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

cause a great deal may be lost in the carrying of it home." But by 2 W. & M. c. 5, s. 3, after reciting that "no sheaves or cocks of corn loose or in the straw, or hay in any barn or granary, or on any hovel, stack or rick, can by the law be distrained or otherwise secured for rent," it is enacted that it shall be lawful for any person having rent arrear and due upon any demise, &c., to seize and secure any sheaves, &c., upon any part of the ground charged with the rent, and to lock up or detain the same in the place where the same shall be found, until the same shall be replevied, and in default of replevying, within the time aforesaid (five days), to sell the same after appraisement; but so that the corn, &c., so distrained shall not be removed by the person distraining to the damage of the owner, out of the place where the same shall be found or seized, but be kept there (as impounded) until replevied or sold. It has been decided that as by the express words of the 2nd section of this statute the landlord is required to sell "for the best price that can be gotten" for the goods, he is precluded from imposing a condition that hay, &c., shall be consumed on the premises, although under 56 Geo. III. c. 50, s. 11, any purchaser from the tenant would have been necessarily bound by such a condition. Hawkins v. Walrond (1876), 1 C. P. D. 280, 45 L. J. C. P. 772, 35 L. T. 210, 24 W. R. 824. By 11 Geo. II. c. 19, s. 8, power was given to a landlord having rent in arrear to distrain growing corn, grass, or other product, and to cut, gather, carry, and lay up when ripe in the barn or other proper place on the premises, and in convenient time to appraise and sell the same in the same manner as other goods may be distrained and disposed of. The benefit of the statute 2 W. & M. (since 4 Geo. II. c. 28, s. 5) extends to the grantee of a rent charge (Johnson v. Faulk ner, 1842, 2 Q. B. 925), although the 11 Geo. II. c. 19, s. 8, does not; Miller v. Green (Ex. Ch. 1831), 8 Bing. 92.

...

4. As to the qualified exception of beasts of the plough and instruments of husbandry. This exception is laid down by an old statute (51 Hen. III. stat. 4) which is said to be in affirmance of the common law. Per WATSON, B., in Keen v. Priest (1859), 4 H. & N. 236, 238. The statute enacts"Que nul home- soit distreine per ses beasts queux gainont son terre per les bailiffes le roy, ne per autres, tanque come il trove auters chateux sufficient dont ils poient lever le det.' In Com. Dig. Distress (c) it is said (referring to the above statute): "Beasts of the plough, or which improve the land, as sheep, &c., shall not be distrained if there be other sufficient distress; which was an affirmance of the common law." In Keen v. Priest, supra, it was admitted that sheep belonging to the tenant could not be distrained, and the Court held that the exemption applied to sheep placed on the land by a third person who had purchased the grass from the tenant. WATSON, B. said:

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

"From the earliest period of our history, it has been the law that sheep are not distrainable, if there are other goods on the premises sufficient to satisfy the debt." In the same case the Court held that colts, steers, and heifers (not being broken or used for the plough) were not "animals that gained the land," and were not within the exemption.

5. As to the instruments of a man's trade or profession. The exemp tion is recognised in Gorton v. Falkner (1792), 4 T. R. 565, 2 R. R. 463, and in Fenton v. Logan (1833), 9 Bing. 676, 3 M. & Scott, 82. And in Nargett v. Nias (1859), 1 El. & El. 439, 28 L. J. Q. B. 143, 5 Jur. (N. S.) 198, it was decided by a considered judgment of the Queen's Bench that an action of trespass lies, as well as an action on the case, for distraining tools of a labourer, though not actually in use, while there were other goods not tools of trade, on the premises, sufficient to have satisfied the distress.

While in actual use, tools of trade, as well as other things in actual use, are privileged for another reason, as it is put in the principal case, "Whilst it is in the custody of any person and used by him, it is a breach of the peace to take it." And this appears to be an absolute privilege while the actual use continues. In Field v. Adames (1840), 12 Ad. & E. 649, to a plea in trespass justifying the distraining of a horse, cart, and other chattels damage feasant, a replication — "that the horse, &c., were at the time of the distress in the actual possession and under the personal care of, and then being used by, the plaintiff,”was held good. It may be here noted that the head-note in the report of Fenton v. Logan, supra, "An implement of trade is only privileged from distress if it be in use and if there be no other distress on the premises" is not borne out by the decision, although extracted from an expression in the judgment of TINDAL, C. J., as there reported. The expression obviously arises from some confusion of thought either in the Judge or in the reporter. In the case of Wood v. Clarke (1831), 1 Cr. & J. 484, cited in the judgment, there was no allegation that the thing (a stocking-frame) was in actual use at the time of the distress, although it was stated that it was delivered to the workman for the purpose of his trade. The judgment of PARK, J., apparently states the correct ratio decidendi. He says: "Gorton v. Falkner (supra) is a decisive authority against the plaintiff, for it shows that implements of trade can only be distrained if not in use, and there be no other distress."

