No. 10.

Clarke v. Millwall Dock Company, 17 Q. B. D. 499, 500.

poses of trade may be essential, because the exception was probably founded on the view that where a person having the right to possession parts with the possession, and entrusts his goods to another for the purposes specified in the exception, and by parting with the possession renders the goods physically subject to seizure upon that other's premises, the goods ought not to be thereby rendered liable at law to distress.

I do not mean to decide that that is the principle, but

*

it may as well be that as any other principle. It is [*500] sufficient here to say that we cannot reject the word "delivered" in applying the exception. It was said, on behalf of the plaintiff, that the term " delivered" is not found in the exception as stated by Coke (Coke, Litt. 47 a.) and Blackstone (3 Bl. Com. 8), and in some of the older authorities. True; but both in Coke and Blackstone the exception is stated in terms so large as to include cases with respect to which a course of decisions has established that the goods are not privileged from distress; and all the illustrations given by Coke and Blackstone of cases within the exception imply the idea of delivery of the goods for the specified purposes. In the present case there was no delivery in any sense of the term. The goods were originally in the possession of Gilbert for the purpose of building the ship; they remained in his possession until the first instalment was paid, and up to that time were liable to distress for rent owing to his landlord. After the first instalment was paid the possession remained in Gilbert, and France and the plaintiff, as his executor, had only the property in them. That being so, can it be said that, giving the widest interpretation to the term "delivered," there was any delivery here within the meaning of the exception? I think the facts dispose of the suggestion that there was any such delivery. As to the illustrations put in argument, when an article is delivered to be repaired or altered the privilege of the exception would clearly apply, and where a carriage is built for a purchaser, and when it has been completed and paid for, the purchaser allows it to remain on the builder's premises for the purpose of having some alteration made, I will not say that those facts might not constitute a delivery within the meaning of the exception, because the purchaser having the right to possession has entrusted the possession to the builder for the purpose of altering the carriage. Here the purchaser of the ship never had the right to possession at any time.

No. 10. Clarke v. Millwall Dock Company, 17 Q. B. D. 500, 501.

He had the property in the ship, but the possession always remained with Gilbert.

I arrive at my conclusion in this case with some regret, but the exception has been laid down in these terms and acted upon for so many years that it is impossible now to extend it by judicial construction. If extended it must be by the interference [501] of the Legislature. For these reasons I am of opinion that the decision of POLLOCK, B., was right, and must be

affirmed.

*

Lord ESHER, M. R. The law with respect to goods privileged from distress is part of the common law. It has been stated over and over again, and is fixed by the judgment of WILLES, C. J., in Simpson v. Hartopp, Willes, 512, 1 Smith's Leading Cases, 8th ed., 450 (No. 9, p. 651, ante). That learned Judge's statement of the law was made after very careful consideration, and has always been accepted as true and correct. He laid down five exceptions to the general law in the form of rules. Some of those rules apply to goods which are the property of the person upon whose premises a distress is made. The rule in question applies to goods which are the property, not of the person upon whose premises the distress is made, but of another, and it is in these terms: 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. Afterwards in the same judgment, the CHIEF JUSTICE stated the rule again, and pointed out the reason for it, thus: "Things sent or delivered to a person exercising a trade to be car ried, 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 be made up, are privileged for the sake of trade or 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." Now all the exceptions are stated in the form of rules, not of principles, and that distinction was upheld by the Court of Exchequer Chamber in Muspratt v. Gregory, 1 M. & W. 633, 3 M. & W. 677, where the Court was asked to find that they were principles but refused to do so. The rule in question is stated to be " for the sake of trade and commerce.' If that reason, contained in the rule itself, as stated by WILLES, C. J., be the real reason for the rule, I think it is absolutely necessary to say the words" sent or delivered" form an essential part of it. It is

that

No. 10 Clarke v. Millwall Dock Company, 17 Q. B. D. 501-503.

the principal essence of the rule, contained in the first part of it, and founded upon the idea that a man would not

send or deliver goods if they were liable to be distrained [* 502] upon. They are to be sent by a person whose property they are, and they are to be sent to a person exercising a trade to be wrought, &c., " in the way of his trade or employ. If something is delivered which it is not part of his trade or employment to deal with, the thing delivered is not privileged from distress. The case was put in argument of goods not sent or delivered but manufactured into some article upon the tenant's premises, and it was said that under certain circumstances there might be something equivalent to delivery within the meaning of the rule. I should say that is true, if the article to be manufactured has been completed, and the person who has the property in it leaves it upon the demised premises in order to have some alteration made, because the law would not require him to go through the idle ceremony of taking the article away and returning it. In such a case I think there would be an equivalent to delivery of the thing manufactured. Here nothing was sent or delivered in any sense. I will assume, as the LORD CHANCELLOR has done, that the property in the ship passed to the plaintiff or his testator when the instalments of the price were paid, but it is a necessary implication from the contract that the shipbuilder had the right to possession, and the plaintiff had no such right, until the ship was completed. The plaintiff never had possession of the ship in fact; he never sent or delivered it to Gilbert, and there was nothing in the transaction between them equivalent to sending or delivering. I am therefore of opinion that the rule does not apply to this case, and that the ship was not privileged from distress under the circumstances.

