the manner of entry applies not merely to dwelling-houses but Outbuildings. to any other buildings or enclosures (a) directly in communication Forcible re-entry. Not after abandonment. What may be taken. therewith. In Eldridge v. Stacey (b) the broker climbed a wall The latter If a peaceable entry is once made the person distraining may subsequently re-enter, if necessary by force, for the purpose of carrying out the distress, unless in the meantime it has been abandoned (e). It is not necessarily an abandonment if the goods are left impounded on the premises with no one in charge (ƒ). A fortiori if the man in possession is expelled by force or fraud he may subsequently re-enter with the strong hand; but this right must be exercised in a reasonable manner, for long delay will be evidence of abandonment. In Eldridge v. Stacey (g) it was held a question for the jury whether a delay of three weeks after an expulsion amounted to an abandonment. 6. As a general rule all property found on the premises subject to the distress is liable to be taken without reference to the rights of third parties (h), though it has been held that a purely personal licence to use a patented article distrained upon is not communicable to a third party, being a right of an incorporeal nature (i). (a) Brown v. Glenn, (1851) 16 Q. B. (b) (1863) 15 C. B. N. S. 458. (d) (1894) 1 Q. B. 119. (e) Eagleton v. Gutteridge, (1843) 11 M. & W. 465. It is not an entry if a man just gets part of his body inside (Boyd v. Profaze, (1867) 16 L. T. N. S. 431). (f) Jones v. Biernstein, (1900) 1 Q. B. 100; Swann v. Earl of Falmouth, (1828) 8 B. & C.456; Bannister v. Hyde, (1860) 2 E. & E. 627. (g) (1853) 15 C. B. N. S. 458. (h) It was at one time supposed that there was a less extensive right of distress in case of a rent-charge (Com. Dig. Distress, B. 2). But this is not so (Saffery v. Elgood), (1834) 1 A. & E. 191; and Johnson v. Faulkner, (1842) 2 Q. B. 925). Certain statutes, however, as will be pointed out, give special rights to landlords only. (i) British Mutoscope Co. v. Homer (1901) 1 Ch. 671. Beside this unusual incident, there are, however, several exceptions to the general rule stated above. (a.) In the first place there is no right of distress against the Exceptions. property of the Crown or ambassadors of foreign powers (a). Crown and foreign envoys. Things delivered in the way of trade. trade. (b.) Secondly, for the benefit of commerce 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, are privileged (b). There must have been a delivery of the things, a transfer of possession to the person on whose premises they are seized. Where a shipbuilder was constructing a vessel under a contract by which the property in the hull vested in his employer before delivery, and it was distrained upon in his yard, it was held that there was no privilege (c). The person t whom the Public delivery is made must exercise a public trade, not in the sense that he is bound to deal with all the world, but in the sense that he keeps open shop or holds himself out as ready to do business with the public generally. It was held, indeed, in Rede v. Burley (d) that goods taken to a weighing machine which a man kept for his own private use were privileged; this case, however, seems inconsistent with all the other authorities (d). But if the business is public in its character the extent to which it is carried is immaterial (e). As a general rule the goods must not only be in the possession of some public trader, but at some place where he carries on business. Goods in the hands of an auctioneer conducting a sale at a private house are not privileged (ƒ). To this there is an exception in favour of carriers; for goods in their different if he made a business of agist- (e) Gibson v. Ireson, (1842) 3 Q. B. 210. For purpose of trade. Things accessory to privileged goods. hands for the purpose of transit cannot be seized on premises where they may be temporarily deposited (a). The goods must be delivered for the purpose of being carried, wrought, worked up, or managed. Under the word management is included the custody of innkeepers, pawnbrokers, and warehousemen (b). It was held, indeed, in Parsons v. Gingell (c), that horses at livery are liable to distress, but this case has been disapproved of (d). The object of the delivery must be that the person to whom they are delivered should exercise his trade upon them. In Wood v. Clarke (e), yarn was delivered to a weaver, and a loom was lent him to do his work. It was held that the yarn was privileged, but not the loom. In Muspratt v. Gregory (f), a barge was sent to a manufacturer's premises by a purchaser to be loaded with his goods: it was held not privileged. In Joule v. Jackson (g), the plaintiff had supplied beer to an innkeeper in barrels belonging to the plaintiff, which were distrained at the inn. The distress was held lawful. In all these cases the goods were delivered not to be dealt with in the way of trade, but in order to facilitate the operations of the trade. But, on the other hand, it has been held that a sewing machine in the possession of a tenant, under a hire-purchase agreement, and used by his wife for the support of the family, is privileged from distress by 51 & 52 Vict. c. 21, s. 4 (h). It was said in Rede v. Burley (i) that the horse or vehicle which either takes or is sent for privileged goods is itself privileged. But this is now overruled (k). It may be, however, that anything which is purely accessory to the privileged goods at the time of