A qualified exception to distress is made by the 45th section of the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61), which enacts that "where live stock belonging to another person has been taken in by the tenant of a holding to which this Act applies, to be fed at a fair price agreed to be paid for such feeding by the owner of such stock to the tenant, such stock shall not be distrained by the landlord

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

for rent where there is other sufficient distress to be found," &c. In Masters v. Green (1888), 20 Q. B. D. 807, 59 L. T. 476, 36 W. R. 591, the question was whether this section applied to cattle on a holding pursuant to an agreement by which the tenant in consideration of £2, allowed the owner "the exclusive right to feed the grass on the land for four weeks." It was held that these cattle were not within the section. For they were not "taken in" by the tenant to be fed, &c. (See also notes on Nos. 1 & 2 of "Agistment," 2 R. C. 550.)

By the Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21, 5. 4), and the County Courts Act, 1888 (51 & 52 Vict. c. 43, s. 147), there is an absolute exemption from distress of the wearing apparel and bedding of the tenant or his family, and the tools and implements of his trade to the value of £5. But this does not extend to any case where the lease, term, or interest of the tenant has expired, and where possession of the premises in respect of which the rent is claimed has been demanded and where the distress is made not earlier than seven days after such demand.

By the Lodgers' Goods Protection Act (34 & 35 Vict. c. 79) the goods of lodgers are, under certain conditions, protected from distress by a superior landlord. "Lodger" has been defined as a lodger in the popular sense, and the test appears to be that the immediate landlord retains some sort of control, as master of the house, although it is not necessary that he reside on the premises. Phillips v. Henson (1877), 3 C. P. D. 26, 47 L. J. C. P. 273, 37 L. T. 432, 26 W. R. 214; Morton v. Palmer (c. a. 1881), 51 L. J. Q. B. 7, 45 L. T. 426, 30 W. R. 115; Ness v. Stephenson (1882), 9 Q. B. D. 245. But in Heawood v. Bone (1884), 13 Q. B. D. 179, 51 L. T. 125, 32 W. R. 752, a person who occupied rooms where he carried on the business of a publisher, but slept and resided elsewhere, was held not to be a lodger within the meaning of the Act, although he had no key of the outer door, but was admitted by his landlord every morning. STEPHEN, J., in giving judgment, says: "We have to say what, upon the whole, we think the statute means by the term 'lodger.' I have come to the conclusion that it meant 'lodger' in the popular sense of the word, that is, one who sleeps upon the premises. In the ordinary use of language, a person of average education would not call the appellant a lodger, because lodging, in the common acceptation, means living and residing at a place; and if you went further, and asked what was meant by living and residence, in general, the answer would be that the person fulfilled the description if he slept there, that is, if he undressed and went to bed, staying there till he rose the next morning in the usual way. If it is asked why the Act should have meant this rather than anything else, the answer is that the object was to prevent poor persons from VOL. IX. -43

--

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

having their homes broken up by distress for rent by the superior landlord."

There are various other statutory exemptions:- Rolling stock in a "work" such as a colliery, &c. (35 & 36 Vict. c. 50). See Easton Estate & Mining Co. v. Western Waggon, &c. Co. (1886), 54 L. T. 735. Gas-fittings supplied by gas-undertakers under the Gas Works Clauses Act, 1847. This includes gas-stoves. Gas Light, &c. Co. v. Hardy (1886), 17 Q. B. D. 619, 56 L. J. Q. B. 168, 55 L. T. 585, 35 W. R. 50. The same privilege is extended by the Electric Lighting Act, 1882 (46 & 47 Vict. c. 56, s. 25) to a variety of objects supplied by electric light undertakers.

It is to be observed that there are a variety of new statutory conditions imposed upon the powers of distress in agricultural holdings by the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61).

AMERICAN NOTES.

The doctrine of the Rule is substantially stated in our elementary works. Simpson v. Hartopp is cited in 2 Wood on Landlord and Tenant, sect. 540, and in 2 Taylor on Landlord and Tenant, sects. 587, 596.

