidavits in the court.

11. A warrant according to Form No. 3 in the Second
Schedule or to the like effect may be issued by a judge or,
int the absence of any judge from the court house, by the
Registrar, returnable within six days and addressed to any
one of the bailiffs of the court.

12. the judge or Registrar to whom application is made
may, on examination of the person applying for such warrant,
decline to issue the same.

13.-(1) If a judge declines to issue such warrant, ap-
plication may be made to the Full Court as provided in cases
under section 23 of the Supreme Court Ordinance, 1873.

(2) If the Registrar declines to do so, application may be
made to a judge in the first instance. A Deputy Registrar
may, however, refer any application to the Registrar.

15. In pursuance of the warrant aforesaid, the bailiff shall
seize the movable property found in or upon the hosue or
premises mentioned in the warrant, and int the apparent
possession of the person from whom the rent is claimed
(hereinafter called the debtor), or such part thereof as may,
in the bailiff's judgment, be sufficient to cover the amount of
the rent, together with the costs of the distress.

* As amended by Law Am. Ord., 1923.
















16. the bailiff shall not seize-

(1) things in actual use, in the hands of a person at the
time of seizure; or

(2) tools and implements not in use, where there is other
movable property in or upon the house or premises sufficient
to cover the amount of the rent and costs; or

(3) goods of a temporary guest at an inn; or

(4) goods of a lodger at a funished lodging-house; or

(5) the debtor's necesary wearing apparel; or

(6) goods in the custody of the law; or

(7) goods delivered to aperson exercising a public trade,
to be carried, wrought, worked up, or managed in the way
of his trade or employ.

17. On seizing any property under section 15, the bailiff
shall make an inventory and appraisement of such property,
and shall give a copy of such inventory and appraisement
and notice in writing, according to Form No. 4 in the
Second Schedule or to the like effect, to the debtor or to any
other person on his behalf, in or upon the said house or
premises.

18. The bailiff shall, as soon as may be, file in the court
copies of the said inventory, appraisement, and notice.

19.- (1) any bailiff or officer appointed to execute a dis-
tress warrant may break open inner doors.

(2) If he is denied admittance to any building as to which
he has a warrant to distrain, after declaring his name and
business, or if, after wating a reasonable time, no person
answers or is in the building, he may apply to the court for
authority to break open outer doors and windows, so far as
may be necessary to enable him to execute the warrant.

(3) The court, on ebing satisfied , by the affidavit of the
bailiff or officer, that there are no reasonable means of
executing the warrant without breaking open such outer doors
or windows, may grant an order in writing, addressed to a
bailiff of the court, authorising him to break open, or have
broken open, such doors and windows.

* As amended by Law Am. Ord., 1923.






































(4) Before executing such order, however, the bailiff shall
inform any person in or about the building that he has such
order and that he is about to act on it, nless the doors or
windows are opened.

20. The bailiff may impund or otherwise secure the
property seized in or on the house or premises chargeable
with the rent or may remove the same.


PART III.

DISCHARGE OF AND COMPENSATION FOR
WRONGFUL DISTRESS.

21. The debtor, or any other person alleging himself to
be the woner of any property seized under this Ordinance,
may, at any time withing five days from such seizure, on
twenty-four hours notice to the person who obtained the
warrant and to the bailiff, setting out the facts on which the
claim is founded, vertified by affidavit, apply to the court to
discharge or suspend the warrant or to release a distrained
article; and the court may discharge or suspend such war-
rant or release such article accordingly, on such terms as it
may think just.

22. On any such application, the costs attending it and
attending the issue and execution of the warrant shall be in
the discretion of the court, and shall be paid as the court
directs.

23. If any claim is made to or in respect of any property
seized under a disrress warrant, or in respect of the proceeds
or value thereof, by any person not being the debtor, the
Registrar, on the application of the bailiff who seized the
property, may issue a summons calling before the court the
claimant and the person who obtained the warrant, and there-
upon any action which may have been brought in respect of
such claim shall be stayed, and the court, on proof of the
service of such summons and that the property was so
distrained, may order the plaintiff to pay the costs of all pro-
ceedings in such action after the service of such summons.

24.-(1) Every such claim shall be verified by affidavit
setting out the facts on which its is founded.

























(2) When so verified the court shalladjudicate thereupon,
and make such order between the parties in respect thereof,
and of the costs of the proceedings, as it thinks fit.

(3) Such order shall be enforced as if it were an order
made in an actin brought in the court.

25.-(1) In any case under section 21 or section 23, the
court may, if a claim has been made therfor at the time of
applicaation, and if it appears to the court tjat the landlord
or bailiff had no reasonable ground for believing that the
goods were p roperly distrainable, award such compensation
by way of damages to the applicant or claimant, as the case
may be, as the court thinks fit, and may for that purpose
make any inquiry it thinks necessary.

