DISTRESS FOR RENT ORDINANCE, 1883
Title
DISTRESS FOR RENT ORDINANCE, 1883
Description
ORDINANCE NO. 1 OF 1883
Distress for Rent Ordinance, 1883.
AN ORDINANCE to consolidate and amend the laws realing to
distraints for rent. [1st march, 1883]
BE it enacted by the governor of hongkong, with the advice of the
legislative council thereof, as follows:-
1 this ordinance may be cited as the distress for rent ordinance,
1883.
2 in this ordinance 'the court' means the supreme court in its summary jurisdiction.
PART I.
JURISDICTION.
3 the court shall have jurisdiction to issue warrants of distress for
arrears of rent in all cases, iwhtout 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 leived.
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, on
summary conviction before a magistrate, be liable to a penalty not
exceeding one hundred dollars or to imprisonment for any term not exceeding
three months, in addition to any other liability which he may have
incurred by his proceedings.
5-(1) the bailiffs of the court shall be employed under the provisions of this
ordiance.
(2) the salaries, allowance, and expenses of the bailiffs and other
officers employed under this ordinance shall be paid out of the general
revenue of the colony.
6-(1) all fees collected under this ordinance for services by such
bailiffs and officers shall be paid into the general revenue of the colony.
(2) no fees shall be taken or demanded for such distress except
those allowed by this ordinance, as set out in the firstr schedule to this
ordinance.
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 herein-
after mentioned.
9-(1) a power of attorney to an agent authorized to apply for
warrants of distress may either general or for the particular case,
and shall be exempt from stamp duty, if confined solely to the purpose
of giving authority to distrain for rent under this ordinance.
(2) such power may be in the form in the second schedule to this
ordinance or to the like effect.
10-(1) every application for a warrant shall be supported by an
affidavit or declaration, which may be according to the form in the
second schedule to this ordinance or to the like effect.
(2) such affidavit or declaration may be sworn or declared to in like
manner as other affidavits or declarations in the court.
11. a warrant according to the form in the second schedule to this
ordinance or to the lkie effect may be issued by a judge of the supreme
court or, in the absence of any judge from the court house, by the
registrar or a deputy registrar, returnable within six days and addressed to any
one of the bailiffs of the court.
12 the judge, registrar, or deputy 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, application may
be made to the full court as provided in cases under section 23 of the
supreme court ordinance, 1873.
(2) if the registrar or a deputy registrar declines to do so, application
may be made to a judge in the first instance. a deputy registrar may,
however, always refer the matter to the registrar, on any
application made to such deputy registrar.
14 every distress under this ordinance shall be made after sunrise
and before sunset, and not at any other time, except by special leave of
the court or a judge.
15 in pursuance of the warrant aforesaid, the bailiff shall seize the movable
[roperty found in or upon the house or premises mentioned in
the warran, and in 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 judment, be sufficient to cover the amount of
the rent, together with the costs of the distress.
16 the bailiff shall not seize-
(1) things in actual use, in the hands of a person at the 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 furnished lodging-house; or
(5) the debtor's necessary wearing apparel; or
(6) goods in the custody of the law; or
(7) goods delivered to a person 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 invertory and appraisement and notice in writing, according to
the form in the second schedule to this ordinance 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 invernory, appraisemnt, and notice.
19-(1) any bailiff or officer appointed to execute a distress warrent
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
waiting a reasonable time, no person answers or is in the buidling, 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 being 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, authorizing him
to break open, or have broken open, such doors and windows.
(4) before executing such order, however, the bailiff shall inform any
person or persons in or about the building that he has such order and that
he is about to act on it, unless the doors or windows are opened.
20 the bailiff may impound 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 owner
of any property seized under this ordinance, may, at any time within
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, verified 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 warrant 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 ocurt directs.
23 if any claim is made to or in respect of any property seized
under distress 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
therupon 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 proceedings in such action after the service of
such summons.
24-(1) every such claim shall be verified by affidavit or declaration
setting out the facts on which it is founded.
(2) when so verified the court shall adjudicate 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 enforeced as if it were an order made in an
action brought in the court.
25-(1) in any case under section 21 or section 23, the court may,
if a claim has been made therefor at the time of application, and if it
appears to th court that the landlord or bailiff had no reasonalbe ground
for believing that the goods were properly distrainalbe, 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 respect of injury caused by the distress.
