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Nos. 9, 10.

Simpson v. Hartopp; Clarke v. Millwall Dock Company.


taken. Riddle v. Welden, 5 Wharton (Penn.), 1; Matthews v. Stone, 1 Hill (New York), 565; Jones v. Goldbeck, 14 Philadelphia, 173. If the tenant had such possession as indicates ownership, the landlord's knowledge of the real ownership will not defeat his remedy. Reeves v. McKenzie, 1 Bailey (So. Car.), 497.

A stranger's property may not be taken when it is in possession of the tenant in the way of his trade. As materials to be manufactured or the manufacture therefrom, Hoskins v. Paul, 9 New Jersey Law, 110; Knowles v. Pierce, 5 Delaware, 178; goods on storage, Briggs v. Large, 30 Pennsylvania State, 287 ; or in the hands of a commission merchant to be sold or stored, Bevan v. Crooks, 7 Watts & Sergeant (Penn.), 452; Owen v. Boyle, 22 Maine, 47; Connah v. Hale, 23 Wendell (New York), 462; or a horse at livery, Youngblood v. Lowry, 2 McCord (So. Car.), 39 ; 13 Am. Dec. 698; cotton sent to be pressed, Rea v. Burt, 8 Louisiana, 509; goods in an auction store for sale, Himeley v. Wyatt, 1 Bay (So. Car.), 102, although the auctioneer has made advances on them, Re Bailey, 2 Federal Reporter, 850.

But otherwise when consigned to be sold at a certain price, without charge for storage, the tenant to have all he can make above that price, Goodrich v. Bodley, 35 Louisiana Annual, 525.

Among articles exempt at common-law are necessary cooking utensils of a householder, Van Sickler v. Jacobs, 14 Johnson (New York), 434; account books of a merchant or shopkeeper. Davis v. Arledge, 3 Hill (So. Car.), 170.

Goods sold by the tenant to his successor or others are not distrainable, Clifford v. Beems, 3 Watts (Penn.), 246; Neale v. Clautice, 7 Harris & Johnson (Maryland), 372; unless allowed to remain on the premises an unreasonable length of time, Gilbert v. Moody, 17 Wendell (New York), 354.

Goods of the tenant levied on by execution but not removed are distrainable. Newell v. Clark, 46 New Jersey Law, 363. All these matters are much regulated by local statutes.

See note, 17 Am. Dec. 458. “The tendency of our decisions is upon the whole against the right of distraining goods not the property of the tenant.” Taylor on Landlord and Tenant, sect. 584. “In the case of Brown v. Sims, 17 Sergeant & Rawle, 138, Ch. J. Gibson said: “The right to distrain the property of a stranger rests on no principle of reason or justice. It is a feudal prerogative handed down from times when chattels were of little account, and when it may have been impolitic, if not unreasonable, to embarrass the lord with responsibility to one who had thrust his property in the way of the remedy to compel a performance of the services. But commerce, which wrought a change in the habits and pursuits of men, and gave an importance to pero sonal transactions, necessarily produced a relaxation of the rule, so as to admit of a variety of exceptions, some of them of early origin, in favour of trade. These have been so often enumerated that it would be useless to

pass in review here, particularly as no two of the judges seem to have taken the same view of the principles applicable to them, or of the ground they were sustained. But be this as it may, there is little reason to doubt that the exceptions will, in the end, eat out the rule. The most plausible argument in support of it is that as the landlord is supposed to have given


on which

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

credit to a visible stock on the premises, he ought to be allowed recourse to everything he finds there. But this recourse cannot be presumed to have been in the view of the parties, where it would defeat the very object of the contract. . . . Where the course of the business must necessarily put the tenant in possession of the property of his customer, it would be against the plainest dictates of honesty and conscience to permit the landlord to use him as a decoy, and pounce upon whatever should be brought within his grasp, after having received the price of its exemption in the enhanced value of the rent.' And Bay, J., in delivering the opinion of the Court in Youngblood v. Lowry, 2 McCord (S. Carolina), 39; 13 Am. Dec. 698, said: “I am very much disposed to think that this whole system of distress for rent was inapplicable to the circumstances originally of the British colonies, where the ancient feudal system was utterly unknown, and nothing but colonial dependence could have permitted it to gain a footing in America in subservience to British policy.'”

In re Ross's Trusts, 41 L. J. Ch. 180. — Rule.


(Statute of 22 & 23 Car. II. c. 10.)

As to Advancement see No. 1 of “ADVANCEMENT,” and notes, 2 R. C. 251 et seq.


(v. C. WICKENS, 1871.)


UNDER the Statute of Distributions the division amongst descendants is

per stirpes. Where the nearest of kin are brothers and sisters and there are also children of deceased brothers and sisters, the latter, though not the next of kin, may claim as representatives of the brother or sister from whom they spring, and may stand in the place of that brother or sister for the purpose of distribution.

