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landlord sold by auction a right of eatage of pasture, which the plaintiff purchased, and the proceeds were paid to the landlord; held, Parke, B., dissentiente, that a contract by the landlord might be implied not to distrain cattle put on the land to consume the eatage, and that a distress of the plaintiff's cattle, for rent accrued previous to the sale, was unlawful. But where the plaintiff, being about to take an apartment of the defendant's tenant, was promised by the defendant that so long as he paid the rent to the tenant, his property should be safe; and having paid part, and tendered the residue, the defendant without notice of the tender, distrained his goods for rent due from the tenant; it was held, that his right to distrain was not barred by his promise.b

bill of ex

As distress is the highest remedy known to the law, taking Taking a a bond or bill of exchange as a security for the rent, will not bond or deprive the landlord of his right to distrain; for it cannot change operate as an extinguishment of the rent until payment. will not Where the plaintiff gave a note of hand for rent in arrear, deprive and took a receipt for it when paid, the defendant afterwards the landdistrained for the rent; the plaintiff brought trespass; and it lord of his was holden, that notwithstanding this note, the defendant might distrain. right to distrain, for it is no alteration of the debt until payment.(1) And if a note be given under an agreement that it should operate as a suspension of the right of distress, in order to give it that effect, such agreement must be specially pleaded in bar to the avowry, as well as the fact that the note was given on account of the rent.e

Horsford v. Webster, 1 C. M. & R. 696. 1 Gale, 1.
Welsh v. Rose, 6 Bing. 638. (19 Eng. C. L. 185.)

Rol. Ab. tit. Extinguishment. Drake v. Mitchell, 3 East, 251. But a judgment obtained on a bond is an extinguishment of the rent. B. N. P. 182.

B. N. P. 182. Davis v. Gyde, 4 Nev. & M. 462. (29 Eng. C. L. 166.) 1 H. & W. 50.

e

Davis v. Gyde, supra.

(1) (A note or a judgment in covenant does not take away the right to distrain. Snyder v. Kunkleman, 3 Penn. 487.)

*SECTION IV.

WHAT MAY, AND WHAT MAY NOT BE DISTRAINED.

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1.-Of goods and chattels which may be distrained in general.] DISTRESS being, at common law, considered merely as a pledge to compel the tenant to perform the duty required, nothing could be distrained by the lord, except such things as could be restored to the owner in the same plight and condition as they were in at the time when they were taken. In general, however, all moveable chattels and personal effects found on the premises, may be distrained for rent, whether they belong to the tenant or to a stranger;(1) and all chattels trespassing upon the land, may be distrained, damage-feasant.

Where a person, driving cattle to London, put them into a field to graze for a night, with the permission of the landlord and leave of the tenant, it was held, that the landlord might distrain them for rent due out of the premises on which they grazed. But it seems, that if under such circumstances there be an express agreement by the landlord not to distrain, or if such agreement can be inferred from his conduct, it will pro*795 tect the cattle from distress. Cattle which are on the land by way of agistment, may be distrained for rent. It is settled law, that where a stranger's beasts come on the land of another through the negligence of the owner, they may be distrained immediately by the landlord, for rent in arrear; but where they come into the land through the defect of fences, which the tenant is bound to repair, they cannot be distrained until

1 Inst. 47, a. Gilbert Dist. 34. 3 Bl. Com. 7. Per Lord Kenyon, C. J., in Gorton v. Falkner, 4 T. R. 567. But animals feræ naturæ, and other things wherein no person can have available property, are not distrainable. Co. Litt. 47. Finch, 176. Com. Dig. Distress, C. Deer, however, in an inclosed ground are distrainable. Davies v. Powel, Willes, 47.

Fowkes v. Joyce, 3 Lev. 260. 2 Vent. 131. 2 Saund. 290. But the owner of the cattle was afterwards relieved in equity on the ground of fraud in the landlord, id. And it seems to be settled law at this day, that cattle belonging to a drover being put into a close, with the consent of the occupier, to graze only one night, in their way to a fair or market, are not liable to be distrained for rent. Tate v. Gleed, 2 Saund. 290, 5th ed. See Peacock v. Purvis, post, 799.

Horsford v. Webster, ante, 793.

d Co. Litt. 161.

