McCreery v. Clafflin

Stewart, J.,

delivered the opinion of the Court.

The only question here, is, as to the extent of the landlord’s right to distrain upon the goods found upon the demised premises. Whether' in fact the merchandise sent to Goodwin, Oliver & Go., as factors, for sale, on account of the owners, the appellees, is exempt by law from the distress for rent due by the tenants, the factors, when they also sold goods at the same place, on their own account, and had no public sign that they were factors, and the landlord was a non-resident?

It was urged by the counsel for the appellees, that goods found upon the premises under such circumstances, were excepted; and that the summary process for the recovery of rent, w.as a vestige of the Feudal system, and that the Court should adopt the most liberal construction to release property from its grasp.

Chief Justice Gibson, in Brown vs. Simms, 17 S. & R., 139, speaks of it as a feudal prerogative handed down from a period when chattels were of little account, and that the most plausible argument in support of it, is, that as the landlord is supposed to have given credit to a visible stock on the premises, he ought to be allowed recourse to every thing he finds there. Chancellor Kent on the other hand, 3 Kent’s Com., 625, thinks it a necessary and useful provision, dictated by sound policy, and that the prosperity and growth of our cities, would be seriously checked if the law did not afford landlords a speedy and effectual security for their rents.

Chief Justice Denman, in the case of Muspratt vs. Gregory, 3 Meeson & Welsby, 678, remarks, in regard to the argument, urging the policy of a relaxation of the rule for the promotion of trade, that all laws profess to he founded on the principle that they are for the public good, but what is or not for the public good, is a matter of speculation, upon which the wisest men may differ, and as to which the Judges are not at liberty to promul *441 gate new rules of law. Such was the view of C. J. Lb Grand, in Trieber vs. Knabe & Betts. 12 Md., 491 , referring the correction of any abuse to the legislative department, as the proper authority for that purpose. We find no reason to dissent from this view, and such has been the legislative interpretation, and laws have been enacted by the State modifying in some respect the rigor of the common law; and we must leave to that branch of the government to determine what public policy may dictate. Under the exceptions in favor of trade, reference of course must be had to the description of articles pertaining to that subject. Whilst the general rule holds all chattels found upon the demised premises, prima facie liable for the rent, it is subject to the exceptions recognized on grounds of public/policy, for the benefit of trade, or the preservation of the peace, of certain classes of articles ; and embrace all property of like character or ejusdem generis.

Whilst there have been differing adjudications as to what are the exceptions, and as to the extent of the exemption under the privilege of trade, so far as our researches have extended, all the adjudged cases concur that goods delivered to tradesmen, artificers, carriers, factors, wharfingers, auctioneers, and the like, without qual-

ification are exempted. See Muspratt vs. Gregory, 3 Mees. & Welsby, 678; Gilman vs. Elton, 3 Brod. & Bingham, 75 ; Findon vs. McLaren, 6 Adol. & Ellis, (51 E. C. L.,) 890; Matthias vs. Mesnard, 2 Car. & Payne, 353; Walker vs. Johnson, 4 McCord, 552; Brown vs. Sims, 17 Serg. & Rawle, 138 ; Connah vs. Hale, 23 Wendell, 462 , In 3 Kent’s Com., on the subject of the remedy for the collection of rent, beginning at page 607 ; also in Smith’s Leading Cases, 661, and in 6 Robinson’s Prac., 526, the

various authorities both in England and this country are referred to, and it would be an unprofitable consumption of time to undertake to review them here.

*442 In Trieber vs. Knabe & Betts, 12 Md., 491 , they were examined, and the judgment in Simpson vs. Hartopp, Willes, R., 512, was recognized as a clear statement of the law upon the subject.

Five general exceptions to the rule are stated — some of them'; absolutely- — -others sub-modo — amongst those excepted, without qualification, are “ 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 as the exceptions, are merely given, by way of example, any goods excepted, must be shewn,-to be ejusdem generis — and in determining'which are of that character, some diversity of opinion has been expressed. The counsel for the appellant, conceded the law, to be as stated, generally, but contended, for the distinction, sought to he made in his prayer; that as the tenants in this case, besides receiving goods for sale, as factors or commission merchants, (if there be any legal distinction between them,) also sold goods on their own individual account; that such fact made a difference — that to enable them to have the protection afforded, under the exception, in favor of trade, their vocation ought to be exclusive and notorious, by having their sign at their place of business to that effect — and further, that' as the landlord was a non-resident, and ignorant of the vocation of his tenants as factors, the goods and merchandise upon the premises were not entitled to be exempted. We find no authority to sustain such a proposition.

The goods not belonging to the tenant, are exempt from distress for rent, whilst they are in the hands of the commission merchant or factor, not so much on account of a special privilege to the tenant, but for the benefit of trade and commerce, and for the purpose of protecting the owner of the goods, who has confided them to the tenant for sale.

It is not material whether the landlord is aware of the true owner of the goods or not. Such we take to be *443 the reason of the decision in the case of Gisbourn vs. Hurst, 1 Salkeld, 249, where the party was not a common carrier, but occasionally brought from the country cheese to London, and on his return carried back in his wagon, such goods as he could get, for a reasonable price, and it was determined by the Court, that he was, as to this privilege a common carrier, and the goods in his custody were protected from distress for rent; not from special regard to him, but in respect of the trader; and such we apprehend to he the doctrine of all the cases.

(Decided 20th February, 1873.)

We find no error in the rulings of the Superior Court.

Judgment affirmed.