This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
- Chattels subject to distress. All chattels on the demised premises are, generally speaking, liable to be distrained upon, and the fact that they belong to a person other than a party to the lease is immaterial.71 In some states, however, by statute, a stranger's property is exempt from distress.72 Things which are part of the freehold, as fixtures, cannot be destrained upon.73
Things which are liable to be injured by keeping,7,4 and also, it seems, things not readily capable of
69. Co. Litt. 162a.
70. Prescott v. Boucher, 3 Barn. & Adol. 849; Jones v. Jones, 3 Barn. & Adol. 967.
71. Gilbert, Distresses, 33; Bradley, Distresses, 73; 3 Blacks. Comm. 8.
72. 2 Tiffany, Landlord & Ten. Sec. 328a(9).
73. Co. Litt. 47b; Gilbert, Distresses, 42; Turner v. Cameron, I-. R. 5, Q. B. 30; Kassing v. Keohane, 4 Dl. App. (4 Bradw.) 460; Reynolds v. Shuler, 5 Cow. (N. Y. 323. In Furbush v. Chappell, 105 Pa. St. 187, it is decioed thai fix tures removable by a tenant are distrainable, a view which accords with the rule existing in that state that removable fixtures arc personalty. Sec ante, Sec. 1272(d).
74. 2 Blackst. Comm. 101; Mor-ley v. Pinchcombe, 2 Exeh. 101.
Identification, such as loose pieces of money,75 are not subject to distress. Things in a person's actual use or possession, such as a horse which he is riding, or a machine at which he is working, are also exempt, in order that a breach of the peace may not be caused by an attempt to distrain thereon.76 Implements or utensils of one's trade or profession, such as the axe of a carpenter or the books of a scholar, are exempt, if there be other things on the premises sufficient in amount to satisfy the distress; and beasts used for working a farm, and sheep thereon, are in the same way conditionally exempt.77
Goods which are in the custody of the. law,78 as when they have been levied upon under execution,79 or attachment,80 are not distrainable. The rigor of this rule is, however, considerably alleviated, in England and in some states, by reason of statutes securing to the landlord, as against an execution levy, arrears of rent to the amount of one year's rent.81
The most important class of exemptions from distress consists of those in favor of trade or commerce, being generally of those things belonging to a third person which are temporarily on the leased premises
75. 1 Rolle's Abr. 667; Bac. Abr., Distress (B).
76. Co. Litt. 47a; Simpson v. Hartopp, Willes, 512; Beall v. Beck, 3 Cranch C. C. 666, Fed. Cas. No. 1,161; Couch v. Crawford, 10 Up. Can. C. P. 491.
77. Co. Litt. 47b; 3 Blackst. Comm. 9; Jenner v. Yolland, 6 Price, 3.
78. Co. Litt. 47b; Eaton v. Southby, Willes, 131; Bowser v. Scott, 8 Blackf. (Ind.) 86; Mul-herin v. Porter, 1 Ga. App. 153, 58 S. E. 60; Karns v. Mckjnney, 78 Pa. 387; Cooley v. Perry, 34 S. C. 554, 13 S. E. 853; Meyer v. Oliver, 61 Tex. 584.
79. Herron v. Gill, 112 111. 247; Craddoek v. Riddlesbarger, 32 Ky. (2 Dana) 205; Van Horn v. Goken, 41 N. J. L. 499; Sullivan v. Ellison, 20 S. C. 481.
80. Thomson v. Baltimore & Susquehenna Steam Co., 33 Md. 312; Pierce v. Scott, 4 Watts & S. (Pa.) 344; Ayres v. Depras, 2 Speers Law (S. Car.) 367; Meyer v. Oliver, 61 Tex. 584.
81. The English statute is that of 8 Anne c. 14, Sec. 1. The various decisions upon this and the more or less similar state statutes are discussed in 1 Tiffany, Landlord & Ten. Sec. 183.
For the purposes of the business there conducted, as in the case of raw material left there to be worked up,82 or goods placed there for purposes of sale83 or for safe keeping.84 For a similar reason, it seems, the property of a guest at an inn are exempt.85
- Things not on the premises. Apart from statute,86 only goods upon the demised premises can be distrained for the rent therof, or, as it is frequently expressed, the distress must be made upon the premises.87 In at least three states the law in this regard has been changed by statutes allowing the goods of the tenant to be distrained upon wherever located.88 There are also, in a number of states,89 as in Eng82. Co. Litt. 47a; Bead v. Bur-ley, Cro. Eliz. 596; Knowles v. Pierce, 5 Houst. (Del.) 178; Hos-kins v. Paul, 9 N. J. L. 110, 17 Am. Dee. 455.
83. Mecreery v. Claflin, 37 Md. 435, 11 Am. Eep. 542; Cc-nnah v. Hale, 23 Wend. (N. Y.) 462; Brown v. Stackhouse, 155 Pa. 582, 35 Am. St. Eep. 908, 26 Atl. 669; Walker v. Johnson, 4 Mccord (S. Car.) 552.
84. Miles v. Furber, L. E. 8, Q. B. 77; Beall v. Beck, 3 Craneh. C. C. 666, Fed. Cas. No. 1,161; Owen v. Boyle, 22 Me. 47; Brown v. Sims, 17 Serg. & B, (Pa.) 138.
85. 3 Blackst. Comm. 8; Bradley, Distresses, 144; Gorton v. Falk-ner, 4 Term Rep. 567; Lyons v. Elliott, 1 Q. B. Div. 210; Beall v. Beck, 3 Craneh C. C. 666, Fed. Cas. No. 1,161; Karns v. Mckin-ney, 74 Pa. 389; Kellogg Newspaper Co. v. Peterson, 162 111. 158, 53 Am. St. Rep. .300, 44 N. E. 411 ; Elford v. Clark, 3 Brev. (8. Car.) 88.
In one jurisdiction things be longing to a permanent boarder at, an inn or boarding house have been regarded as exempt. Riddle v. Welden, 5 Whart, (Pa.) 9. Contra, Trieber v. Knabe, 12 Md. 491, 71 Am. Dec. 607.
86. Except in the case of cattle driven off the premises in the sight of the landlord or his agent when about to distrain. Co. Litt. 161a; 2 Co. Inst. 132; Bradby, Distresses, 94. Or when there is an express stipulation allowing distress on things belonging to the lessee off the premises. In re Eoundwood Colliery Co. [1S97] 1 Ch. 373; Dinner v. Mcandrews, 10 Pa. Dist. E. 221.
87. Co. Litt. 161a; White v. Hoeninghaus, 74 Md. 127, 21 Atl. 700; Crocker v. Mann, 3 Mo. 472, 26 Am. Dec. 684; Weiss v. John, 37 N. J. L. 93; Pemberton v. Van Eensselaer, 1 Wend. (N. Y.) 307; Clifford v. Beems, 3 Watts. \Vn.) 246; Mosby v. Leeds, 3 Call (Va.) 139,
Land,90 statutes authorizing a distress on the tenant's goods and chattels if removed by him from the premises in order to prevent a distress thereon. And in several states the same end of realizing from chattels removed from the premises, or liable to be removed, is secured by statutory provisions for attachment for rent,91
88. 2 Tiffany, Landlord & Ten ant, Sec. 3281(4).
89. Id, Sec. 3281(3).