(1) (Kessler v. M'Conachy, 1 Rawle, 435. The tenant is liable over to a stranger whose goods are distrained. Ibid.)

they have been levant et couchant; that is, until they have been lying down and rising up on the premises for a night and a day; for then the law assumes, that the owner of the cattle had notice that they are in the land, and that it is his own negligence not to take them away."

Though in general all moveable chattels found on the premises out of which the rent issues, are distrainable for rent in arrear, yet, to this rule there are many exceptions, which we shall proceed to notice.

с

from dis'tress.

*796

2.-Things privileged in favor of trade.] Things delivered Things to a person exercising a public trade, to be carried, wrought, privileged worked up, or managed, in the way of his trade or employ, such as cloth sent to a tailor's shop, to make a garment; yarn sent to a weaver's to be woven; a horse standing in a smith's shop to be shod, and the like, are, by the common law, privileged from distress for rent, for the sake of trade and commerce, which could not be carried on, if such things under these circumstances could be distrained for rent due from the person in whose custody they are. On the same principle, the goods of the principal in the hands of a factor for sale, cannot be distrained by the factor's landlord; for the advancement of trade equally requires that such goods should be placed in a factor's hands for sale, as in a carrier's for carriage. So goods deposited in a warehouse or wharf, for safe custody until an opportunity for selling them should arise, cannot be distrained for rent due in respect thereof. So where a beast was sent by one butcher to another butcher's shop to be slaughtered; it was held, that the landlord of the premises could not distrain the carcase for rent. So where goods were deposited on the premises of an auctioneer for sale, they were held, to be protected from distress; for, said Bayley, B., " interest reipublicæ, to bring buyers and sellers together, at fixed places, where goods may be brought for the purposes of sale and exchange. This species of privilege has been from time to time increased in extent, according to the new modes of dealing established between the parties by the change of times and circumstances, one of which modern modes of dealing is the case of a factor." On the same principle, chattels are privileged from distress at an inn; but, to exempt them from distress, they must be actually within the premises of the inn itself; for where a racehorse was placed at a stable half a mile from the inn, it was

* 2 Saund. 290. Gilbert Dist. 45. 2 Bl. Com. 8.

Per Willes, C. J., in Simpson v. Hartopp, Willes, 515, which is usually cited as a leading case on this subject. Gisbourne v. Hurst, Salk. 249. 1 Inst. 47, a. Wood . Clarke, 1 C. & J. 484, post, 798.

Gilman v. Elton, 3 B. & B. 75. (7 Eng. C. L. 355.) 6 Moore, 243.

Thompson v. Mashiter, 1 Bing. 283. (8 Eng. C. L. 324.) 8 Moore, 254. Mathias v. Mesnard, 2 C. & P. 353. (12 Eng. C. L. 166.)

Brown v. Shevill, 2 Ad. & Ell. 138.
Adams v. Grane, 1 C. & M. 380.

(29 Eng. C. L. 51.) 4 Nev. & M. 277.

3 Bl. Com. 7.

A convey

them

selves be

distrainable.

held not to be privileged; and that the landlord of the premises was justified in distraining it. And it seems that a carriage standing at livery, is not exempted from distress."(1)

Where the boat of the plaintiff, who was an alkali manufacance sent turer, was lying in a canal communicating with a public navifor goods is not pri- gation, for the purpose of being loaded with salt from a salt vileged if manufactory, which was contiguous, the court of Exchequer the goods held, (Parke, B., dissentiente,) that the boat was not privileged from distress for arrears of an annuity issuing out of the land in which the salt works were erected, and granted by the manufacturer of the salt; for the salt itself, which was to be sent by the boat, was not privileged, and there was no case which extended the privilege to a conveyance sent for goods, which were not themselves privileged from distress; besides, it was not necessary for the protection of that trade that the pri*797 *vilege should exist, for the salt works might be carried on without the possession of the boat being parted with by the plaintiff, and if he retained the possession of the boat, it was clearly privileged.

other suffi

tress.

