22 Me. 47 | Me. | 1842
The opinion of a majority of the Court, Whitman C. J. dissenting, and giving his reasons, was drawn up, and delivered, at the July Term in this county, 1843, by
— The building or apartment, where the salt was stored, was used and appropriated by the occupant, not for the deposit and safe keeping or selling of his own goods, but for the purpose of storing the goods of others, placed there in the regular course of commercial dealing and trade, to be again removed or re-shipped, and the building or apartment had acquired the character of a warehouse, and the salt was the property of the defendant, and had been there placed by him, in the regular course of trade, the duties being paid, to be stored and again removed or re-shipped, The questions now presented for consideration and decision are : • — •
First. Was the salt thus situated liable to be distrained or taken for the rent, due to the landlord from the tenant, of the premises, where it was deposited ? and if not: —
Second. Did the proceedings, being regular, in New Brunswick, have the effect to transfer the property in the salt to the plaintiff? And Third, Was the tenant of the premises a competent witness for the defendant ?
The salt was indisputably that of the defendant, when it was taken in distress; and if it was subject thereto, the title passed to the plaintiff. It is well settled in England, that whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to a tenant or a stranger, are dis-trainable by him for rent, But to this rule are exceptions, and certain articles are exempted from distress, not only belonging to strangers, but to the tenant himself. Animals ferae natura cannot be distrained. Whatever is in the personal use and occupation of any man is for the time privileged and protected from any distress. Valuable things in the way of trade shall not bo liable to distress. As a horse standing at a smith’s shop, to be shod, or in a common inn; or cloth at a tailor’s house; or corn sent to a mill or market. For all these are protected and privileged for the benefit of trade; and arc supposed in common presumption not to belong to the owner of the house, but to his customers. 3 Bl. Com. 8.
The case of Thompson v. Mashiter, 1 Bing. 283, was where the plaintiff consigned to one Cleasely as a factor or agent, whalebone for sale. The whalebone was landed at Ramsay’s wharf, a public waterside wharf, and was afterwards placed in Ramsay’s warehouse over the wharf for safe custody. The whalebone was afterwards taken from the management of Cleasely, and placed by the plaintiff under the management of Devereux & Lambert, for sale, as the brokers and factors of the plaintiff, and it was transferred from the name of Cleasely to
The same doctrine is fully recognized by the Court of King’s Bench, in the ease of Brown v. Shevill, 2 Adol. & Ellis, 138, and the authority of the cases before cited fully confirmed.
Matthias v. Mesnard, 2 Car. & Payne, 353, was where the plaintiff was a corn merchant, and the defendant landlord of the premises occupied by Ryland & Knight, lightermen and granary keepers to Ryland &. Son, who were the plaintiff’s factors. Ryland & Son having no warehouse of their own, deposited the corn sent them by the plaintiff for sale, in the warehouse of Ryland & Knight,- from whom rent was due to the defendant, and for it distress was made of the corn lying on the premises, and this action, brought for the corn, was sustained. Best C. J. is reported to have said, “ I am of opinion there is no substantial difference of a factor’s warehouse, and the warehouse of another, which the factor uses. And again, a landlord has by the general law, a right to take any property found upon the premises of his tenant. But many years ago in favor of trade, exceptions were made, as in the case of delivery of cloth to a tailor, and in many other cases. A landlord must know he cannot take the corn of other parties, and
Chancellor Kent, Vol. 3, 477, is equally clear, and adopts the doctrine deducible from the English cases. “ A horse at a public inn, or sent to a livery stable to be taken care of, or corn at a mill, or cloth at a tailor’s shop, or a grazier’s cattle put upon the land for a night or on the way to market, or goods deposited in a warehouse for sale or on storage in the way of trade, or goods of a principal in the hands of a factor, are not distrainable for rent.” Brown v. Sims, 17 S. & R. 138.
The doctrine of these cases is, that goods and chattels temporarily in the hands of others, for the purpose of being, “ carried, wrought or managed,” are privileged from distress for rent. This is a protection to the articles thus situated and not intended in the least as a special favor to those in whose charge they are left. An innkeeper, common carrier or tradesman are no more entitled to advantages, than those otherwise employed. But if property falling under their care, was not thus guarded by the laws, the business of certain mechanical trades would be entirely arrested, carriage of goods would be con,fined to their owners themselves, and vast commercial dealings would bo essentially impeded in their progress. The agencies, which commercial enterprise render necessary, would in a measure cease to exist, on account of the hazard which would attend their operations.
