Gilman v Elton
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1821 |
| Date | 13 November 1821 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 1211
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 6 Moore, 243.
oilman v. elton. Nov. 13, 1821. [S. C. 6 Moore, 243.] Goods of the principal in the hands of his factor cannot be distrained by the landlord of the factor's premises for arrears of rent due to him from the factor. Trover for bombazeens. At the trial, before Dallas C. J., (adjourned sittings after Trinity term last,) a verdict was found for the Plaintiff, damages [76] 1961., subject to the opinion of the Court, on the following case. The Plaintiff, who is a bombazeen manufacturer at Norwich, had been in the habit of sending parcels of goods for sale, upon commission, to Thomas Milne, (now deceased,) who was a factor and broker, and also traded on his own account. On the 16th February and 5th March, 1819, the goods in question were sent, packed in bales, and marked I. G. (the Plaintiff's initials) to Milne, to be by him, as factor of the Plaintiff, sold for the account of the Plaintiff, in the usual course of their business, and were received by Milne on the 10th March, at his ware-room and counting-house, which he rented of the Defendant, in Walbrook, London, as a yearly tenant. On the 6th March, 1819, the Plaintiff drew a bill of exchange of that date on Milne for 2001., on account, which bill Milne accepted, and returned to the Plaintiff, who afterwards cashed the same with his bankers at Norwich, and the bill, after the death of Milne, was duly presented by the said bankers' agents in London for payment, at the late ware-room and counting-house of Milne, and returned not paid. On the 16r,h April, 181.9, Milne died, the goods then remaining unsold in the ware-room. On the following day, the Defendant distrained them for 931., his arrears of rent due from Milne for tie ware-room and counting house. On the 24th of the same month, a formal demand of the goods was made on behalf of the Plaintiff upon the Defendant, who thereupon refused to deliver them, alleging, as a reason for his refusal, that he detained them under the said distress. The question for the opinion of the Court J8, whether, under the circumstances abova stated, the Plaintiff is entitled to recover. If the Court should lie o( that opinion, the verdict is to stand, but if of a contrary opinion, a verdict is to be entered for the Defendant. (773 Marshall Serjt., for the Plaintiff. This is a case of great importance, considering the extensive interests which will be affected by the decision ; but, as there is iio case in point, it must be determined on principle; and, on principle, the Plaintiff con fiends, that goods in the hands of a factor are not liable to distress for rent due from the factor. Generally speaking, the landlord is entitled to distrain for rent arrear, whatever chattels he finds on the land demised ; but there are exceptions to this rule; and the case of a factor falls within an exception which has been clearly laid down in favour of trade arid commerce. Thus, goods exposed to sale in a market are exempt from distress (a); a horse in a smith's shop; cloth at a tailor's, &e.(b); goods in the hands of a carrier, whether private or public; Gisbourn v. Hurst (Salk. 250}; and the same principle is deducible from Trassell v. Morris (Noy, 19), and Simpson v. Harlopp (Willes, 512, cited in Gorton v. Falkner, 4 T. R. 568). The exemption of goods in the hands of a factor is expressly stated in the argument, in Francis v. IPyatt (3 Burr. 1503), and not denied by Blackstone, the opposite counsel, nor by...
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