
    Gilbert vs. S. D. and L. Moody.
    Where the goods of a tenant of. demised premises are sold by virtue of an execution, a reason able time to remove them is given to the purchaser; but there must be no unnecessary delay in the removal, or they will be subject to a distress for rent."
    Where there "is no dispute as to the facts, it is for the court, and not'tlie jury, to say what shall he deemed a reasonable time ¡ in this case it was held, that a delay in removing goods, purchased in the afternoon of Saturday, until the morning of the following Tuesday, without any cause assigned, was unnecessary and unreasonable, and that a landlord was justified in takihg them on a distress warrant in payment of refit; and it was further held, that the non-delivery by the sheriff of the bill of parcels was not a sufficient excuse "for the omission to remove the goods, especially as no objection to the removal was made by the sheriff.
    
      It seems that goods of a stranger on demised premises without his fault, though prima fade distrainable, may be reclaimed and relieved from a distress for rent; but there must not be any voluntary delay or intermission in their removal from the demised premises. Even a sheriff, it seems, would not be allowed to claim that goods, levied upon and left on the demised premises, were so far in custodia legis as to prevent a distress.
    This was an actioh of trespass de boni asportatis, tried at the' St. Lawrence circuit in February, 1834, before the Hon. Esek Cowen, then one of the circuit judges.
    The goods in question were purchased by the plaintiff at a sheriff’s sale of the property of one Wheelock, by virtue of an execution in his favor, in the afternoon of Saturdajq the 14th July, 1832; they.were in the dwelling house occupied by Wheelock, and remained there until Tuesday morning the 17th July, when they .were taken by the defendants under a distress warrant for rent. The plaintiff resided at Ogdensburgh, a distance of twenty miles from Canton, the place of sale under the execution; after the sale, being about to return home, he'asked the sheriff for a bill of the goods purchased by him; who told him he would make it out, but could not do so before midnight. The only issue presented by the pleadings was, whether a reasonable time had elapsed for the removal of the goods before the distress. The goods might have been conveniently removed on Saturday afternoon, and at a trilling expense. The judge ruled, that the goods could be distrained only on the ground that they had been suffered to remain on the demised premises an unnecessary and unreasonable time after the sheriff’s sale; that tile question of reasonable time was, in this case, a question of law for him, and not for the jury to determine; that in his opinion the plaintiff had suffered the goods to remain on the demised premises an unreasonable time after the sale, inconsequence of which they had become liable to the distress; that the omission of the sheriff to furnish a bill of the articles did not help the plaintiff, who, if lis could not obtain the bill, should notwithstanding have removed, the goods; and the jury, under the direction of the judge, found a verdict for the defendants. The plaintiff applied to the circuit judge for a new trial, which was refused by him, and upon which occasion he delivered the following opinion:
    “ Clearly, the moment these goods were struck off, they became Gilbert’s property, passed out of the custody of the law, and unless removed presently, they stand in the ordinary light of the goods of a stranger remaining on the demised premises, and liable to distress. This was agreed in Peacock v. Purvis (2 Brod. & Bing. 362). Dallas, Ch. J., said they remained in custodia legis till the sheriff can deliver them, so as to give effect to [356] the judgment. That might be and was done in this case. No point was made against it on the trial. The pleadings admit the sale, by taking issue on time. A bill was not necessary. Moveable goods were sold and paid for by the vendee. The whole having passed to him, he was the general property-man, and might maintain trespass or trover. If not, why does he now bring replevin? This presupposes the property in him, not in the sheriff; who, if still retaining the custody, should bring the action. If there be any custodia, it is of the plaintiff’s property, as in Peacock v. Purvis. The point made there was, that the goods were not removable being a growing crop; but these goods were immediately removable, though they were, I admit, necessarily and in despite of the plaintiff, upon the premises at the point of time when the sale took place, just as if his cattle had escaped and got upon the same premises. In the latter case, though the cattle would be prima facie distrainable, yet they might be reclaimed. How? By keeping his eye upon them and making fresh suit. ‘ But if he permit the beasts to remain there by any spice of time, though they had not been levant and couchant, the lessor might have distrained ’ (Reynolds v. Oakley, Brownl. 