No. 10. Clarke v. Millwall Dock Company, 17 Q. B. D. 494, 495.

Appeal from a judgment of POLLOCK, B.

Claim for £1721 as damages for the wrongful detention by the defendants of a ship called the Swillington, the property of the plaintiff as executor of W. France, deceased.

The defence in substance was that the defendants lawfully detained the ship upon premises occupied by one Gilbert as tenant to the defendants under a distress for arrears of rent due from him to them; that they detained the ship for a reasonable time until they were paid the sum of £1721, being the amount of arrears of rent, and then delivered it to the plaintiff and Gilbert.

The action was tried by POLLOCK, B., without a jury, at the Middlesex sittings in June, 1885, when the material facts proved in evidence, or admitted, were as follows:

In 1882, Gilbert contracted to build for France a steamship according to certain specifications and models. The contract was contained in correspondence between the parties, and by the terms of it the price was to be £8000, to be paid by nine equal instalments, each instalment to become due as certain specified parts of the ship were completed.

Gilbert began the work about the end of November, 1882, in a dry dock occupied by him as tenant to the defendants.

France died on the 27th of August, 1883, and the plaintiff was the sole executor of his will.

On the 11th of September, 1883, the defendants seized the ship upon the premises let to Gilbert, under a distress for [* 495] arrears of *rent, amounting to £1721, due from Gilbert to them in respect of his tenancy of the dry dock.

The ship was detained by the defendants under the distress until the 2nd of October, 1883, when the plaintiff paid the sum of £1721 to the defendants under protest, in order to obtain the release of the ship, and the defendants thereupon gave up possession of the ship.

At the date of the execution of the warrant of distress, the ship was nearly completed, and France had paid all the instalments due under his contract with Gilbert as each part of the ship was built.

During the progress of the work the materials and things necessary to carry out the building of the ship were supplied to Gilbert by the various makers thereof, and no materials had been sent or delivered by France or the plaintiff to Gilbert to be used for the building of the ship.

No. 10. Clarke v. Millwall Dock Company, 17 Q. B. D. 495, 496.

On these facts, POLLOCK, B., gave judgment for the defendants, holding that the ship was not privileged from distress for rent at the time the defendants seized and detained it, and therefore that the detention was lawful.

The plaintiff appealed.

Finlay, Q. C. (McCall, with him), for the plaintiff. It is clear that under the contract between France and Gilbert the property in so much of the ship as was completed passed to France as each instalment was paid. Ex parte Lambton, In re Lindsay, L. R., 10 Ch. 405, 44 L. J. Bank. 81; Clarke v. Spence, 4 Ad. & E. at p. 466. The ship was thereupon privileged from distress on Gilbert's premises, being within the rule stated in Coke upon Littleton, 47 a." Valuable things shall not be distrained for rent for benefit and maintenance of trades, which by consequent are for the commonwealth, and are there by authority of law; as a horse in a smith's shop shall not be distrained for the rent issuing out of the shop, nor the horse, &c., in the hostry; nor the materials in the weaver's shop for making of cloth, nor cloth nor garments in a tailor's shop, nor sacks of corn or meal in a mill, nor in a market, nor anything distrained for damage feasant, for it is in custody of the law, and the like." The rule is also stated [* 496] by Blackstone (3 Bl. Com., p. 8) thus: "Valuable things in the way of trade shall not be liable to distress, as a horse standing in a smith's shop to be shoed, or in a common inn; or cloth at a tailor's house, or corn sent to a mill or a market, for all these are protected and privileged for the benefit of trade." The rule has been applied in many cases: Simpson v. Hartopp, Willes, 512, 1 Smith's Leading Cases, 8th ed., 450 (No. 9, p. 651, ante); Muspratt v. Gregory, 1 M. & W. 633, 3 M. & W. 677; Wood v. Clarke, 1 C. & J. 484; Gilman v. Elton, 3 B. & B. 75 (23 R. R. 567; Thompson v. Mashiter, 1 Bing. 283, 8 Moore, 254 (25 R. R. 624). It is true that in Simpson v. Hartopp, WILLES, C. J., in stating the second of the five sorts of things which at common law were not distrainable, gives this definition: "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." But it is submitted that delivery of the goods is not an essential part of the rule. There is no such qualification of the rule in the statements of it by Coke and Blackstone. The exception in favour of trade from the general law of distress for rent should be extended rather

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No. 10. - Clarke v. Millwall Dock Company, 17 Q. B. D. 496, 497.

than limited. It is anomalous and a hardship that one man's goods should be seized on the premises of another to pay that other's debt. The tendency of the decisions should be on public grounds, to extend the exemptions from distress rather than to limit them. Adams v. Grane, 1 Cr. & M. 380, 3 Tyrw. 326. When a thing is manufactured for another, and the price has been paid by the person for whom it has been manufactured, the property passes to him; and if he allows it to remain on the premises of the manufacturer for the purpose of having some alteration made in it, it could hardly be contended that the thing manufactured was liable to distress for rent by the landlord of the premises. Yet in such a case there would be no sending or delivery by the person for whom the thing was made. It is contended that the element of delivery is not essential in all cases. It is enough to render goods privileged from distress if they are upon the premises of a person who is not the owner for the purpose of being dealt with in the way of trade.

