And the following cannot be distrained, if there is sufficient distress besides :

4. Beasts of the plough and instruments of husbandry.

5. The instruments of a man's trade or profession. But things belonging to a third person, which are on demised premises for the purpose of being wrought up or manufactured by a tenant in the way of his trade, are not privileged from distress, unless they have been. delivered by that third person to the tenant for that purpose.

Simpson v. Hartopp.

Willes, 512-517 (s. c. 1 Smith's Leading Cases, 8 ed. p. 450).

[512]

Distress. Things privileged. - Implements of Trade. Implements of trade are privileged from distress for rent, if they be in actual use at the time, or if there be any other sufficient distress on the premises. But if they be not in actual use, and if there be no other sufficient distress on the premises, then they may be distrained for rent.

The opinion of the Court was delivered, as follows, by WILLES, Lord CHIEF JUSTICE. Trover. This comes before the Court on a special verdict found at the Leicester assizes, held at Leicester on the 3d of August, 1743.

*The plaintiff declared against the defendant for that [*513] on the 20th of October, 1741, he was possessed of one frame for the knitting, weaving, and making of stockings, value £20, as of his own proper goods, and being so possessed he lost the same, and that afterwards, to wit, on the 18th of August, 1742, it came to the hands of the defendant, who knowing the same to be the goods of the plaintiff afterwards, to wit, on the 19th day of the same month of August, converted the same to his own use; damages £30.

The defendant pleads not guilty; and the jury find that the plaintiff on the 27th of March, 1741, was possessed of one frame for knitting, weaving, and making stockings, value £8, as his own proper goods. That upon that day he let the said frame to John

Armstrong at the weekly rent of 9d. and so from week to week as long as they the said Nathaniel Simpson (the plaintiff) and John Armstrong should please; by virtue of which letting the said John Armstrong was possessed of the said frame at the said rent until the time after mentioned, when the same was seized as a distress for rent by the defendant. That the said John Armstrong is by trade a stocking weaver, and used the said stocking-frame as an instrument of his trade, and continued the use thereof, and his apprentice was using the said stocking-frame at the time therein. after mentioned, when the same was seized by the defendant as a distress for rent. That the said John Armstrong held of the defendant a certain messuage and tenement in the parish of Woodhouse and county of Leicester, by virtue of a lease to him the said John Armstrong thereof granted by the defendant, under the yearly rent of £35, for a term of years not yet expired, and was in the actual possession of the same when the said stocking-frame was distrained for rent by the defendant. That on the 19th of December, 1741, John Armstrong was indebted to the defendant in £53 for arrears of rent of the said messuage and tenement; and that the said stocking-frame was then upon the said messuage in the possession of the said John Armstrong, and that there were not goods or chattels by law distrainable for rent in the said messuage without the said stocking-frame sufficient to satisfy the said rent so in arrear at the time when the said stocking-frame

was seized as a distress for the said rent. That on the [* 514] said 19th of December the * defendant entered in the said messuage and tenement, and then and there seized the said stocking-frame on the said premises as a distress for the said rent so in arrear, as the said John Armstrong's apprentice was then weaving a stocking on the same frame. And that the defendant (though often requested) hath refused to deliver the said stockingframe to the said plaintiff, and continues to detain the same. The special verdict concludes, as usual, by submitting the matter to the opinion of the Court whether the said stocking-frame was by law distrainable for the said arrears of rent or not; and if the Court should be of opinion that it was not, they assess the damages of the plaintiff at £8, &c.

Upon this special verdict three questions arise,

First, whether a stocking-frame has any privilege at all, as being an instrument of trade; or whether it be generally distrainable

No. 9. Simpson v. Hartopp, Willes, 514, 515.

for rent as other goods are, even though there was sufficient distress besides.

Secondly, though it may be so far privileged as not to be distrainable if there be no other goods sufficient, yet whether or not it may not be distrained if there be not sufficient distress besides.

Thirdly, though it be distrainable either in the one case or the other when it is not in actual use, yet whether or no it has not a particular privilege by being actually in use at the time of the distress, as the present case is.

I shall but touch upon the two first questions, because they are not the present case; but yet it may be proper to consider them a little to introduce the third, which is the very case now in question.

There are five sorts of things which at common law were not distrainable.

1st. Things annexed to the freehold.

2d. Things delivered to a person exercising a public trade to be carried, wrought, worked up, or managed in the way of his trade. or employ.

*3d. Cocks or sheaves of corn.