FRY, L. J. I am of the same opinion. The statement of the rule in Gisbourn v. Hurst, 1 Salk. 249, was accepted in Simpson v. Hartopp, Willes, 512, 1 Smith's Leading Cases, 8th ed., 450 (No. 9, p. 651, ante), which has ever since been the leading case on the subject, and all the illustrations of that rule involve the idea of sending or delivery of some article to the person on whose premises the distress is made. I am of opinion that we are not at liberty to depart from that rule, which was also accepted as a * binding exposition of the law in the year 1838, in [*503] Muspratt v. Gregory, 1 M. & W. 633, 3 M. & W. 677.

Nos. 9, 10. Simpson v. Hartopp; Clarke v. Millwall Dock Company. — Notes.

It is to be observed that in all the cases to which the rule has been applied there was, in fact, a sending or delivery. In Muspratt v. Gregory, the Court clearly thought that sending or delivery was an important part of the rule; and it is impossible not to see that sending or delivery is important in considering the question of principle. The rule would be greatly enlarged if the words "sent or delivered" were struck out, because, as it stands, the rule only applies where the right to possession in the goods has been in the person for whom they are being wrought or manufactured. I assume that the property was in the plaintiff in this case, but in order to make the rule apply, I think both the property and the right to possession should be in a person who delivers the goods for the purpose of having them wrought, &c., in the way of trade. There is no pretence for saying that the plaintiff was entitled to possession of the ship in question here. There may, perhaps, be cases in which a constructive delivery would be sufficient, but here there was no equivalent for actual delivery. I am of opinion that the defendants are entitled to our judgment.

Appeal dismissed.

ENGLISH NOTES.

The order of the categories of things exempted from distress at common law as mentioned in the judgment in the former principal case (see p. 653, supra) will be followed in this note.

1. As to things annexed to the freehold.

The case of Hellawell v. Eastwood (1851), 6 Exch. 295, 20 L. J. Ex. 154, is one which has given rise to much discussion. It was there decided that "mules" used for spinning cotton, fixed by means of screws, some into the wooden floors of a cotton-mill, and some by being sunk into the stone flooring, and secured by molten lead, are distrainable for rent. Baron PARKE (at 6 Exch. pp. 311-313) lays down the law as follows: "At common law, things fixed to the freehold, and which become part of it, could not be distrained for two reasons. Lord Chief Baron GILBERT says that 'Whatever is part of the freehold cannot be distrained, for what is part of the freehold cannot be severed from it without detriment to the thing itself in the removal; consequently, that cannot be a pledge which cannot be restored in statu quo to the owner. Besides, what is fixed to the freehold is part of the thing demised; and the nature of the distress is not to resume part of the thing itself for the rent, but only the inducta et illata upon the soil or house. See Gilbert on Distresses, pp. 34 and 48. And on the

Nos. 9, 10. Simpson v. Hartopp; Clarke v. Millwall Dock Company. - Notes.

sole ground that they were parcel of the freehold, by construction of law, keys, windows, and shutters, concerning the realty, are not liable to be distrained.

"It was, besides, a rule at the common law, that things which could not be restored in the same plight and condition could not be distrained for rent. Co. Litt. 47; Gilbert on Distresses, in the part already cited. We have, therefore, to decide whether these machines fall within either of these categories, for otherwise they are not protected. They do not fall within the latter; for, upon being taken to the pound, they might be brought back without damage to themselves. They are not of a perishable nature, and would not suffer by a careful removal. If it were necessary to take some to pieces, in order to remove them, that circumstance would make no difference; for that might occur with chattels with respect to which there is no question, as for instance, post beds; they could not be carried to the pound without being first taken to pieces; and the distrainee would have no reason to complain that they were restored to him in the disjointed state at the pound, where he must attend to receive them. It would save him the trouble of taking the bedsteads to pieces again, in order to replace them, if they had been restored entire. Nor does it make any difference that the distrainee would be obliged to incur the expense of refixing the machinery. Precisely the same objection might be made to the distress of any article which it required expense to carry back from the pound, and to restore to its former position. The distrainee at common law must be at the trouble and expense of taking back his goods from the pound. This practical inconvenience is now obviated by the power of impounding on the premises.

"The only question therefore is, whether the machines when fixed were parcel of the freehold; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations; first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed integre, salve, et commode, or not, without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causâ, or in that of the "Year Book," pour un profit del inheri tance ("Year Book" 20 Hen. VII. c. 13), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel.

"Now, in considering this case, we cannot doubt that the machines never became a part of the freehold. They were attached slightly, so as to be capable of removal without the least injury to the fabric of the building or to themselves; and the object and purpose of the annexa