(2) The order of the court awarding or refusing such
compensation shall bar any action in respec tof injury caused
by the distress.

26. The court may, at any time, on the application of the
debotr and on reasonable notice being given of the applica-
tion to the peson who obtained the warrant, give time to the
debtor to pay the rent due from him, on such terms as it
may think just and reasonable.

PART IV.

SALE OF DISTRESS.

27.-(1) In default of any order to the contrary, the dis-
trained property shall be sold on the day mentioned in the
notice of appraisement and slae hereinbefore referred to, and
such sale shall be conducted at such place and time and by
such person as the Registrar may direct, whether by an
auctioneer or by a bailiff of the court.

(2) The auctioneer or bailiff shall, on realizing the proceeds,
pay over the amount thereof to the court, and such amount
shall be applied first in payment of the costs of the distress,
and then in satisfaction of the debt; and the surplus, if any,
shall be returned to the debtor.

28. Provided that the debtor may require that the sale
shall take place in any other manner than that directed by
the Registrar, on giving security for any extra costs or loss
thereby, or that, in the opinion of the Registrar, may be
thereby occasioned.



































PART V.

DESERTED PREMISES.

29.-(1) Where any immovable propety is held at a rack
rent, or where the rent reserved is full three-fourths of the
yearly value of the demised premises, and where neither the
value of the premises by the year, nor the rent payable in
respect of the tenancy by the year, exceeds three hundred
dollars, if the tenant is in arrears for two months and deserts
the demised premises and leaves the same uncultivated or
unoccupied, so as no sufficient distress can be had to coun-
tervail the arrears of rent, it shall be lawful for the court, at the
request of the lessor or landlord or his agent and on informa-
tion upon oath, to issue its warrant authorising any bailiff to
enter on the premises, breaking any doors, windows, or gates,
if necessary; and, if the premises are found to be deserted
with no sufficient distress therein, to place the same in charge
of a bailiff and to affix a notice thereon, in a conspicuous
place, that, unless cause to the contrary is shown before the
court within ten days, the premises will be given over to the
applicant.

(2) If no such cause is shown, it shall be lawful for
the court, on proof of the fact of desertion, of non-
payment of at least two months rent last due, of want of
sufficient distress, and that the applicant is the lessor or
landlord of the premises or entitled under this Ordinance to
a distress warrant, to make an order directing a bailiff to put
the applicant in possession of the premises, and the demise
shall become void.

PART VI.

RULES AS TO DISTRESS.

30. Arrears of rent may be distrained for after the end or
determination of any term or lease at will, in the same man-
ner as if such term or lease had not been ended or determined:
Provided that such distress is made during the continuance
of the possession of the tenant is made during the continance
became due.

31. No personal propety shall be removed from any
premises under any writ from any court, other than writs in
Crown suits, until the claim for rent due to the landlord or
lesson or person entitled to receive the rent is satisfied:


















































Provided that such claim shall not in any case exceed the
amount due for six months rent last due.

32.-(1) If personal property, otherwise liable to distress
for rent, is, at time of the issue of any distress warrant or
therafter before seizure by the bailiff under such warrant,
seized under any writ or warrant of the Supreme Court, the
said bailiff shall not size such personal property, but shall
returen the warrant into court and deliver copies thereof to
the execution creditor or his agent and to the debtro, either
personally or by leaving the same at the place where the
goods were seized.

(2) Such execution creditor or debtor or either of them
may apply to the court to discharge or suspend the warrant
within the time and in the manner mentioned in section 21,
and if no such application is made within the said time, the
Registrar shall, out of the first money to be received by him
from the officer executing such writ or warrant, pay over to
the person obtaining such distress warrant the amount there-
of: Provided that if the amount mentioned in the distress
warrant exceeds the amount due for six months rent, the
Registrar shall pay the amount of rent due for six months and
the costs and no more.

33. if any execution is paid off after the issue of a distress
warrant, the bailiff shall immediately execute the distress
warrant.

34. The following persons may, either personally or by
their attorneys or agents, apply for warrants to distrain for
arears of rent due to the estates represented by them; that
is to say,-

(1) execturors or administrators of any lessor or lanlord
or person entitled to receive rents;

(2) guardians for infants;

(3) committees of lunatics for the lunatics;

(4) receivers appointed by courts for the estate over or for
which they are appointed;

(5) assignees and trustees in bankruptcy for the estate of
the bankrupt;

(6) mortgagees for the property mortgaged, if the mort-
gagee is in possession;

(7) trustees for the estate over which the trust extends;

(8) lessees against their underlessees;






































(9) the Registrar for premises seized under execution, if
rented to tenants by the person against whom the execution
is issued, or otherwise rented so that the rent is payable to
such person; and

(10) married women, with or withourt the concurrence of
their husbands, for arrears of rent due on property held by
them to theri sole and separate use.