26 the court may, in its discretion, at any time, on the application
of the debtor and on reasonalbe notice being given of the application to the person 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 distrained property
shall be sold on the day mentioned in the notice of apprisement
and sale hereinbefore referred to, and such sale shall be conducted at
such a 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.
PAART V
DESERTED PREMISES.
29-(1) where any immovable property 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 premisses 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 countervail the arrears
of rent, it shall be lawful for the court, at the request of the lessor or
landlord or his agent and on information upon oath, to issue its warrant
authorizing any bailiff to enter on the premises, bvreaking 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 applicatn.
(2) if no such cause is whon, 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 manner 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 from
whom such arrears became due.
31 no personal proerty 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 lessor 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 the time of the issue of any distress warrant or thereafter before
seizure by the bailiff under such warrant, sezied under any writ or
warrant of the supreme court, the said bailiff shall not seize such personal
property, but shall reture the warrant into court and deliver
copies thereof to the execution creditor or his agent and to the debtor,
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 rgistrar 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 thereof:
providied 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 costs and no more.
33 if any execution is paid off after the issue of a istress 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 arrears of rent due to he
estates represented by them; that is to say,-
(1) executors or administrators of any lessor or landlord or person
entitled to receive rents;
(2) guardians for infants;
(3) committees of lunatis for the lunatics;
(4) receivers appointed by courts for the estate over or for which
they are apointed;
(5) assignees and trustees in bankruptey for the estate of the bankrupt;
(6) mortgagees for the property mortgaged, if the mortgagee is in
posssession;
(7) trustees for the estate oover which the trust extends;
(3) lessees against their under-lessees;
(9) the registrar for premises seized under execution, if rented to
tenants by the person aginst whom the execution is issued, or
otherwise rented so that the rent is payable to such person; and
(10) married women, with or without 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,
tenants in common, executors, administrators, trustees, guardians, part-
ners, 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 of rent so distrained
for shall be a complete discharge to the tenant for the rent or
for so much tereof 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 or a deputy registrar,
to be advisable to do so, the court, or the registrar or a deputy registrar,
may require the require the party so applying to produce a written authority
to distrain, signed by one or more of the persons jointly or together
interested wiht 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 accrued during the current tenancy, and if at any time such
property would have been liable to distraint for rent under this ordinance;
and the landlord or loessor shall be entitled to require the bailiff,
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 of lessee or person in possession or occupation of
any premises on which there is an arrear of rent due, recovable by
distress, removes or carries away, or cuases or permits to be removed or
carried away, from the premises any movable property liable to be seized
of such rent, so as to prevent or hinder the bailiff from distraining the
same, it shall be lawful for the court, on application verified by affidavit,
to authorize the bailiff to whom the warrant of distress to distrain for the
rent on such premises is addressed, and the officers acting with him, to
follow and to take and seize such property as a distress for the said
arrears of rent, whenever the same may be found, at any time within
thirty days from the day of its removeal, exclusive of the day of removeal,
and to deal with the property so remvoed 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: provided that it shall be lawful for the bailiff,
without such authority, to follow and seize any such property 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 mentioned in sections 36 and 37 has been
sold bonu 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 carried away, or was to be removed or carried away,
so as to prevent or hinder the landlor or lessee from distraining, the
same, or so much thereof as has been so sold, shall be restored by the
bailiff distraining or by the court on application under section 21.
39 every tenant or lessee orperson in possession or occupation who
fraudulently removes or carries away movable property as aforesaid,
and every person who wilfully and knowingly aids or assists such tenant
or lessee or person in such fraudulent removal or carrying away, shall
be deemed to be guilty of a misdemeanor.
40 it shall be lawful for any police officer to stop and dtain, until
due inquiry can be made, all carts, hand carts, and carriages, and all
persons, engaged between the hours of eight o'clock in the evening and
six o'clock in the morning in removing the furniture of any premises.
41 where any distress is made for any sum of money to be levied
by virtue of his ordinance, the distress itself shall not be deemed unlawful,
nor the party making the same be deemed a trespasser, on
account of any defect or want of form in the proceeding relating thereto,
nor shall the party distraining be deemed a trespasser from the beginning
on account of any irregualrity which may afterwards be committed by
the party so distraining, but the person aggrieved by such irregualrity
may recover satisfaction 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. SCHEDULE.