No precise rules are given, by which to determine in all cases the ' line,' which divides the property privileged, from that which is liable. But when we keep in view, the great object of the exception, can there be any doubt, what the general rule was intended to be ? And the difficulty of application will arise, from the want of a distinct character of a given
If the exceptions are to favor trade and commercial dealing in general, and not to protect any particular employment, will they not embrace the management of goods in their progress to a market ? If, when they are delivered to a common carrier to be carried, or to a mechanic to be wrought, they are free from distress, can it be said with any regard for the reason of exemptions, as stated by the English Judges from the time of Lord Holt to the present day, that goods deposited in a warehouse or on a wharf, for safe keeping, to be again removed in the regular course of trade, are liable to seizure for arrears of rent due from the tenant of the premises, where they are deposited ? What species of goods could be more a proper subject of protection in a country like England, whose pride, whose wealth, whose strength and whose fame have arisen and are continued by the liberality and far-sightedness of their mercantile regulations, than that which is brought into their ports, entered at their custom houses, the duties for the support of the government being paid, and deposited in a warehouse, like the one used by the defendant, for security, till a satisfactory sale can be made ? In the language of C. J.. Gibson, in the case of Brown v. Sims, “ where the course of business must necessarily put the tenant in the possession of the property of his customers, 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.”
The salt we think was exempted from distress, and the plaintiff was guilty of a legal wrong, in causing it to be taken. But it is insisted in the second place, by the plaintiff’s counsel, that the defendant having omitted to bring his action of replevin previous to the sale of the salt, he is now precluded by his own neglect to resort to that remedy; and that by the 4th section of the Provincial Act referred to in the report and by the laws of England, the defendant is divested of the property,
The defendant in this case, finding his property after the sale, in a warehouse, where he had originally stored it in the regular course of trade, instead of replevying it, took and removed it into the United States without any judicial process. This he was authorized to do, if he was at the time the lawful proprietor, and his defence in the present suit must be determined by the same principles, which would sustain an action of replevin in his favor, if he had resorted to that to recover possession of the goods in controversy. The maintenance of such an action must be upon the ground, that the salt was his, and there can be no doubt that one may retain possession of his own property, though that possession was acquired without process.
From the result to which we come on the first question, that the salt was privileged from distress, it follows that the plaintiff was guilty of a violation of law in causing it to bo taken. This is not denied by his counsel, but expressly admitted, provided the distress was unauthorized; and indeed the authorities adduced by them are all upon the truth of such a. proposition.
It is established doctrine in England, that replevin will lie generally for a wrongful taking, and when trespass could be maintained. And in fact, aside from the statutes in England and the Province of New Brunswick, authorizing the action of replevin by the tenant against the landlord for property taken in distress, it is not perceived that such action could be
In looking at the history of the law applicable to the subject of distresses for rent, we find, that this and other provisions were intended to favor the tenant, to preserve his rights and not to limit them ; and at the same time to indemnify the landlord ; and the act under which the plaintiff professes to derive his title, gives the tenant or owner of the property this remedy against the landlord, leaving the law in other respects unaffected thereby. “ The exorbitant authority and importance of the feudal aristocracy and the extreme dependence and even vassalage of the tenants, was the occasion of introducing the law of distresses ; for the non-payment of rent was a forfeiture of the feud, and the landlord could enter and assume it. The right of distress was given, that the landlord could seize a pledge in order to obtain justice, and he could take and detain cattle and other moveables found upon the land until the damages were paid. This was found to be as distressing to the tenant, as the feudal forfeiture, and was an engine of oppression. Then followed the statutory provision of 51 Henry III, that when beasts were taken in distress, the owner might feed them without disturbance, and that a sale should not take place, till the expiration of fifteen days. All these did not prevent the abuses practised by landlords, which Were found to be intolerable in their refusal to permit the king’s courts to take cognizance of the distresses, made at their own pleasure, and therefore, as Sir Edw. Coke observes, they assumed to be judges of their own causes, contrary to the solid maxim of the common law; and in the 52 Henry III, the statute of Marlebridge was passed, providing if the tenant was disposed to controvert the legality of the distress, either by denying the rent due, or averring it to be paid, the law provided him with a remedy by a writ of replevin.” 3 Kent’s Com. 2nd Ed. 473, 474, 475, and 476. And in 3 Bl. Com. 13, it is said, “ as a distress is at common law only in the nature of security for the rent or damages done, as replevin answers
Gilbert calls the writ of replevin at common law a judicial writ, intended as a speedy remedy ; and he says, “replevin lies for goods in which the plaintiff has a qualified as well as an absolute property : as if goods Were in my hands to be delivered to J. S. and J. N. takes them, I may have replevin to recover possession, because I have a right of possession against every body but J. S. and J. N. is therefore a trespasser.” Gilb. on Distress & Replevin, 3d Ed. 87; Com. Dig. Replevin, a. “ Replevin lies of all goods and chattels unlawfully taken.” 6 Com. Dig. 224, Replevin, a.