Things 3.-Things conditionally privileged.] Beasts of the plough, privileged sheep, implements of husbandry, the tools and utensils of a if there be man's trade, and the instruments of a man's profession, are not cient dis- distrainable, provided there be other sufficient distress on the premises. But if there be no other sufficient subject of distress than growing crops, which are not immediately productive, it seems that the landlord may distrain beasts of the plough, or other things privileged sub modo, for he has a right to apply those things which are immediately productive in satisfaction of the rent; and if the landlord used due diligence, by appraisement by proper persons, to ascertain whether there be a sufficient distress, without resorting to things conditionally privileged, he will not be liable to an action for illegal distress, for distraining beasts of the plough or other things so privileged, though it appear after the sale that there would have been sufficient distress without taking such things; for he is not to be affected by a subsequent sale, at higher prices than

• Crosier v. Tomkinson, 2 Lord Kenyon, 439.

с

Francis v. Wyatt, 1 Bl. 483. 3 Burr. 1498.

Muspratt v. Gregory, 1 Mees & Wels. 633. 2 Gale.

a 51 Hen. III, st. 4. 1 Inst. 47, a. 161, a. Simpson v. Hartopp, Willes, 512. Gilbert on Dis. 36. Gorton v. Falkner, 4 T. R. 565.

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(1) (Francis v. Wyatt [cited in support of the position in the text] would now hardly be acknowledged as authority in Westminster Hall, the decisions since the American Revolu tion being inconsistent with it. Per Gibson, C. J., in Brown v. Sims, 16 S. & R. 138. The goods of a third person placed in the way of trade on storage in the warehouse of one, who used the trade and business of a merchant, and received goods and merchandise from mer. chants and traders on storage are not liable to distress for rent though found on the premises.

was expected; nor under such circumstances need he postpone the sale of beasts of the plough to that of other things."

leged.

#798

Where the plaintiff, a manufacturer, furnished a weaver not Machineonly with materials which he was to work, but also with ry when frames and other implements, for the purpose of being used in not privithe weaver's house in working materials; it was held, that though the materials so delivered by the manufacturer, were privileged from distress for rent due to the weaver's landlord, yet that the machinery was not privileged, unless there were other goods on the premises sufficient to satisfy the rent due. "This case," said Lord Lyndhurst, C. B., in delivering the judgment of the court, "does not turn on the privilege of a workman, with respect to the implements and machinery by which his trade is to be carried on, but upon the privilege of the person by whom the workman is employed. It appears to us, that the employer's privilege is confined to the materials which he supplies, and does not include the machinery. None of the cases go beyond this, that the material to be worked up is privileged; that the conveyance by which it is carried to and from the place of manufacture is privileged; that it is privileged in the hands of the carrier while he is carrying it, in the hands of the factor to whom it is consigned, and in the hands and warehouse of a wharfinger, where it is lodged and deposited by the factor. There is no case or dictum that the machinery by which it is to be manufactured is included in the privilege."b So it has been held, that a threshing-machine, which was lent to the tenant, and which was lying on his premises, not in actual use, was distrainable, there not being other sufficient distress on the premises.

4.-Things in actual use.] Things in actual use, as a horse upon which a man is riding, or an axe in the hands of a man who is cutting wood, and the like, are privileged from distress; in order to prevent a breach of the peace, which might be occasioned by an attempt to distrain them. In trover for a stocking-loom, which had been distrained for rent, where it appeared that an apprentice was using the loom at the time it was taken, the court held that it could not legally be taken while the apprentice was using it. But though wearing apparel, if in actual use, cannot be distrained, yet if it be not in use, it may be distrained, even though it be only taken off *for *799

Jenner v. Yolland, 6 Price, 5. 2 Chitty, 167. (18 Eng. C. L. 286.) Beasts of the plough are, however, distrainable for poor rates, though there be other sufficient distress on the premises; by reason of the analogy between such distress and an execution. Hutchins v. Chambers, 1 Burr. 579.

54.

Wood v. Clarke, 1 C. & J. 484. 1 Tyr. 314. See Simpson v. Hartopp, Willes,

Fenton v. Logan, 9 Bing. 676. (23 Eng. C. L. 416.) 3 M. & Scott, 82.

1 Inst. 47, a. Simpson v. Hartopp, Willes, 54. Stony v. Robinson, 6 T. R. 131. ⚫ Watts v. Davis, S. N. P. 666.

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