DISTRESS FOR RENT ORDINANCE, 1883

DISTRESS FOR RENT ORDINANCE, 1883

No. 1 of 1883.
To consolidate and amend the laws relating to Distraints for
Rent. [1st March,1883.]
1. The Distress for Rent Ordinance, 1888.

2. In this Ordinance, 'the Court' means the Supreme Court in
its Summary Jurisdiction.

PART 1.
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,
on summary conviction, be liable to a fine not exceeding 100
dollars or to imprisonment for any term not exceeding 3 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 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
(2) No fees shall be taken or demanded for such distresses ex-
cept those set in the 1st schedule.

7. No warrant shall be issued in any case for arrears of rent due
for more than 12 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 agent authorised to apply for
warrants of distress may be 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 way be in the form in the 2nd schedule or to the
like effect.

10.-(1) Every application for a warrant shall be supported by
an affidavit, which may be according to the form in the 2nd sche-
dule or to the like elfect.
(2) Such affidavit may be sworn in like manner as other affida-
vits in the Court.

11. A warrant according to the form in the 2nd schedule or to the
like effect way be issued by a Judge or, in the absence of any Judge
from the Court House, by thereturnable within 6 days
and addressed to any one of the Bailiff's 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, 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 declines to do so, application may be made
to a Judge in the first instance. A Deputy Registrar may, how-

ever, refer any application to the Registrar.

14. Every distress shall bc 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 property found in or upon the house or premises men-
tioned in the warrant,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 judgment, 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 time of
seizure ; or
(2) tools and implements not in use, where there is other mov-
able property in or upon the house or preinises sufficient to cover
the a mount 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 inventory and appraisement and notice in
writing, according to the form in the 2nd 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 distress war-
rant 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
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 being satisfied, by the affidavit of the bailiff
or officer, that there are no reasonable means of executing the war-
rant without breaking open such outer doors or windows, may grant
an order in writing, addressed to a of the Court, authorising
him to break open, or have broken open, such doors and windows.
(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, unless the doors or windows are opened.

20. The bailiff may inipomid 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 5 days from such seizine, on 24 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 Court directs.
23. If any claim is made to or in respect of any property seized
under a distress warrant, or in respeal of flie proceeds or value
thereof, by any person not being the, debtor, the Registrar, on the
application of the baillilf who seized the property, may issue a
summons calling before the Court the claimant and the person who
obtained the warrant, and thereupon 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 aflidavit 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 enforced 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 the Court that the landlord or bailiff had no
reasonable ground for believing that the goods were properly dis-
trainable, 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 compensa-
tion shall bar any action in respect of injury caused by the distress.

26. The Court may, at any time, on the application of the debtor
and on reasonable 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 lo the contrary, the distrained
property shall be sold on the day mentioned in the notice of
appraisement and sale hereinbefore referred to, and such sale shall
be conducted art, 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 realising the proceeds, pay
over the amount thereof to the Cotirt, 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 may be thereby occasioned.






PART 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 premises
by the year, nor the payable in respect of the tenancy by the
year, exceeds 300 dollars, if the tenant is in arrears for 2 montlis
and deserts the demised preinises 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 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 10 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 22 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 Ordi-
nance to a distress warrant, to make an order directing a bailiff to
put the applicant in possession of 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 deter-
mination 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 becaine due.

31. No personal property shall be removed from any premises
under any writ from any Court, other than writs in Crown suits,
until the clairn for rent due to the landlord or lessor or person
entitled to receive, the rerit is satisfied : Provided that such claim
shall not in any case exceed the amount due for 6 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 thereafter before
seizure by the bailiff under such warrant, seized wider any writ or
warrant of the Supreme Court, the said bailiff shall not seize such
personal property, but, shall return the warraut into Court and
deliver copies thereof to the execution creditor or his agent and to
the debtor, either personally or by leaving the sarne, at the place
where the goods were seized.
(2) Such execution creditor or debfor or either of them niav apply
to the Court to discharge or suspend the warraut within the time
and in the manner mentioned in section 121, and if no such applica-
tion 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 war-
rant the amount thereof: Provided that if the amount mentioned
in the distress warrant exceeds the aritount due for 6 months rent,
the Registrar shall pay the amount of rent due for 6 months and the
costs and no more.