In 18 Viner’s Abr. 577, Replevin, B. F. 2, F. 3, it is said, “ If a trespasser take beasts, replevin lies for this taking at election,” and Bro. in replevin, pi. 37 — 39, cites 2 Edward IV, 16, “ for the owner may affirm property in himself by bringing replevin.” In Shannon v. Shannon, 1 Schoales & Lefroy, 327, Lord Redesdale says, “ that the writ of replevin is founded on an unlawful taking, and is calculated to supply the place of detinue or trover.”
In New York, the common law of England on the subject of distress for rent, has been adopted, and they have re-enacted, the substance of the English statutes of 52 Hen. Ill, 3 Edw. I; 13 Edw. I; 21 Hen. VIII; 17 Car. II; 2 W. & M; 8
In Thompson v. Button, 14 Johns. R. 84, it is clearly implied, that replevin will lie, where an action of trespass can be sustained. Clark v. Skinner, 20 Johns. R. 465, was where the plaintiff’s goods were taken on an execution against John Clark, his father, who had the possession for the purpose of enabling him to do certain business for the plaintiff, and it was insisted that the goods, being in the possession of the debtor in the execution, and in the custody of the law, could not be replevied. Platt J. said, “I am of opinion, that replevin lies, in favor of any person, whose goods are taken by a trespasser; in my judgment, the law does not deny the remedy by replevin to any person whose goods are taken from his actual or constructive possession by a wrongdoer. It is in many cases the only certain and efficacious remedy, and without it a man’s personal chattels would never be safe, unless he keeps them in his own absolute custody. If I leave my watch to be repaired or my horse to be shod, and if it be taken on a fi. fa. against the watch maker or blacksmith, shall I not have re
If goods be taken on a lawful precept, it is not in the power of him, against whom that precept is directed, to maintain replevin, excepting in cases of distress; but when a stranger to that precept, brings replevin, it is for the purpose not to examine the legality of the process on which the goods are taken, but to obtain redress for the trespass on his property. Mills v. Martin, 19 Johns. R. 31.
The act the plaintiff' relies upon, authorizes the appraisement and sale of “ any goods and chattels distrained for any rent reserved and due, upon any demise, lease or contract whatever, if the tenant or owner shall not within five days next after such distress taken, and notice thereof (with the cause of such taking) left at the dwelling-house or other most notorious place on the premises, charged with the rent distrained for, replevy the same,” &c. “ Any goods and chattels,” here referred to, must mean such as are subject to be taken in distress. It certainly could not be construed to extend to those, which had never been on the premises leased, or owned by the lessee; and where the real owner had no notice of the distress, till after the lapse of the five days or after the sale, and where he had no actual notice, and perhaps, from a distant residence, no means existed to convey any, is he precluded from the right to take his property, or from the ordinary remedy of replevin against the wrongdoer ? The property here, neither belonged to the tenant, nor was it liable to be taken for arrears for rent; it was
The action of replevin referred to, in this act, is one to be brought by the tenant or owner of the goods taken, where the goods themselves were liable. But if the goods were exempted, there was nothing on which the warrant could operate, and any proceedings under it could certainly confer no rights on the plaintiff, when every step was unauthorized and tortious. If goods' not belonging to the tenant were lawfully taken ■ in distress, the tenant is accountable to the owner. But if a stranger’s property which is not liable, is taken, and resort is made by the owner to the tenant, it is not believed that it can prove successful; and the stranger is deprived of the ordinary indemnity, if the doctrine contended for by the plaintiff be sound.