THE FIRST SCHEDULE.
TABLE OF FEES TO BE LEVIED IN DISTRAINTS FOR RENT.
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 sub-
poenaed, in which case each subpoena 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; wher property is removed and stored, the necessary expenses,
to the fixed by the registrar, must be paid.
THE SECOND SCHEDULE.
FORMS
FORM NO.1.
Power of Attorney to distrain.
I, [or We], A.B., do hereby authorize C.D. to be my [or our] agent to act
for me [or our] in distraining, under the distress for rent ordinance, 1883,
for[all] the arrears of rent now due to me [or our](or to be hereafter due) on
property situated in [here describe the property], as to which I am[or We
are] entitled to distrain as woner, [or lessee, trustee, guardian, etc.,] alone
[or together with E.F.], etc.
dated the day of , I .
(signed)
A.B.
FORM NO. 2.
Affdavit 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, form the day of , I , to the day
of , I , at the rate of per mensem.
(signed)
A.B.
Sworn before me
at on the
day of , I .
(signed)
FORM NO.3
Warrant of Distress.
HONGKONG.
In the supreme court, summary jurisdiction.
to E.F., bailiff of the court.
I hereby direct you to distrain the goods and chattels on the premises of
C.D. situate at in the for the sum of
$ being the amount months' rent due to A.B. for the
same on the day of , I , according to the provisions
of the distress of rent ordiance, 1883.
before proceeding to distraint under this warrant, you shall demand payment
of the amount indorsed hereon.
day of , I .
[L.S.] (signed)
FORM NO. 4.
Inventory, Appraisement, and Notice.
HONGKONG.
In the supreme court, summary jurisdiction.
To C.D.
Take notice that I have this day seized the goods and chattels contained in
the above inventory and appraisement, for the sume of $ being the
amount of months' rent due to A.B. on the day of , I ,
and that unless you pay that amount, together
with the costs of this distress, within five days from the date hereof, or
obtain an order from the Court to the contrary, the same will be sold on the
day of , I , pursuant to the provisions of the
distress for rent ordiance, 1883.
Dated the day of , I .
(Signed)
E.F.
A.D. 1883. Ordinance No. 1 of 1883, with Ordinance No. 15 of 1892 s. 2. Incorporated. Short title. Interpretation of term. Issuing of warrants of distress. Punishment of unauthorized person levying distress. Employment and payment of Bailiffs. Fees. First Schedule. Limitation of time for issie of warrant. Application for warrant. Form of power of attorney. Second Schedule: Form No. 1. Form and making of affidavit. Second Schedule: Form No. 2. Form and issue of warrant. Second Schedule: Form No. 3. Refusal of warrant. Appeal from refusal. No. 3 of 1873. Time for making distress. Property liable 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, etc., of property seized. Discharge or suspension of warrant or release of distress. Costs of application. Wrongful distress. Adjudiction in case of wrongful distress. Awarding of 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 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. Execution of distress warrant after satisfaction of execution. Person allowed to apply for distress warrant. Right of one of several parties interested to institute proceedings. Removal of property under distraint. Following of property liable to seizure and removed. Restoration of property removed but bona fide sold. Fraudulent removal of property by tenant. Power to Police officer to stop removal of furniture. Protection against irregularity in proceedings Exclusion of Crown rents. Section 6. Section 9. Section 10. Section 11. Section 17.
Distress for Rent Ordinance, 1883.
AN ORDINANCE to consolidate and amend the laws realing to
distraints for rent. [1st march, 1883]
BE it enacted by the governor of hongkong, with the advice of the
legislative council thereof, as follows:-
1 this ordinance may be cited as the distress for rent ordinance,
1883.
2 in this ordinance 'the court' means the supreme court in its summary jurisdiction.
PART I.
JURISDICTION.
3 the court shall have jurisdiction to issue warrants of distress for
arrears of rent in all cases, iwhtout 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 leived.
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, on
summary conviction before a magistrate, be liable to a penalty not
exceeding one hundred dollars or to imprisonment for any term not exceeding
three months, in addition to any other liability which he may have
incurred by his proceedings.
