Henry K. Wampole & Co. v. Hervay Chemical Co. of Canada

the relationship of landlord and tenant is admitted or established and which prevents the tenant questioning the landlord's title, so as to make it apply to a case in which the real question is as to the existence of that relationship, seems to be wrong in principle and is quite unwarranted by the authorities. Rennie v. Robinson (1 Bing. 147) and Morton v. Woods (L.R. 4 QJB. 293) discussed. The courts, at the instance of a person claimed to be a tenant, ought to Anglin determine the status of an alleged landlord for the purpose of ascer- C.J.C. taining whether or not the relationship of landlord and tenant exists between them, and the consequent legality of a distress. Farwell & Glendon v. Jameson (26 Can. S.C.R. 588) followed.

Judgment of the Court of Appeal (41 B.C. Rep. 230) reversed.

APPEAL from the decision of the Court of Appeal for British Columbia (1), reversing the judgment of the trial judge, Murphy J. (2), and dismissing the appellant company's action in damages for illegal distress.

The material facts of the case and the questions at issue are fully stated in the above head-note and in the judgment now reported.

ANGLIN C.J.C.-The record discloses the following material and relevant facts necessary to be considered on the present appeal.

The action is for damages for illegal distress. The learned trial judge held the distress to be illegal and awarded $500 as damages. The Court of Appeal, reversing, upheld the legality of the distress and dismissed the action. The present appeal is by the plaintiff, the Canada Morning News Company Limited, a company incorporated under the laws of British Columbia in October, 1924.

The defendants are W. G. B. Thompson and Francis Edward Binnington, carrying on business as bailiffs, who effected the distress in question, and Low Yee Quan and Wai Hon, who signed the distress warrant.

The actual form of the signature is as follows:- The Chinese Nationalist League,

(Per Low Yee Quan, Pres.)

(Per Wai Hon, Secy.)

(1) (1929)

41 B.C. Rep. 24; [19291 1 W.W.R. 548.

(2) (1928) 40 B.C. Rep. 230; [1928] 3 W.W.R. 35.

S.C.R.]