When goods not belonging to the debtor, or in any manner subject to attachment, have been taken on execution and sold, they have not been considered as passing the property to the purchaser and giving him title. In Skipp v. Harwood, cited by Lord Mansfield in Fox v. Hanbury, 2 Cowp. 445, he is reported to have said, “ If a creditor of one partner takes out execution against the partnership effects, he can only have the undivided share of his debtor, and must take it in the same
In Hayden v. Hayden, I Salk. 392, Caleman & Hayden were co-partners, and the judgment was against Caleman ; and all the goods both of Caleman & Hayden were taken in execution. And if was held by Holt C. J. and the Court, that the sheriff must seize all, because the moieties are undivided, for if he seize but a moiety and sell that the other will have a right to a moiety of that moiety.” Melville v. Brown, 15 Mass. R. 8. We have been directed to no authority where an innocent purchaser even of goods taken in execution has been allowed to hold them against the true owner by virtue of a sale thereon. Can it be contended that such owner would be divested of his rights, when there was nothing in reality or appearance, authorizing the seizure. If the officer has wrongfully held out title in the debtor and thereby induced persons to purchase, he is responsible for the injury to those whom he has misled ; and it cannot be contended with any appearance of reason, that the purchaser has acquired title by reposing unworthy confidence, and that the innocent owner is deprived of his property and driven to a suit to obtain the value of (hat, which he never consented to parí with. And can it with more reason be contended, that a sale of chattels, entirely privileged from distress, can pass into the hands of a purchaser, when the process is not one of judicial authority, but issued at the instance exclusively of a party interested ? Such a principle would strongly tend to invite persons, to resort to such means as would take from individuals in nowise guilty of wrong or neglect, the most valuable portions of their property, without the judgment of their peers and the law of the land, and where no opportunity could bo given to arrest it till recovery should be beyond their power; and for their indemnity be compelled to look to those who may be wholly irresponsible.
We have examined carefully the decisions, which give protection from distress to property in certain situations. This protection is, for reasons which apply wiill great force, to that which is embarked in commercial pursuits, and which the
But in the case at bar, the plaintiff cannot and does not complain, that he has, in ignorance of the facts, paid the value of the goods, for he is at the same time the landlord,- who caused the distress and the purchaser at the sale, and he is now seeking the fruits of each. He knew the law, and is presumed to have known, that the taking of the salt was in violation of its provisions. He does not even contend, that his claim is based upon any legal commencement, but insists that a series of unauthorized acts, because they have resulted in a> purchase by him, have ripened into a perfect and indisputable-title ; he does not deny his liability in another form of action for having taken this very property, but insists that he must retain it to remunerate him for the expense, which he has caused, equally without legal right. The defendant deposited his property, where well he might. It was then guarded by the law, and privileged from distress. He went after several months, found it, as he had left it in the way of trade, entered it at the custom house in the United States, and paid the duties, thereby materially enhancing its value. The plaintiff had not previously sought the advantage of his purchase, but then followed and took it in replevin, admitting, if he can obtain it, thus increased in value, he must submit to compensate the owner, for the price which it bore, when he attempted wrongfully to deprive him of it. Such propositions cannot be tolerated unless by unquestionable authority. They present a case too absurd to be regarded with favor, till it is shown that the law of New Brunswick, which we are bound not only to respect, but which in this instance requires implicit obedience,
From the view, which we have taken on the two first questions presented, we can have no doubt, that McLane was legally admissible as a witness. Even if in the event of a failure in the defence, he should be responsible for the value of the salt to the defendant, his rent would be paid, and the interest would be balanced. But it is questionable whether he would be liable to the defendant in any event, and it would then be clearly for his interest that this cause should be so settled, that the rent should not b.e a charge upon him.
Judgment on the verdict.
— This is an action of replevin for a quantity of salt. The defendant was the original owner of it, and had stored it for safe keeping, in a store belonging to the plaintiff but, at that time, in the occupation of his lessee; and situated on the island of Campo Bello, in the Province of New Brunswick, on a wharf there, belonging to the plaintiff. While the salt was so stored, rent becoming due from the lessee, the plaintiff, on the 31st of September, 1835, finding the salt so in the store, distrained it for rent in arrear ; and it was duly proceeded with, and sold for the payment of the rent; and the plaintiff became the purchaser of it. These proceedings were in the province of New Brunswick, where the plaintiff lived. In 1836 the defendant, without permission from, or knowledge of the plaintiff, obtained possession of the salt, and conveyed it into the State of Maine, where this uction was brought to recover it, and in which a verdict has been returned for the defendant. The plaintiff moved for a new trial, and the Court reported so much of the evidence and of its ruling and instructions, as were necessary to present the grounds of the motion: one of which was, that the Court erroneously admitted the lessee p,s a witness for the defendant,
It may be proper, that we should first consider the instruction to the jury. If that should turn out not to be sustainable, it will be unnecessary to examine the other question raised. It appears, that the laws of England and of New Brunswick are the same, as to the rights of landlord and tenant, in reference to the circumstances authorizing distraint to be made. The genera] principle in England is laid down to be, that whatever chattels are found by the landlord on the premises leased, whether belonging to the tenant, or a stranger, may be distrained for rent in arrear. 3 Blackstone’s Com. 8. And numerous other cases might be cited to the same effect. To this general principle, however, exceptions have from time to time, been recognized. And the question is, was that stated by the Court on the trial, one of them ?