5-(1) the bailiffs of the court shall be employed under the provisions of this
ordiance.
(2) the salaries, allowance, and expenses of the bailiffs and other
officers employed under this ordinance shall be paid out of the general
revenue of the colony.
6-(1) all fees collected under this ordinance for services by such
bailiffs and officers shall be paid into the general revenue of the colony.
(2) no fees shall be taken or demanded for such distress except
those allowed by this ordinance, as set out in the firstr schedule to this
ordinance.
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 herein-
after mentioned.
9-(1) a power of attorney to an agent authorized to apply for
warrants of distress may either general or for the particular case,
and shall be exempt from stamp duty, if confined solely to the purpose
of giving authority to distrain for rent under this ordinance.
(2) such power may be in the form in the second schedule to this
ordinance or to the like effect.
10-(1) every application for a warrant shall be supported by an
affidavit or declaration, which may be according to the form in the
second schedule to this ordinance or to the like effect.
(2) such affidavit or declaration may be sworn or declared to in like
manner as other affidavits or declarations in the court.
11. a warrant according to the form in the second schedule to this
ordinance or to the lkie effect may be issued by a judge of the supreme
court or, in the absence of any judge from the court house, by the
registrar or a deputy registrar, returnable within six days and addressed to any
one of the bailiffs of the court.
12 the judge, registrar, or deputy 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, application may
be made to the full court as provided in cases under section 23 of the
supreme court ordinance, 1873.
(2) if the registrar or a deputy registrar declines to do so, application
may be made to a judge in the first instance. a deputy registrar may,
however, always refer the matter to the registrar, on any
application made to such deputy registrar.
14 every distress under this ordinance shall be made after sunrise
and before sunset, and not at any other time, except by special leave of
the court or a judge.
15 in pursuance of the warrant aforesaid, the bailiff shall seize the movable
[roperty found in or upon the house or premises mentioned in
the warran, and in 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 judment, be sufficient to cover the amount of
the rent, together with the costs of the distress.
16 the bailiff shall not seize-
(1) things in actual use, in the hands of a person at the 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 furnished lodging-house; or
(5) the debtor's necessary wearing apparel; or
(6) goods in the custody of the law; or
(7) goods delivered to a person 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 invertory and appraisement and notice in writing, according to
the form in the second schedule to this ordinance 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 invernory, appraisemnt, and notice.
19-(1) any bailiff or officer appointed to execute a distress warrent
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
waiting a reasonable time, no person answers or is in the buidling, 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 being 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, authorizing him
to break open, or have broken open, such doors and windows.
(4) before executing such order, however, the bailiff shall inform any
person or persons in or about the building that he has such order and that
he is about to act on it, unless the doors or windows are opened.
20 the bailiff may impound 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 owner
of any property seized under this ordinance, may, at any time within
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, verified 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 warrant 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 ocurt directs.
23 if any claim is made to or in respect of any property seized
under distress 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
therupon 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 proceedings in such action after the service of
such summons.
24-(1) every such claim shall be verified by affidavit or declaration
setting out the facts on which it is founded.
(2) when so verified the court shall adjudicate 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 enforeced as if it were an order made in an
action brought in the court.
25-(1) in any case under section 21 or section 23, the court may,
if a claim has been made therefor at the time of application, and if it
appears to th court that the landlord or bailiff had no reasonalbe ground
for believing that the goods were properly distrainalbe, 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 respect of injury caused by the distress.
26 the court may, in its discretion, at any time, on the application
of the debtor and on reasonalbe notice being given of the application to the person 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 distrained property
shall be sold on the day mentioned in the notice of apprisement
and sale hereinbefore referred to, and such sale shall be conducted at
such a 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.
PAART V
DESERTED PREMISES.
29-(1) where any immovable property 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 premisses 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 countervail the arrears
of rent, it shall be lawful for the court, at the request of the lessor or
landlord or his agent and on information upon oath, to issue its warrant
authorizing any bailiff to enter on the premises, bvreaking 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 applicatn.
(2) if no such cause is whon, 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 manner 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 from
whom such arrears became due.
31 no personal proerty 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 lessor 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 the time of the issue of any distress warrant or thereafter before
seizure by the bailiff under such warrant, sezied under any writ or
warrant of the supreme court, the said bailiff shall not seize such personal
property, but shall reture the warrant into court and deliver
copies thereof to the execution creditor or his agent and to the debtor,
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 rgistrar 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 thereof:
providied 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 costs and no more.