[* 497]

[*He also referred to Miles v. Furber, L. R., 8 Q. B. 77, 42 L. J. Q. B. 41; Parsons v. Gingell, 4 C. B. 545, 16 L. J. C. P. 227; Woods v. Russell, 5 B. & A. 942 (24 R. R. 621); Atkinson v. Bell, 8 B. & C. 277; Holderness v. Rankin, 2 De G. F. & J. 258, 29 L. J. Ch. 753.]

Cohen, Q. C., and W. Graham, for the defendants. It is contended that on the true construction of the contract between France and Gilbert the property in this ship had not passed to France or the plaintiff when the defendants' distress was put in. But if it had, the ship was not privileged from distress, because the case has not been brought within any of the established exceptions to the general rule of law that goods on the demised premises are liable to distress for rent whether they are the property of the tenant or not. It is for the plaintiff to show that the materials for making the ship were delivered to Gilbert to be wrought or manufactured in the way of his trade. The exception is in favour of trade and commerce, and it is founded upon the view that public trade would suffer if persons were prevented from sending their goods to be wrought or manufactured on the premises of others by reason of the goods being subject to distress for rent. Here there was no delivery of the goods, nor any equivalent for delivery. The mere fact that goods on the demised premises do not belong to the tenant does not exempt them from distress.

No. 10. Clarke v. Millwall Dock Company, 17 Q. B. D. 497, 498.

Thus where a carriage is bought in a shop, if the purchaser leaves it there it is subject to distress for the rent of the shop. The rule laid down by WILLES, C. J., in Simpson v. Hartopp, Willes, 512, 1 Smith's Leading Cases, 8th ed. 450 (No. 9, p. 651, ante), ought not to be extended in the way suggested by the argument for the plaintiff.

[He also cited Muspratt v. Gregory, 1 M. & W. 633, 3 M. & W. 677; Gisbourn v. Hurst, 1 Salk. 249; Joule v. Jackson, 7 M. & W. 450, 10 L. J. Ex. 142.]

Finlay, Q. C., replied.

Lord HERSCHELL, L. C. The sole question in this case is whether an unfinished ship, which was being built for the plaintiff in a dry dock rented by the builder from the defendants, was or was not exempt from distress for rent. The defendants distrained the ship, and the plaintiff alleges that the [*498] distress was unlawful because the property was in him, and the circumstances were such as to exempt the ship from dis

There is no question that, primâ facie, all goods found on the demised premises are subject to distress, but it is said that this case comes within one of the exceptions which have been engrafted on the general law. The facts are that Gilbert, having rented the dry dock from the defendants, entered into a contract with the plaintiff's testator to build for him this ship; the price was to be paid in equal instalments, each instalment becoming due as certain portions of the ship were completed. The instalments due had been paid, and the work was approaching completion. It is not necessary to decide whether, when the instalments were paid, the property in the ship passed to the plaintiff, though the case of Clarke v. Spence, 4 A. & E. 448, certainly affords strong ground for saying that it did pass. Assuming that it did, it is, at least, equally clear from the same case that Gilbert was entitled to retain the ship for the purpose of finishing it and earning the remaining instalments. The exception which is said to apply here is that described in the 2nd rule stated by WILLES, C. J., in Simpson v. Hartopp, Willes, 512, 1 Smith's Leading Cases, 8th ed., 450 (No. 9, p. 651, ante). That rule had been laid down in substantially the same terms in Gisbourn v. Hurst, 1 Salk. 249. It was repeated in Muspratt v. Gregory, 1 M. & W. 633, 3 M. & W. 677, and has been acted upon in many other cases. Assuming that, as I have said, the property in the ship was in the

No. 10.

Clarke v. Millwall Dock Company, 17 Q. B. D. 498, 499.

plaintiff when the distress was made, the case is one of property belonging to another being on the demised premises, and so far, therefore, within the rule. I agree also that the ship was on Gilbert's premises for the purpose of being "wrought, worked up, or managed in the way of his trade or employ." But it is contended by the defendants that, though on Gilbert's premises for these purposes, there was no thing delivered to him within the meaning of the exception. On the other hand it is said that there need not be a delivery; that it is enough if the goods are on the premises for the purpose of being wrought and worked up; and that when the principle is looked at upon which the excep [*499] tion is * founded, it does not necessarily involve the idea

of delivery. But I am of opinion that we are limited in this case by the strict terms of the exception. It is very difficult to find any sound principle upon which to explain the law of distress and to support the various decisions. No doubt the general law which enables a landlord to distrain the goods of a third person upon the tenant's premises is, as was said in argument, anomalous, and the exception in question is also anomalous. I think that we cannot go beyond the terms of the definition of the excep tion. There have been many cases in which the courts would be disposed to go beyond those terms, as in Wood v. Clarke, 1 C. & J. 484, but in that case it was held that, though materials deliv ered by a manufacturer to a weaver to be manufactured by him on his own premises were privileged from distress, a frame delivered with the materials to be used in the manufacture was not privileged, unless there was otherwise a sufficient distress upon the premises, because it did not come within the terms of the excep tion. Looking at the terms of the exception, it is as much a necessary part of it that the goods should be delivered for the purposes of being wrought, worked up, or managed in the way of the trade, as that they should be on the demised premises for those purposes. There is no more reason for rejecting the term "delivered" from the exception than there is for rejecting the terms with respect to the goods being on the demised premises to be wrought, &c., in the way of trade. I am of opinion that the exemption must be limited to cases in which there has been a delivery for the purposes of trade, and that it does not extend to all cases in which goods are on the premises for those purposes. If we might consider the question of principle, delivery of the goods for the pur