Butler v. Morgan

The opinion of the court was delivered by Kennedy, J.

The only question presented for consideration in this case is whether a landlord could, during the operation of the late Bankrupt Act of Congress, distrain on the goods of his tenant found on the leased premises, for rent due and in arrear, after the latter had petitioned for the benefit of the Bankrupt Act, and before he had been declared a bankrupt. Now, it is a general rule of the common law that all goods found upon the premises demised to a tenant are held liable to be distrained by his landlord for rent, whether such goods belong to the tenant or to other persons. Com. Dig. tit. Distress, b. 1; Bradley on Distr. 106. And if the Bankrupt Act made no change in the law in this respe.ct, it is clear that the landlord, in this case, had a right to distrain as he did. But the Bankrupt Act is silent on the subject of rent being due and in arrear by the bankrupt, and does not contain a single word in relation thereto; so that the landlord’s remedy by distress for rent due to him remains as it was at the common law, whereby he is entitled in general to distrain upon all goods found upon the premises demised, whether they belong to the bankrupt tenant or not. And he may distrain for the whole rent due, whatever its amount may be, even after the tenant has been declared a bankrupt, or after an assignment made of the goods, though in the possession of the assignees, if they still continue on the demised premises; for the assignment only changes the property in the goods, which does not in the least exempt them from distress for the rent due as long as they remain on the leased premises; and unless removed, they may be distrained even after a sale made of them by the assignees. Cullen B. L. 123-4; Cooke’s D. 213-21; Bradley on Distr. 121-2; 1 Atk. 103. The issuing of the commission and the messenger’s taking possession of the goods, according to the course pursued in England, has never been considered such a custodia legis as to preclude a distress of the goods by the landlord for rent due. In regard to his remedy by distress, he is considered as standing upon higher ground, and entitled to more favour in law, than a common creditor. Woodfall’s Landl. and Ten. 365; 1 Atk. 105. And hence the right of distress is given to him over and above the other remedies which he has in common with ordinary creditors, and is rather regarded as a remedy upon the land than on the *55 person of the teiaant; and the right thereto was ever held unaffected by all the original bankrupt laws passed in England. Buckley v. Taylor, (2 T. R. 600); Bradley on Distr. 122. But if the landlord distrain and the tenant replevy the goods, and they are sold afterwards by the assignees, the landlord cannot, upon his recovery of a judgment for a return, retake the goods in the hands of the vendee, for he has no lien on them, and his only remedy, therefore, is on the replevin bond. Cooke 218 -20; Bradley on Distr. 122-3. It has, however, been argued that the rent for which the distress was made in this case became extinct, if not satisfied, by the operation of the Bankrupt Act, and therefore the right to distrain could not exist. But this argument does not appear to be sustained by either the terms of the Act, or any meaning that can be fairly drawn from it. The debts of a bankrupt, though he obtain his discharge under the bankrupt laws of England, have never been regarded as thereby absolutely paid or extinguished; or otherwise it would seem to be difficult, if not impossible, to hold, as has ever been the case, that a subsequent promise made by the bankrupt to pay them, would be valid and binding. Cowp. 290.

Judgment affirmed.