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1903.July 1and 6.
THE ANGLO-ORIENTAL FURNISHING COMPANYv. SAMARASINHA.
R., Colombo, 22,920.
Pu/chase-hire system of agreement—Furniture hired by tenant—Non-paymentof hire of furniture—Arrears of house rent—Landlord's lien on furniture—Right of landlord to secure the furniture by removing it to anotherhouse.
Where furniture was given on hire by the plaintiff to O on- thepurchase-hire system, and 0, being a tenant of the defendant, wentinto arrears of rent and the defendant removed the hired furniturefrom O’s house to another house for greater security,—
Held, in anaction for deliveryofthefurniture,thatdefendant was
entitled to retain ituntil the rentdue tohim waspaid,unless it could
be shown that it was brought into the house not for permanent use, butfor a temporary purpose.
The removalofthe furniturebythelandlord,from-O’s house to-
another houseforgreater securitydidnot terminatethe right of
CTION for delivery of possession of two pieces of furniturehired by one Osthmuller from the plaintiffs, and wrongfully
detained by the ‘ defendant on the pretext that defendant had alien over them for arrears1 of house rent due to him by Osthmuller.
The following wps the agreement between the plaintiffs andOsthmuller: —®
“ This agreement made between the Anglo-Oriental FurnishingCompany, hereinafter referred to as the owners, of the one part, and
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L. OsthmuUer of Colombo, hereinafter called the hirer, of the, other part. The owners agree, at request of the hirer, to let on hireto the hirer, D. L. OsthmuUer, furniture as per annexed list, andin consideration thereof the hirer agrees as follows:—
" (1) To pay the owners, on the 6th day of October, 1902, a rentor hire instalment of Bs. 14.16, and Bs. 12 on the 6th day of eachsucceeding month for eleven months.
“ (2‘) To keep and preserve the said furniture from injury(damage by fire included).
“ (3) To keep the said furniture in the hirer’s own custody at theabove-named address, and not to remove the some or permit orsuffer the same to be removed without the owner’s previousconsent in writing.
" (4) That if the hirer do not duly perform this agreement theowners may (without prejudice to their rights under this agree-ment) terminate the hiring and retake possession of the saidfurniture. And for that purpose leave and license is herebygiven to the owners (or any agent or servant or any other personemployed by the owners) to enter any premises occupied by thehirer, or of which the hirer is tenant, to take possession of thesaid furniture without being liable to any suit, action, indictment,or other proceeding by the hirer or any one claiming under thesaid hirer, D. L. OsthmuUer.
“ (5) That if the hiring should be terminated by the hirer(under clause (a) below) and the said furniture be returned to theowners, the hirer shall remain liable to the owners for arrears ofhire up to the date of such return, and shall not, on any groundwhatever, be entitled to any allowance, credit, return, or set-off inrespect of payments previously made.
“ (6) That unless and until .the full sum of Bs. 146.16 be paidthe said furniture shall be and continue to be the sole property ofthe owners.
“ The owners agree—
“ (a) That the hirer may terminate the hiring by delivering upto the owners the said furniture.
“ (h)'If the hirer shall punctually pay the full sum of Bs. 146.16by the payment of Bs. 14.16 at date of signing, and by the furtherpayment of eleven monthly instalments of Bs. 12 in advance, asaforesaid, the said furniture shall become the’sple and absoluteproperty'of the hirer,
The issues agreed to were: (1) Has tlje defendant a lien over thearticles of furniture claimed, though they were brought into thedefendant’s house subject to the agreement that, if the saidOsthmuUer did not duly pay to the plaintiff, the amount of hire on*.
1903.July 1and 6.
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IMS. certain days the plaintiff was to resume possession of the furniture?
July 1 and 6. (2) Did defendant lose his lien by taking the articles to anotherhouse?