seizure is itself privileged. Thus the case or vehicle or vessel in which the goods are may be protected (1). If a saddled horse is taken to a farrier to be shod, the saddle cannot be seized while it is on the horse; but if it be taken off him, it may then (a) Gisbourn v. Hurst, supra, p. 295. (b) Crosier V. Tomkinson, supra; Swire v. Leach, supra; Miles Furber, supra, p. 295. (c) (1847) 4 C. B. 545. V. (d) See per Cockburn, C.J., Miles v. M. & W. 677. (g) (1841) 7 M. & W. 450. (h) Masters v. Fraser, (1902) 85 L. T. 611; 66 J. P. 100. () (1597) Cro. Eliz. 596. (k) Muspratt v. Gregory, (1836-8) supra. (1) Per Alderson, B., Muspratt v. Gregory, (1836) 1 M & W. p. 647. be distrainable (a). A distrainor had no right at common law to sever one thing from another, because he could not return them in the same condition; therefore if he found a horse harnessed to a cart, he could not take one without the other (b). (c.) In addition to things within the rule in Simpson v. Hartopp (c), there is a special privilege attaching to goods in a public fair or market, or on their way thither, for the purposes of sale. If a man driving his beast to market agists them for the night before the market in a field, the landlord cannot distrain. The occupier of the field clearly does not come within the definition of a person to whom goods are delivered in the way of his trade, but the privilege is the privilege of the market (d). Goods on way to fair or market. and materials. (d.) Besides the common law exemptions, by 6 & 7 Vict. c. 40, Textile s. 18, any apparatus or materials in certain textile manufactures machinery entrusted to workmen shall not be distrained except for rent due by the owner. stock. (e.) By 35 & 36 Vict. c. 50, ss. 3, 5, railway rolling stock, if Rolling sufficiently marked with the owner's name, is protected from distress on works connected with the railway by sidings, except to the extent of any interest which the tenant of the works may have in such stock. (f.) By 46 & 47 Vict. c. 61, s. 45, on agricultural holdings as Agricultural defined by the Act, hired machinery, and stock sent solely for and breeding machinery breeding purposes, are absolutely protected. Agisted (e) cattle stock. may not be taken except no other sufficient distress can be found, Agisted and then only to the extent of the tenant's interest. cattle. (g.) Another case in which protection is given to the goods of Lodgers' strangers is by the Lodgers' Goods Protection Act (34 & 35 Vict. goods. c. 79). If the goods of a lodger are taken under a distress levied on his immediate landlord by the superior landlord, he may serve on the distrainor an inventory and declaration in the form. prescribed (ƒ) and pay him any rent due from him to the extent (a) Per Brian, C.J., 22 Edw. IV. 50, pl. 15. (b) Per Brian, C.J., 20 Edw. IV. 3, pl. 16, and see Vin. Abr. tit. Distress. (c) (1743) Willes, 512. (d) Nugent v. Kerwin, (1838) 1 Jebb & Symes, 97. Per Alderson, B., Muspratt v. Gregory, (1836) 1 M. & W. p. 647; Co. Litt. p. 47a. But see Bac. (e) See London & Yorkshire Bank v. (f) As to sufficiency of this, see Er parte Harris, (1885) 16 Q. B. D. 130; Thwaites v. Wilding, (1883) 11 Q. B. D. 421; 12 Q. B. D. 4. As to who is a Goods in custody of law. Things in use. of the distrainor's claim. If the distress is after this proceeded with, an action for illegal distress lies (a), not only against the landlord but also against the bailiff (b). It is to be observed that this Act gives no protection except in case of a distress for rent on a demise. (h.) Under this head also, of protection to the rights of third parties, may be considered the privilege of things in the custody of the law (c). Goods are in the custody of the law when an officer of the law is in lawful possession of them under a legal process, or when they have been lawfully distrained upon and not abandoned; and, as will be seen hereafter, in case of distress the goods, after impounding, are in the custody of the law, even though it may turn out that the distress was altogether illegal (d). It has, however, been held by the Court of Appeal in Ireland that a landlord's claim for twelve months' rent, actually in arrear, takes priority, after notice, to a seizure in execution by a special bailiff (e). Where growing crops are sold in an execution they are, in the hands of the vendee, privileged from distress until they can be harvested (f). However, by 14 & 15 Vict. c. 25, s. 2, in such a case the landlord may seize for subsequently accruing rent, provided he can find no other sufficient distress (g). There are several cases in which goods are protected from distress even though they are the property of the distrainee. (a.) Things in actual use are privileged from distress on the grounds of the general danger to the peace which would ensue from attempts to seize them. Therefore a tool or machine which a man is working with, or a horse which he is leading, riding, or driving, cannot be distrained (h). If, however, they were not in actual use, the privilege at common law was conditional upon there being other goods of sufficient value upon the premises (i). lodger, see Phillips v. Henson, (1877) 3 (a) Godlonton v. Fulham & Hamp (c) Co. Litt. p. 47a. (e) Wren v. Stokes, (1902) 1 Ir. R. 167. (f) Wharton v. Naylor, (1848) 12 Q. B. 673. () As to the landlord's right in case of an execution, see Ch. XXII. (4) Co. Litt. p. 47a; Storey v. Robinson, (1795) 6 T. R. 138; Simpson v. Hartopp, (1743) Willes, 512. () Nargatt v. Nias, (1859) 28 L. J. Q. B. 143. |