179; Hob. 265, S. C. partly stated). Was here fresh suit? On the contrary, the plaintiff permits the goods to remain, withdrawing all care about them, not leaving even an agent to take charge of their removal for some days. He goes home, and leaves them on the demised premises. In Reynolds v. Oakley, the plea was that the defendant distrained the plaintiff’s cattle; which had escaped from his close on to the demised premises, before he could drive them out; and the plea was held good, because there was no neglect I understand the amount of that case to be, that where a stranger’s goods are without his fault, on the demised premises, if he mean to protect them from distress, he must follow up the purpose of their removal, without voluntary intermission. In Eaton v. Southby (Willes, 131), the plea averred that the goods (being corn just cut) were not fit to be carried away in a course of husbandry, when they were distrained. That was the case of corn [357] sold in execution and afterwards distrained. The court there mention it as proper to inquire, not only how long the corn lay, but what weather it was (Willes, 134, 5); but I do not understand any of the cases as intimating that a party may indulge in voluntary delay, and then claim that he keeps himself in proper time. A sheriff himself, after levy and before sale, abandoning goods in this way, could hardly be allowed to claim that they were so far in custodia legis as to prevent a distress (Blades v. Arundale, 1 Maulé & Sel. 711).
    “ I confess, then, that I saw nothing in this case to leave to the jury on the issue of reasonable time. I agree that they must judge of this under some circumstances; such, for instance, as would make the question doubtful, as in the case put in Willes, of the time the corn had lain; or it may be a question of law, like Metcalf v. Hall and Appleton v. Sweetapple, cited Willes, 135, note a., or a mixed question, like Tindall v. Brown, (I T. R. 168), or Bell v. Wardell (Willes, 202); but where the facts are plainly proved, and there can be no dispute upon them, I am certainly not to tell the jury to try such facts. Here is plainly a voluntary permission that the goods should remain. Ought I gravely to put it to the jury, whether this plaintiff was hindered from taking away these goods, removing them a few rods, for some cause they might guess out, or for want of the sheriff’s bill ? Would the sheriff have objected ? Not that does not appear. Indeed, as the goods were properly pointed out and knocked off, no one can doubt that they might have been handed to a third person, and conveyed forthwith off the premises to some other place, as fast as they were sold. The want of a bill is, evidently, very much of an after thought. This case seems to me to come fully up to the Mohawk Bank v. Broderick (10 Wendell, 304), and cases there cited; where the circumstances being undisputed, they result in a mere question of law. Viewing the case as I did, 1 could only tell the jury, * Here is no semblance of excuse for such delay, and the right of distraining attached.’ There was no question of fact for them to try. New trial denied.”
    The plaintiff appealed from the decision of the circuit judge and applied to this court for a new trial. The cause was argued here by
    
      
      J. A. Spencer, for the plaintiff.
    
      A. Taber, for the defendants. '
   By the Court,

Nelson, Ch J.

The only question in this case is, whether the plaintiff permitted the goods purchased at the sheriff’s sale to remain an unnecessary or unreasonable time upon the premises of the defendant in the execution, so as to subject them to the payment of the rent for the satisfaction of which they were seized by virtue of the distress warrant. The goods consisted of household furniture, which could readily have been removed, and no reason or excuse for the delay was offered on the part of the plaintiff. It was not necessary that he should have delayed the removal until a formal bill of sale was delivered to him by the sheriff; and it does not appear that an objection was made to the removal on that ground. Goods levied upon by execution are considered in custodia legis until the proper time for the sale, and a reasonable time after the sale for the. purchaser to remove them (Peacock v. Purvis, 2 Brod. & Bing. 362; l Maule & Sel. 711; Bradby on Dist. 84). What is a reasonable time is a question of law, when there is no dispute about the facts. There is none here, and I can not say that the judge erred in the opinion expressed at the trial. It is apparent from the evidence that the removal of the goods could have been effected in a few hours; the whole of Monday was clearly a sufficient length of time for that purpose.

New trial denied.  