33. If any execution is paid off after the issue of a distress war-
rant, the bailiff shall immediately execute the distress warrant.

24. The following persons may, either personally or by their
attorneys or agents, apply for warrants to distrain for arrears of rent
due to the 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 lunaties for the lunatics;
(4) receivers appoitted 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 mortgagee is
in possession;
(7) trustees for the estate over which the trust extends;
(8) lessees against their under-lessees;
(9) the Registrar for premises seized under execution, if rented
to tenants by the person agalust 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 their
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, 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 of rent so distrained for shall be a complete discharge to
the tenant for the rent or for so much thereof as niay 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 advisable to do so, the Court, or the
Magistrar may require the party so applying to produce a written
authority to distrain, signed by one or more of the persons jointly or
together interested with him.

36. No property found at the time, of distraint in or on any pre-
mises as to which an arrear of rent is due shall be renioved 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 landlord or lessor
shall be entitled to require the balliff, 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 other-

wise.

37. If the tenant or lessee or person in possession or occupation of
any premises on which there is an arrear of ren't due, recoverable by
distress,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 under the bailiff from
distraining the saine, it, shall be lawful for the Court, on application
verified by affidavit, to authorise 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, wherever the same
may be found, at any time within 30 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 : Provided thaf it shall be lawful for the bailiff, with-
out 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 30 and 37 has
been sold bona fide and for a sufficient consideration, before or
after removal from the premises distrained, to person not
knowing and not having the means of knowing that the same was
liable to distraint for rent, or was reinoved or carried or was
to be removed or carried away, so as to prevent or under the land-
lord 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 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 such tenant or lessee or person in such frandulent removal
or carrying away, shall be deenied 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
trespasser, on account of any defect or want of form in the pro-
ceeding relating thereto, nor shall the party distraining be deemed
a trespasser from the beginning on account of any irregularity

which may afterwards 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 OR 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 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; 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 my [or our] aggent to act for 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 descibe
the property],as to which I am [or we are] entitled to distrain as Owner, [or Lessee,
Trustee, Guardian, etc.]alone [or together with E.F.]etc.

Dated the day of ,19
(Signed.) A.B.,
FORM No. 2.
Affidavit in support of Application for Warrant of Distress.
HONGKONG.
In the Supreme Court, Summary Jurisdiction.
A.B., Plaintiff.
v.
C.D., Defendant.
1, 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 day of 19 ,
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 the goods anf 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 day of ,19 ,according to the provisions of the
Distress for Rent Ordinance,1883.
Before proceeding to distrain under this warrant,you shall demand payment of the
Dated the day of ,19 .
[L.S.] (Signed.)


FORM No. 4. [s.17.]
Inventory,Appraisement, and Norice.
HONGKONG.
In the Supreme Court, Summary Jurisdiction.
To C. D.
Take notice thah I have this day seized the goods and chattels contained 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.
Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorised person levying distress. Employment and payment of bailiffs. Fees. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Form of affidavit. Form and issue of warrant. 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. 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 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 tenant. [for punishment, cf. No. 1 of 1898, s. 6 (2)]. Protection against irregularity in proceedings. Exclusion of Crown rents. [cf. No. 6 of 1875.]

Short title. Interpretation. Issuing of warrants of distress. Punishment of unauthorised person levying distress. Employment and payment of bailiffs. Fees. Limitation of time for issue of warrant. Application for warrant. Form of power of attorney. Form of affidavit. Form and issue of warrant. 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. 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 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 tenant. [for punishment, cf. No. 1 of 1898, s. 6 (2)]. Protection against irregularity in proceedings. Exclusion of Crown rents. [cf. No. 6 of 1875.]

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