In the time of Lord Holt it was adjudged “ that goods delivered to any person, exercising a public trade or employment to be carried, wrought or managed, in the way of his trade or employment,” were for the time, privileged from distraint. Gisbourn v. Hunt, 1 Salk. 249. This authority seems to be the basis upon which all the after decisions have been placed. Comyn in his treatise upon landlord and tenant, p. 385, adopts the same general principle. He says, that “ when property
The first case in which it was expressly decided, that, goods in the hands of a factor, were within the exception, was that of Gilman v. Elton, 3 Brod. & Bingham, 355. Dallas C. J. remarks, that the goods distrained in this case, it clearly appears, were received by the factor, in that particular character, and that it would be detrimental to the public, and inconsistent with the cases, if he were to hold them liable to seizure, in the manner contended for. Park J. after noticing the principle laid down by Lord Holt, asks, if goods so situated were not so placed to be managed. Burrough J. remarked, that no one could read the case, Francis v. Wyatt, 3 Burrow, 1498, (in which a carriage put up at a common livery stable, had been seized for rent, and was not supposed to come within the exception,) without seeing that the case of factors falls within the exception. Richardson J. remarked, that the advancement of trade equally, requires that goods should be placed in the hands of a factor for sale, as that they should be placed in the hands of a carrier for carriage. And that goods put into the hands of a trader to be wrought, or manufactured, or managed, are always protected from distraint.
In the next case which came before the same Court, 1 Bingham, 282, Thompson v. Mashiter, the reporter’s abstract is, that “ goods landed at a wharf and deposited by a factor, to whom they were consigned, in a warehouse on the wharf, till an opportunity for sale should present itself, are not distrainable for rent due in respect of the wharf and warehouse.” Dallas C. J. in that case says, that “ it has not been argued, that
The next case, in the order of time, on the subject of this exception, came before the Court at the nisi prius, Matthias v. Mesnard, 2 Car. & P. 366. The reporter’s abstract is, that “ corn sent to a factor for sale, and deposited' by him in the warehouse of a granary-keeper, he not having any warehouse of his own, is under the same protection ■ against a distress for rent as if it were deposited in a warehouse belonging to the factor himself.” The counsel for the lessor in this case took the exception, that “ the decisions had never extended farther than to the protection of goods in the store, occupied by the factor himself.” . Best C. J. said, “ if the cases referred to had decided only the insulated points, as to a wharfinger’s and factor’s protection, he should .have -paused; but, that the Judges in those cases only decided the general principle, &c. But that many years ago exceptions in favor of trade were .admitted, that a landlord must know, (meaning doubtless in the, situation this was,) that he cannot take the corn of other par-, ties; and, therefore, if his tenants are granaryTkeepers, he can fake other security for his rent. What wharfinger, or what
These are all the adjudications in England, that have come under my observation, directly bearing upon the case at bar; which seems to be a case of simple storage, by the owner himself, until an opportunity should offer to re-ship the goods. Now, can the defendant’s goods be brought within the exceptions of the right of the landlord to distrain, “ any goods found on the premises, whether belonging to the lessee or to a stranger ?” If an exemption can be claimed in this case, in what case could a landlord distrain the goods of a stranger in a store or a warehouse of his lessee ? The Court, however, in charging the jury in this case took a distinction between a public warehouse, kept publicly for storing goods, and one kept for the private use of an individual. But it may be doubted if any such distinction will hold. There is no adjudged case, that distinctly sanctions it. It is true that in a late edition of Bradby’s Treatise on Distresses, by Adams, chap. XI, the editor has introduced into the text, the following passage, “ so also goods landed at a wharf, and deposited in a warehouse there, cannot be distrained for the rent of the warehouse, and it is immaterial whether they are deposited by the principal or his factor.” And cites the before mentioned cases of Francis v. Wyatt, and Thompson v. Mashiter. But these cases do not.authorize any such interpolation. Dallas C. J. in the latter case, speaks of goods sent to a wharfinger, with reference to the case then before him, which was a case of goods sent to a factor for sale, and was no doubt, of opinion that goods so sent to a wharfinger or landed on a wharf would have been protected. And from the language he uses it may be inferred that he considered goods imported, and landed on a wharf would be protected there from distraint. But there is not a scintilla in either of the cases, that would tend to show, if the owner imports goods, and stores them in a warehouse on the wharf, whether owned by himself or others, or elsewhere, for safe custody merely, and until they can bo conveniently re-shipped, that they would be exempted from