McCombs & Howden's Appeal

The opinion of the court was delivered by

Lowrie, C. J.

It is not at all surprising that the counsel and the court below have been embarrassed by the question raised here; for it is certainly not easy to reconcile the reasoning in several decisions of this court bearing upon it: 2 Harris 400 ; 11 Casey 162-369. The first of these seems to support the view of the auditor, and the others that of the court, which is the right view.

It would seem that the first of these cases might have been decided on the ground that a lessee who assigns his whole term reserving a rent, has no reversion, and therefore no right of distress, and therefore could not claim rent against the ■ execution. But it is not on this, but on another reason, that decision is based, to wit: that the landlord can claim against or under the execution only when it is against his immediate tenant, and not when it is against an assignee or sub-tenant of his lessee. And two English cases are cited in favour of this doctrine, one of which, 2 Stra. 787, does perhaps favour it, and the other, 7 Bing. 428, does not.

But there is a slight difference between the British statute (8 Anne, c. 14) and ours in this, that the former provides for rent due “ to the landlord of the premises,” and might therefore be supposed to mean only the immediate landlord; whereas ours provides generally and simply for rent “due.” But there is a still more important difference in this, that to the description in the British statute of goods on the demised premises, ours adds, “and liable to the distress of the landlord,” and this gives us, as our brother Woodward has said, 11 Casey 166, a definition of the cases wherein rent may be demanded of the sheriff.

, And we think that this clause was added in our statute for the purpose of improving the original definition, and not in order to save goods that were exempted by law from an actual distress, from being subjected to this virtual one; for we know of no goods that ever were subject to execution that were exempt from distress. But there may be goods on the premises, such as those of a guest at a hotel, and the cattle of a stranger on land leased for a pasture, taken in execution for the debts of their owners, which are not liable to distress for being on the premises, and then of course their proceeds in the sheriff’s hands are not subject to the landlord’s claim for rent.

Moreover, this clause, liable to distress, is necessarily implied, if not expressed, in order to save the goods of a subsequent tenant from the rent of a previous one under an expired lease, and to exclude those rents which are secured by no right of distress, and have therefore no claim against the goods. No doubt under-tenants may sometimes suffer loss by the operation of the rule, if they do not see that the principal rent is duly paid; because the rule and the law of distress make all goods on the premises surety for the rent for the enjoyment of them. An under-tenant can usually save himself by seeing that his own rent is duly paid over to the principal landlord. The goods of the sub-tenant in this case were clearly liable to the distress of the landlord, and therefore their proceeds in the sheriff’s hands were liable to this claim. The law means not to injure one in vindicating another, and therefore for the possible or quasi lien of the landlord on the goods taken in execution it substitutes a lien on their proceeds.

Appeal dismissed at the costs of the appellant.