Mr. Wood lays it down that at common law nothing can be taken on distress unless it can be returned in the same good plight in which it was taken, the law regarding it as a mere pledge. This exempts fixtures, and perishable property, such as milk and the flesh of animals freshly slaughtered. But with these exceptions, all movable property upon the premises, whether belonging to the tenant or a stranger may be taken, the landlord having a lien in respect to the place where it is found rather than the person of the owner. Himely v. Wyatt, 1 Bay (So. Car.), 102; Blanche v. Bradford, 38 Penn. St. 344; 80 Am. Dec. 489; Matthews v. Stone, 1 Hill (New York), 565; Keller v. Weber, 27 Maryland, 660; Davis v. Payne's Adm'r, 4 Randolph (Vir ginia), 332. As in the days of slavery, on a negro slave of a stranger acci dentally on the premises. Bull v. Horlbeck, 1 Bay (So. Car.), 301. But fixtures permanently separated from the freehold by the tenant are distrainable. Reynolds v. Shuler, 5 Cowen (New York), 323.

Goods of the tenant's wife are distrainable although her separate property. Blanche v. Bradford, 38 Pennsylvania State, 344; 80 Am. Dec. 489. So of a hired piano-forte. Trieber v. Knabe, 12 Maryland, 491; 71 Am. Dec. 607, citing Simpson v. Hartopp. The Court said: "From the rendition of the judgment in Simpson v. Hartopp, supra, to the present time, the correctness of the opinion of the Court therein has never been questioned, so far as we know, either in England or this country. The most that has been contended for is, that within the reason and principles of that decision, the Courts are authorized, with a view to the public good and convenience, to embrace within the exceptions to the general rule a large class of cases in which there would be great hardship and serious interruption to the safe dealings of the com munity, if they were not so included. We are free to confess this view has been enforced with a good deal of sound reasoning and good sense. It rests

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

mainly on the quasi feudal origin of the right of distress, the change of the business and intercourse of the world since distress became a part of the law of landlord and tenant, and the facilities which an enlightened policy should afford to the meritorious pursuits of life. This aspect of the question the curious will find very forcibly put by Baron PARKE, in Muspratt v. Gregory, 1 Mee. & W. 650; by Justice BAY, in Youngblood v. Lowry, 2 McCord (S. Car.), 39 (13 Am. Dec. 698); and by Chief Justice GIBSON, in the case of Riddle v. Welden, 5 Whart. (Penn.) 1. We refer to these opinions as embracing all which perhaps could be urged in furtherance of the widening of the circle of exemption. But as we have already in effect said, we cannot judicially, in the present state of the law of Maryland, give our assent to them.

"If the present case can be brought under any of the heads or classes of exempted articles specified by Lord Chief Justice WILLES, it must be under the fifth, which is, 'the instruments of a man's trade or profession.' Now we have seen this freedom from distress is not absolute, but dependent on circumstances which are not in this case; the article was not in use as an instrument of trade or profession, nor was there a sufficiency of other goods on the premises to meet in full the distress. In the case before us there is an absence of both of these ingredients. It is not shown by the agreed statement of facts that this piano, at the time of the distress, was in use as an instrument of profession, nor are we permitted by the terms of the submission to infer such use from the profession of music, teacher of the hirer; and besides, it is expressly stated there was an insufficiency of other property on the demised premises to satisfy the rent due the landlord. This being so, the plaintiffs cannot bring themselves within any of the above enumerated exceptions. Nor do we think they can successfully avail themselves of the doctrine which protects the baggage of a transient boarder and lodger at a public inn. The only case which we have been able to find in any way countenancing such a pretension is the one to which we have referred: Riddle v. Welden, 5 Whart. (Penn.) 1. That undoubtedly goes the whole length of declaring the goods of a boarder are not responsible for rent due by the keeper of a boarding-house. To the eminent jurist who gave that opinion, we are second to none in yielding the homage of profound respect; but notwithstanding this, we are unable to find him supported either in England or in this country, and as a consequence, we must adhere to what we consider the long and well-established doctrine - a doctrine which, it is apparent from the legislation of many of the States of the Union, and also of our State (act of 1845, c. 130), the community recognized and acted upon. If anything were wanted to fortify the very able opinion in Simpson v. Hartopp, Willes, 512, it may be found in Lord DENMAN'S opinion, in his review of the case of Muspratt v. Gregory, 3 Mees. & W. 677, subsequently concurred in by Baron PARKE, in Joule v. Jackson, 7 Id. 454; and that of Chief Justice TINDAL, in Fenton v. Logan, 9 Bing. 676, 23 Eng. Com. L. 416."

But the right to take a stranger's goods is limited to those in use by the tenant by the owner's consent, and does not embrace such as are in the tenant's possession in circumstances that put the landlord on inquiry as to the title. So property of a boarder, unless in use by the tenant, cannot be