33 if any execution is paid off after the issue of a istress 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 arrears of rent due to he
estates represented by them; that is to say,-
(1) executors or administrators of any lessor or landlord or person
entitled to receive rents;
(2) guardians for infants;
(3) committees of lunatis for the lunatics;
(4) receivers appointed by courts for the estate over or for which
they are apointed;
(5) assignees and trustees in bankruptey for the estate of the bankrupt;
(6) mortgagees for the property mortgaged, if the mortgagee is in
posssession;
(7) trustees for the estate oover which the trust extends;
(3) lessees against their under-lessees;
(9) the registrar for premises seized under execution, if rented to
tenants by the person aginst whom the execution is issued, or
otherwise rented so that the rent is payable to such person; and
(10) married women, with or without 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,
tenants in common, executors, administrators, trustees, guardians, part-
ners, 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 of rent so distrained
for shall be a complete discharge to the tenant for the rent or
for so much tereof 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 or a deputy registrar,
to be advisable to do so, the court, or the registrar or a deputy registrar,
may require the require the party so applying to produce a written authority
to distrain, signed by one or more of the persons jointly or together
interested wiht 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 accrued during the current tenancy, and if at any time such
property would have been liable to distraint for rent under this ordinance;
and the landlord or loessor shall be entitled to require the bailiff,
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 of lessee or person in possession or occupation of
any premises on which there is an arrear of rent due, recovable by
distress, removes or carries away, or cuases or permits to be removed or
carried away, from the premises any movable property liable to be seized
of such rent, so as to prevent or hinder the bailiff from distraining the
same, it shall be lawful for the court, on application verified by affidavit,
to authorize the bailiff to whom the warrant of distress to distrain for the
rent on such premises is addressed, and the officers acting with him, to
follow and to take and seize such property as a distress for the said
arrears of rent, whenever the same may be found, at any time within
thirty days from the day of its removeal, exclusive of the day of removeal,
and to deal with the property so remvoed 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: provided that it shall be lawful for the bailiff,
without such authority, to follow and seize any such property 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 mentioned in sections 36 and 37 has been
sold bonu 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 carried away, or was to be removed or carried away,
so as to prevent or hinder the landlor or lessee from distraining, the
same, or so much thereof as has been so sold, shall be restored by the
bailiff distraining or by the court on application under section 21.
39 every tenant or lessee orperson in possession or occupation who
fraudulently removes or carries away movable property as aforesaid,
and every person who wilfully and knowingly aids or assists such tenant
or lessee or person in such fraudulent removal or carrying away, shall
be deemed to be guilty of a misdemeanor.
40 it shall be lawful for any police officer to stop and dtain, until
due inquiry can be made, all carts, hand carts, and carriages, and all
persons, engaged between the hours of eight o'clock in the evening and
six o'clock in the morning in removing the furniture of any premises.
41 where any distress is made for any sum of money to be levied
by virtue of his ordinance, the distress itself shall not be deemed unlawful,
nor the party making the same be deemed a trespasser, on
account of any defect or want of form in the proceeding relating thereto,
nor shall the party distraining be deemed a trespasser from the beginning
on account of any irregualrity which may afterwards be committed by
the party so distraining, but the person aggrieved by such irregualrity
may recover satisfaction 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. SCHEDULE.
THE FIRST SCHEDULE.
TABLE OF FEES TO BE LEVIED IN DISTRAINTS FOR RENT.
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 sub-
poenaed, in which case each subpoena 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; wher property is removed and stored, the necessary expenses,
to the fixed by the registrar, must be paid.
THE SECOND SCHEDULE.
FORMS
FORM NO.1.
Power of Attorney to distrain.
I, [or We], A.B., do hereby authorize C.D. to be my [or our] agent to act
for me [or our] in distraining, under the distress for rent ordinance, 1883,
for[all] the arrears of rent now due to me [or our](or to be hereafter due) on
property situated in [here describe the property], as to which I am[or We
are] entitled to distrain as woner, [or lessee, trustee, guardian, etc.,] alone
[or together with E.F.], etc.
dated the day of , I .
