Sproule A-G CJ:

This matter has come before the Supreme Court by way of revision, and because of the importance of the principle involved, I have invited my brother, Mr. Palgrave Simpson J, to help by sitting with me in banco.

We are concerned with the construction of s. 725 of the Civil Procedure Code, not, of course, merely academically, but in its application to the facts of this concrete case.

Section 725(1), dealing with writs of distress, says:

In pursuance of the writ aforesaid, the Sheriff shall seize the moveable property found in or upon the house or premises mentioned in the writ and in the apparent possession of the defendant ... or so much of it as may be sufficient to meet the landlord's claim and the costs of seizure.

We have to substitute for the Sheriff, the bailiff of the District Court; and the "defendant" is the tenant.

The Sheriff or Bailiff is the landlord's agent and can only seize lawfully what the landlord may seize. Section 725(2) sets out a list of what he may not seize; and our decision must needs be concerned, incidentally, with the question how far that list is exhaustive.

Section 724, however, renders the issue of the writ a judicial and not a ministerial act. It is probable, therefore, that the landlord is thus protected from an action for damages for wrongful seizure and trespass to goods, but not so the Sheriff, except in so far as the Public Authorities Protection enactments may operate in his aid.

With this short preface, I proceed to deal with the facts of this case before us.

The landlord acted by his attorney, who was also rent-collector. The attorney obtained a writ of distress, and the Bailiff seized all the goods in and upon the demised premises.

Thereafter three claimants appeared, and an issue was tried under s. 728. The claimants said they were under-tenants and that the goods seized (or most of them) were theirs. Evidence was admitted (whether relevant or not) and accepted, that their sub-rents had been paid up to date and without arrears, to their principal tenant, the tenant of the house from the landlord.

The tenant's lease contained a proviso forbidding under-letting without the landlord's consent, but his Counsel bases no argument upon that proviso before us. On the other hand the learned District Judge has held, and, if I may say so, with good sense, that the attorney is almost certainly bound to have known that his tenant would and had under-let portions of the demised premises.

That must, however, upon the evidence, be the utmost limit of belief or suspicion to be imputed to the landlord and his agent the bailiff. The attorney did not know what portions of the house had been under-let, nor to whom. He says that he remembers having seen the three claimants on or about the premises when he went rent-collecting, but never knew they were undertenants; but the three claimants go further and swear that they had never seen the landlord or attorney at all before coming into Court.

There had been an earlier writ of distress levied three months before, and goods of at least one of the three claimants had then been seized without protest, claim or objection; but that affair had been settled before sale and the goods released.

Regarding the present seizure, again, there is no evidence of any protest, claim, or objection at the time of seizure. Nor is there evidence of any protest, claim, or objection at the time of seizure. Nor is there evidence of sign-boards, labels, locked doors, or any other indication whatsoever to the eye or mind, that the goods seized in the tenant's premises did not belong to the tenant, if indeed such matters are relevant.

The learned District Judge has accepted the claimants' evidence that they were sub-tenants and that the goods claimed were theirs, and has ordered the release of these. The landlord applies to us to reverse that order. The tenant, it seems, has absconded, and the claimants do not appear before us to support the order