This privilege of representation does not extend to any more remote descendants of brothers and sisters than children, and does not apply to any case where the next of kin are all more remote than brothers and sisters.

In other cases, collaterals equally near of kin take per capita.

In re Ross's Trusts.

41 L. J. Ch. 130–134 (s. c. L. R., 13 Eq. 286).

Distributions (Statute of). Lineal Descendants. Division per stirpes. [130] If an intestate leaves no children, but grandchildren and great-grand

children only, they take per stirpes and not per capita. Petition. — Alexander Ross by his will, dated the 7th of November, 1819, bequeathed a share of personal estate upon trust for each of his daughters, Margaret Ross and Mary Ross, for her

No. 1. -In re Ross's Trusts, 41 L. J. Ch. 130, 131.

life, with limitations in favour of her children or child; and directed that if there should be no such child, then, after the * decease of such respective daughter, and such failure [* 131] of her issue, the share so respectively allotted to her as aforesaid, should go over and be in trust for the person or persons, who under the statutes made for the distribution of the estates of intestates would then be entitled thereto, in case he (the testator) was then to die possessed thereof, and intestate, and to be divided between or among such persons, if more than one, in the proportions in which the same would be divisible by virtue of the same statutes. The testator then appointed his trustees to be his executors.

He died on the 27th November, 1819, and his will was afterwards duly proved.

He left his widow and five children, three sons, Alexander Ross, Thomas Ross, and William Francis Ross, and the two daughters named in his will, and no more, him surviving.

Alexander Ross, the son, died in 1842. He was twice married. By his first wife he had three children, who died infants, and unmarried. By his second wife he had three children, viz. :Frederic Dumaresq Ross; the petitioner, Mary Dumaresq (now) M. D. Fletcher; and the petitioner, Georgina Emily Howard (now) G. E. H. Child. Frederic Dumaresq Ross died in 1868, leaving an only child, the infant petitioner, Margaret Mary Dumaresq Ross.

Thomas Ross died a bachelor in March, 1855.

William Francis died in April, 1855, leaving four children, viz. : William, Emma Margaret, Thomas, and Grace. William died in December, 1870, leaving two sons, the respondents, William Henry Ross and Francis Ross. Emma Margaret married James Selby, and they were respondents to this petition. Thomas Ross was also a respondent to it. Grace married Edward Selby, and died in 1870, leaving four infant children, viz. : the respondents Emma Selby, Alice Mary Selby, Francis James Selby, and Edmond Wallace Selby.

The testator's widow died in 1857.

Mary Ross died a spinster in October, 1859. Margaret Ross died a spinster on the 8th June, 1871.

The share of Margaret Ross in the testator's estate was now represented by the sum of £9000 15s. 11d., £3 per Cent. Con

No. 1. -- In re Ross's Trusts, 41 L. J. Ch. 131, 132.

solidated Bank Annuities, which in November, 1871, had been paid into court, to an account entitled “ In the matter of the trusts of the will of Alexander Ross deceased, the share bequeathed to Margaret Ross, with remainders over.”

The question was how that fund was to be divided between the claimants to it, all of whom were either grandchildren or greatgrandchildren of the testator ?

This petition was therefore presented by Margaret Mary Dumaresq Ross, the infant (by her mother as her next friend), the Rev. Thomas Fletcher and Mary Dumaresq, his wife, and Percy Wheeler Child and Georgina Emily Howard, his wife, praying (after providing for costs), that the residue of the sum of £9000 15s. 11d., £3 per Cent. Consolidated Bank Annuities, might be divided into moieties; that one-third of one of such moieties might be carried over to the account of the petitioner, Margaret Mary Dumaresq Ross, an infant under the age of twenty-one years; that another third of such moiety might be transferred to the petitioner, the Rev. Thomas Fletcher, in right of his wife; that the remaining third of such moiety might be transferred to the petitioner, Percy Wheeler Child, in right of his wife; and that the other of such moieties might be divided amongst or applied for the benefit of the several persons claiming under the testator's son, William Francis Ross; or else that the trust fund might be divided between the petitioners and the several other persons interested therein, in such shares and proportions, as they were respectively entitled to; or for such further or other order as should be deemed meet.

Mr. Greene and Mr. F. C. J. Millar, for the petitioners. – According to the true construction of the Statute of Distributions, 22 & 23 Car. II. c. 10. ss. 5 & 6, the fund must be divided into moieties, and each moiety be then again divided among the descendants of Alexander, the one son, and William Francis, the other son of the testator. But as those descendants consist of both grandchildren and great-grandchildren of the testator, they

must take as representing their respective parents, and not [* 132] in their own right as * his next-of-kin,

take per stirpes, and not per capita Davers v. Dewes, 3 P. Wms. 49 (note D); 2 Williams on Executors, edit. 1867, 1385, 1386; Lloyd v. Tench, 2 Ves. 213. But Toller on Executors, edit. 1833, 874, is contradicted by Burton's

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