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.