(signed)
A.B.
FORM NO. 2.
Affdavit 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, form the day of , I , to the day
of , I , at the rate of per mensem.
(signed)
A.B.
Sworn before me
at on the
day of , I .
(signed)
FORM NO.3
Warrant of Distress.
HONGKONG.
In the supreme court, summary jurisdiction.
to E.F., bailiff of the court.
I hereby direct you to distrain the goods and chattels on the premises of
C.D. situate at in the for the sum of
$ being the amount months' rent due to A.B. for the
same on the day of , I , according to the provisions
of the distress of rent ordiance, 1883.
before proceeding to distraint under this warrant, you shall demand payment
of the amount indorsed hereon.
day of , I .
[L.S.] (signed)
FORM NO. 4.
Inventory, Appraisement, and Notice.
HONGKONG.
In the supreme court, summary jurisdiction.
To C.D.
Take notice that I have this day seized the goods and chattels contained in
the above inventory and appraisement, for the sume of $ being the
amount of months' rent due to A.B. on the day of , I ,
and that unless you pay that amount, together
with the costs of this distress, within five days from the date hereof, or
obtain an order from the Court to the contrary, the same will be sold on the
day of , I , pursuant to the provisions of the
distress for rent ordiance, 1883.
Dated the day of , I .
(Signed)
E.F.
A.D. 1883. Ordinance No. 1 of 1883, with Ordinance No. 15 of 1892 s. 2. Incorporated. Short title. Interpretation of term. Issuing of warrants of distress. Punishment of unauthorized person levying distress. Employment and payment of Bailiffs. Fees. First Schedule. Limitation of time for issie of warrant. Application for warrant. Form of power of attorney. Second Schedule: Form No. 1. Form and making of affidavit. Second Schedule: Form No. 2. Form and issue of warrant. Second Schedule: Form No. 3. Refusal of warrant. Appeal from refusal. No. 3 of 1873. Time for making distress. Property liable 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, etc., of property seized. Discharge or suspension of warrant or release of distress. Costs of application. Wrongful distress. Adjudiction in case of wrongful distress. Awarding of 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 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. Execution of distress warrant after satisfaction of execution. Person allowed to apply for distress warrant. Right of one of several parties interested to institute proceedings. Removal of property under distraint. Following of property liable to seizure and removed. Restoration of property removed but bona fide sold. Fraudulent removal of property by tenant. Power to Police officer to stop removal of furniture. Protection against irregularity in proceedings Exclusion of Crown rents. Section 6. Section 9. Section 10. Section 11. Section 17.
Abstract
A.D. 1883. Ordinance No. 1 of 1883, with Ordinance No. 15 of 1892 s. 2. Incorporated. Short title. Interpretation of term. Issuing of warrants of distress. Punishment of unauthorized person levying distress. Employment and payment of Bailiffs. Fees. First Schedule. Limitation of time for issie of warrant. Application for warrant. Form of power of attorney. Second Schedule: Form No. 1. Form and making of affidavit. Second Schedule: Form No. 2. Form and issue of warrant. Second Schedule: Form No. 3. Refusal of warrant. Appeal from refusal. No. 3 of 1873. Time for making distress. Property liable 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, etc., of property seized. Discharge or suspension of warrant or release of distress. Costs of application. Wrongful distress. Adjudiction in case of wrongful distress. Awarding of 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 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. Execution of distress warrant after satisfaction of execution. Person allowed to apply for distress warrant. Right of one of several parties interested to institute proceedings. Removal of property under distraint. Following of property liable to seizure and removed. Restoration of property removed but bona fide sold. Fraudulent removal of property by tenant. Power to Police officer to stop removal of furniture. Protection against irregularity in proceedings Exclusion of Crown rents. Section 6. Section 9. Section 10. Section 11. Section 17.
Identifier
https://oelawhk.lib.hku.hk/items/show/602
Edition
1901
Volume
v1
Subsequent Cap No.
7
Cap / Ordinance No.
No. 1 of 1883
Number of Pages
11
Files
Collection
Historical Laws of Hong Kong Online
Citation
“DISTRESS FOR RENT ORDINANCE, 1883,” Historical Laws of Hong Kong Online, accessed May 12, 2025, https://oelawhk.lib.hku.hk/items/show/602.