The Commissioner (Mr. A. Seneviratne) dismissed the plaintiffs’action in these terms:—
" The case reported in 3 Browne, 213, shows that the landlord’stacit hypothec does attach to furniture hired by the tenant. Onthe first issue I hold that the defendant has a lien over the almirahand sideboard, although they were hired under the agreement setout in the plaint. So long as the defendant has the goods underhis control, his lien is good. He has for greater security removedthe goods to another house. I think this makes no difference.
" On the second issue, I hold that the defendant did not lose hislien by taking the articles to another house ”.
The plaintiff appealed.
The case was argued on 1st July, 1903.
W. Jayawardene, for appellant.—The purchase of the goodsclaimed had not been completed. They were therefore hiredgoods, and could not have been brought into the house of Osthmullerwhich belonged to the defendant with the intention of being lefttheir permanently. The landlord’s lien does not attach in such acase. (Voet, 20, 2, 5; Berwick’s Translation, p. 311; Van Leeuwen,Kotze’s Translation, vol. 11., pp. -96, 97; and Cave v. Clay, 4
N.L. B. 30.)
The lien was not perfected by a judicial decree and seizure onexecution. Ramanathan, 1877, p. 62; Grenier, 1874, pt. 3, p. 33;Vandentraaten, p. 103; 3 Burge, 600; Grotius, 2, 48, 36, and 41.By the landlord removing the goods from the house in respectof which the rent was due to another house he has lost thelien.
A. Jayawardene, for respondent.—The purchase-hire systemmeans really an intention to sell on the part of the owner ofthe goods. The goods brought into the house were ,for theconstant use of Osthmuller, and were intended to be with himpermanently. The defendant< has a lien over such goods, beinginvecta et illat< ' The removal of the furniture to another housed,oes not terminate the Jierf, which means the right to hold or havethe goods as security, for the debt. A judicial decree is necessaryonly to enable the landlord1 to sell the invecta et ittata-. But he isfree to have his hands on the furniture till the arrears of rent arepaid.
Cur. adv. vult
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6th July, 1903. Gbenier, A.J.—
The point involved in this appeal is a very simple one, and muchof the argument that was addressed to me applied to a state offacts which is not present in this case. The plaintiff says that hegave certain articles of furniture to the defendant’s tenant on whatis known as the purchase-hire system. This furniture was in thedefendant’s house which the tenant had rented out. The tenantadmittedly failed to pay rent for the months of December, 1902,and January and February, 1903, and there is now due from himto the defendant the sum of Rs. 45. The plaintiff’s action is torecover from the defendant only two of the articles of furniture,namely, a jakwood almirah and a jakwood sideboard, and he praysthat the defendant be decreed to deliver possession of the same tohim or to pay their value, Rs. 39. To this claim the defendantanswered that as his tenant was in default of payment of rent he,as the landlord, is entitled to retain the property which is now inhis possession until the rent due to him is paid. In other words,he claims a right of lien over the property, and there can be noquestion that the law is on his side; he is entitled to retain it,unless it can be shown that the property was brought into thehouse not for permanent use, but for a temporary purpose. Now,looking to the character of the articles, there can be no doubt thatthey are such as are of permanent use, and the law, I think, isperfectly plain that the landlord’s tacit hypothec does attach tothis property.
It was contended that the removal by the defendant of thefurniture from one house to another terminated the right ofretention, and the lien not having been’ perfected by a judicialdecree and seizure, lapsed. No authorities were cited to me insupport of this proposition, which seems to me to be tbe result ofa misapprehension of the law relating to a landlord’s lien and theextent of its operation. The landlord cannot sell properly, subjectto his lien, without a decree of Court, but that is quite differentfrom the right which the lanndlord has, in the case where the tenanthas quitted the house leaving arrears of rent .unpaid, to retain theproperty, and if need be to sell it under a judicial decree and thusrender Ins lien effectual; add for this purpose it does not matterwhere the property is, so long as it is in the possession of thelandlord, as in this case.y
The judgment of the Court below will be afBrmefd.,
July 4 and 0.
THE ANGLO-ORIENTAL FURNISHING COMPANY v. SAMARASINHA