35. Where a right to distrain accrues to parties jointly
interested or together interested in any premises, such as
coparceners, joint tenants in common, executors,
administrators, trustees, guardian,s partners, or otherwise,
proceedings under this Ordinance may be taken by any one
of such parties, in his own name and the name or names of
those jointly or together interested with him, and the levying
or rent so distrained for shall be a complete discharge to the
tenant for the rent or for so much thereof as may be so levied;
and the party so levying shall be liable to account to the
parties having the interest jointly or together with them for
all sums so levied: Provided that if, in any particular
case, it appears to the court or to the Registrar to be advis-
able to do so, the court or the Registrar may require the
party so applying to produce a written authority to distrain,
signed by on eor more of the persons jointly or together
interested with him.

36. No property found at the time of distraint in or on
any premises as to which an arrear of rent is due shall be
removed from such premises without the consent of the person
issuing the distress warrant, or by direction of the Registrar,
until satisfaction is made for the rent due, if the arrear has
accured during the current tenancy, and if at any time such
property would have been liable to distraint for rent under
this Ordinance; and the landloard or lessor shall be entitled to
require the bailifff, on giving such bailiff a sufficient indemnity,
to the satisfaction of the Registrar, to follow the property, if
removed, and seize the same under the distress warrant,
whether or not such property was afterwards disposed of by
the owner by way of sale, exchange, mortgage, pledge, or
otherwise.

37. If the tenant or lessee or person in possession or
occupation of any premises on which there is an arrear of rent
due, recoverable by distress, removes or carries away, or





















causes or permits to be removed or carried away, from the
premises any movable property liable to be seized for such
rent, so as to prevent or hinder the bailiff rom distraining the
same, it shall be lawful for the court, on application verified
by affidavit, to authorise the bailiff to whom the warant of
distress to distrain for the rwent on such premises is ad-
dressed, and the officers acting with him, to follow and to
take and seize such property as a distress for the said
arrears of rent, wherever the same may be found, at any
time within thirty days from the day of its removal,
exclusive of the day of removal, and to deal with the
property so removed in the same way as if it had been
found on the premises, and, if advisable to do so, to place
the same again in the premises: Proviede that it shall be
lawful for the bailiff, without such authority, to follow and
seize any such propety found by him in the act of being
removed from any such premises, and before the same is
placed in any other house or building.

38. If such property or any part thereof so removed or
carried away under the circumstances mentione din sections
36 and 37 has been sold bona fide and for a sufficient
consideration, before or after removal from the premises
distrained, to any person not knowing and not having the
means of knowing that the same was liable to distraint for
rent, or was removed or careied away, or was to be removed
or carried away, so as to prevent or hinder the landlord
or lessee from distraining, the same, or so much thereof as
has been so sold, shall be restored by the bailiff distraing
or by the court on application under section 21.

39. Every tenant or lessee or person in possession or
occupation who fraudulently removes or carries away
movable property as aforesaid, and every person who
wilfully and knowingly aids or assists suuuuch tenant or lessee
or person in such fraudulent removal or carrying away,
shall be deemed to be guilty of a misdemeanor.

[s. 40, rep. No. 8 of 1912.]

41. Where any distress is made for any sum of money
to be levied by virtue of this Ordinance, the distress itself
shall not be deemed unlawful, nor the party making the
same be deemed a trespsser, on account of any defect or
want of form in the roceeding relating thereto, nor shall




































the party distraining be deemed a trespasser from the
beginning on account of any irregularity which may after-
wards be committed by the party so distraining, but the
person aggrieved by such irregularity may recover satisfac-
tion for the special damages in an action as provided by
section 25.

42. Nothing in this Ordinance shall be held to apply to
rents due to the Crown.

FIRST SCHEDULE.

TABLE OF FEES TO BE LEVIED IN DISTRAINTS FOR RENT. [s. 6.]



The above scale is intended to include all expenses, except in actions
where the tenant disputes the landlord's claim, and witnesses have to
be subpoenaed, in which, case each subppoena must be paid for at 25
cents; where watchmen are kept in charge of property distrained,
50 cents per day must be paid per man; where property is removed
and stored, the necessary expenses, to be fixed by the Registrar, must
be paid.


SECOND SCHEDULE.

FORM No. 1. [s. 9.]

Power of attorney to distrain.

I [or We], A.B. do hereby authorise C.D. to be may [or our] agent to
act fro me [or us] in distraining, under the Distress for Rent Ordinance,
1883, for [all] the arrears of rent now due to me [or us] (or to be
hereafter due) on property situate in [here describe the property], as to
which I am [or we are] entitled ot distrain as owner, [or lessee, trustee,
guardian, etc.] alone [or together with E.F.] etc.

Dated the day of , 19 .

(Signed.) A.B.