[*515]

4th. Beasts of the plough and instruments of husbandry. 5th. The instruments of a man's trade or profession. The first three sorts were absolutely free from distress, and couid not be distrained, even though there were no other goods besides. The two last are only exempt sub modo, that is, upon a supposition that there is sufficient distress besides.

Things annexed to the freehold as furnaces, millstones, chimneypieces, and the like, cannot be distrained, because they cannot be taken away without doing damage to the freehold, which the law will not allow.

Things sent or delivered to a person exercising a trade to be carried, wrought, or manufactured in the way of his trade, as a horse in a smith's shop, materials sent to a weaver, or cloth to a tailor to be made up, are privileged 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.

Cocks and sheaves of corn were not distrainable before the statute 2 Will. & M. c. 5 (which was made in favour of landlords), because they could not be restored again in the same plight and

No. 9. Simpson v. Hartopp, Willes, 515, 516.

condition that they were before upon a replevin, but must necessarily be damaged by being removed.

Beasts of the plough, &c., were not distrainable in favour of husbandry (which is of so great advantage to the nation), and likewise because a man should not be left quite destitute of getting a living for himself and his family. And the same reasons hold in the case of the instruments of a man's trade or profession.

But these two last are only privileged in case there is distress enough besides; otherwise they may be distrained.

*

These rules are laid down and fully explained in Co. Lit. 47 a., b. and many other books which are there cited; [* 516] and there are many subsequent cases in which the same doctrine is established, and which I do not mention be cause I do not know any one case to the contrary.

From what I have said on this head, the second question is likewise answered; for as the stocking-frame in the present case could only be privileged as it was an instrument of trade, we think that it might have been distrained if it had not been actually in use, it being found that there was not sufficient distress besides. These are the words in Carth., 358, in the case of Vinkinstone v. Ebden, "the very implements of trade may be distrained if no other distress can be taken."

But whether or no this stocking-frame being actually in use at the time of the distress gives any further privilege is the third and principal question in the present case. And we are all of opinion that upon this account it could not be distrained for rent for these two plain reasons :

1st. Because it could not be restored again upon a replevin in the same plight and condition as it was, but must be damnified in removing, for the weaving of the stocking would at least be stopped if not quite spoiled, which is the very reason of the case of corn in cocks, &c.;

2dly, Whilst it is in the custody of any person and used by him, it is a breach of the peace to take it. And these are two such plain and strong reasons that even if it were quite a new case I should venture to determine it without any authority at all; but I think that there are several cases and authorities which confirm this opinion.

It is expressly said in Co. Litt. 47 a., that a horse whilst a man is riding upon him, or an axe in a man's hand cutting wood, and

No. 10.- Clarke v. Millwall Dock Company, 17 Q. B. D. 494.

the like, cannot be distrained for rent. In Bracton and several other old books there is a distinction made between catalla otiosa and things which are in use. It was held in P. 14 H. VIII. pl. 6, that if a man has two millstones and only one is in use, and the other lies by not used, it may be distrained for rent. In Read's Case, Cro. Eliz. 594, it was holden that yarn carrying on a 'man's shoulders to be weighed could not be distrained [* 517] any more than a net in a man's hand, or a horse on which

a man is riding. So in The Viscountess of Bindon's Case, Moor, 214, it is said that if a man be riding on a horse, the horse cannot be distrained, but if he hath another horse on which he rides sometimes, this spare horse may be distrained.

I could cite many other cases to the same purpose, but I think that these are sufficient to support a point which has so strong a foundation in reason, especially since there is but one case which seems to look the contrary way, which is the case of Webb v. Bell, 1 Sid. 440, where it was holden that two horses and the harness fastened to a cart laden with corn might be distrained for rent. But in the first place I am not clear that this case is law; and besides it is expressly said in that case that a horse upon which a man was riding cannot be distrained for rent; and therefore a quære is made whether if a man had been on the cart the whole had not been privileged, which is sufficient for the present purpose, it being found that the stocking-frame was to be in the actual use of a man at the time when it was distrained.

For these reasons, and upon the strength of these authorities we are all of opinion that this stocking-frame, the apprentice being actually weaving a stocking upon it at the time when it was distrained, was not distrainable for rent, even though there were no other distress on the premises; and therefore judgment must be for the plaintiff.

Clarke v. Millwall Dock Company.

17 Q. B. D. 494-503 (s. c.,55 L. J. Q. B. 378; 54 L. T. 814; 34 W. R. 695).

on the demised Premises to be dealt with in the way of Trade.

Things belonging to a third person, which are on demised premises for the purpose of being wrought up or manufactured by the tenant in the way of his trade, are not privileged from distress by the landlord unless they have been sent or delivered by such third person to the tenant for that purpose.