* For distraint fees in the New Territories see Hodgson's
Regulations of Hongkong 1914, p. 799.























FORM No. 2 [s. 10.]

Affidavit in support of application for warrant of distress.

HONGKONG.

In the Supreme Court, Summary Jurisdiction.

A.B., Plaintiff.

v.

C.D., Defendant.

I, A.B., an inhabitant of , make oath and say that C.D.,
of , is justly indebted to in the sum of $
for arrears of rent of the house and premises No. situate at
in the due for
months, to wit, from the day of , 19 .
to the dau of 10, at the rate of
per mensem.
(Signed.) A.B.

Sworn before me
at on the day of
,19 . (Signed)


FORM No. 3. [s. 11.]

Warrant of distress.

HONGKONG.

In the Supreme Court, Summary Jurisdiction.

To E.F., Bailiff of the court.

I hereby direct you to distrain thee goods and chattels on the premises
of C.D. situate at in the
for the sum of $ being the amount of
months rent due to A.B. for the same on the
months rent due to A.B. for the same on the day of
,19 , according to the provisions of the Distress for Rent
Ordinance, 1883.

Before proceding to distrain under this warrant, you shall demand
payment of the amount indoresed hereon.

Dated the day of , 19 .

[L.S.] (Signed.)

































[s. 17] FORM No. 4.

Inventroy, appraisement, and notice.
HONGKONG.

In the Supreme Court, Sumamry Jurisdiction.
To C.D.

Take notice that I have this day seized the goods and chattels con-
tained in the above inventory and appraisement, for the sum of
$ being the amount of months rent due to A.B.
on the day of , 19 ,
and that unless you pay that amount, together with the costs of this
distress within five days from the date thereof, or obtain an order from
the court to the contrary, the same will be sold on the day of
, 19 , pursuant to the provisions of the Distress for
Rent Ordinance, 1883.
Dated the day of ,19 .
(Signed.) E.F.
[Originally No. 1 of 1883. Law Rev. Ord., 1924.] Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorised person levying distress. Employment and payment of bailiffs. Fees. First Schedule. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Second Schedule. Form No. 1 Form of affidavit. Second Schedule. Form No. 2. Form and issue of warrant. Second Schedule. Form No. 3. Refusal of warrant. Appeal from refusal. Ordinance No. 3 of 1873. Time for making distress. Property liable to to seizure. Property not liable to seizure. Making of inventory on seizure. Second Schedule. Form No. 4. Filing of inventory, etc. Entry, and forcible entry. Impounding of property seized. Discharge or suspension of warrant or release of distress. Costs of application. Wrongful distress. Adjudication in case of wrongful distress. Compensation for wrongful distress. Power to allow time for payment of rent. Mode of sale of distress. Right of debtor as to manner of sale. Case of deserted premises, where no distress left. Distress for arrears of rents of rent on determination of lease. Priority of landlord's right over writs, except in Crown suits. Property seized under writ or warrant of Supreme Court. Distraint after satisfaction of execution. Persons allowed to apply for distress warrant. Right of one of several parties interested to institute proceedings. Removal of property under distraint. Following property liable to seizure and removed. Restoration of property removed but bona fide sold. Fraudulent removal of property by teneant. [cf. No. 1 of 1898, s. 5.] Protection against irregularity in proceedings. Exclusion of Crown rents. [cf. No. 6 of 1875.]

[Originally No. 1 of 1883. Law Rev. Ord., 1924.] Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorised person levying distress. Employment and payment of bailiffs. Fees. First Schedule. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Second Schedule. Form No. 1 Form of affidavit. Second Schedule. Form No. 2. Form and issue of warrant. Second Schedule. Form No. 3. Refusal of warrant. Appeal from refusal. Ordinance No. 3 of 1873. Time for making distress. Property liable to to seizure. Property not liable to seizure. Making of inventory on seizure. Second Schedule. Form No. 4. Filing of inventory, etc. Entry, and forcible entry. Impounding of property seized. Discharge or suspension of warrant or release of distress. Costs of application. Wrongful distress. Adjudication in case of wrongful distress. Compensation for wrongful distress. Power to allow time for payment of rent. Mode of sale of distress. Right of debtor as to manner of sale. Case of deserted premises, where no distress left. Distress for arrears of rents of rent on determination of lease. Priority of landlord's right over writs, except in Crown suits. Property seized under writ or warrant of Supreme Court. Distraint after satisfaction of execution. Persons allowed to apply for distress warrant. Right of one of several parties interested to institute proceedings. Removal of property under distraint. Following property liable to seizure and removed. Restoration of property removed but bona fide sold. Fraudulent removal of property by teneant. [cf. No. 1 of 1898, s. 5.] Protection against irregularity in proceedings. Exclusion of Crown rents. [cf. No. 6 of 1875.]

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