
    [Philadelphia,
    January 17, 1828.]
    BROWN and others against SIMS and another.
    The goods of a third person placed in the way of trade on storage in the ware- . house of one who used the tradq and business of a merchant, and received 1 goqds and merchandize from merchants and traders on storagé, are not liable1 to distress for rent for such ware-house, though found on the premises.
    Replevin by Josiah Brown and others, against Joseph Sims and John M‘Masters, for twenty-six hogsheads of tobacco. The defendant iSims, avowed, and the defendant M( Masters, made cognisance of the taking, as a distress for rent of certain warehouses and stores in the city of Philadelphia, due by one Joseph Lea, the same being found on the.premises.
    The plaintiffs pleaded no rent in arrear; and for further plea, that they, the said plaintiffs were then,- to wit, at Philadelphia, in the county, aforesaid, commission merchants and factors, and carried on the business of commission merchants and factors, and bought and sold goods, wares, and merchandizes, as commission merchants and factors for others, upon commission, and that they? did then and there receive the said twenty-six hogheads of tobacco from certain persons residing abroad; to wit:-of —-- to sell the same as .the factors or commission merchants of the said —--for and upon commission, and that the said Joseph Lea was the tenant and occupier of’ the said stores and- warehouses, in which, and under a demise .from the said Joseph Sims, for a term of years, at the annual rent of fifteen hundred dollars. That the said Joseph Lea, during such his occupation of the premises, used and followed the trade and business of a mérehant, and received goods, wares and merchandizes, from merchants and traders on storage, in the way of his said trade, and therefore used the said premises in the way of his said trade and business, to store goods, wares and merchandizes, so placed upon the premises; and that the plaintiffs put and placed the said-goods, to wit, the twenty-six hogsheads of tobacco, so sent to and received by them to sell upon commission as aforesaid, in the said stores and warehouses, on storage, with the said Joseph Lea, the way of trade and business, and the said Joseph Sims and John M‘Masters took their said goods, to wit, the said twenty-six hogsheads of tobacco, as a distress due to him the said Joseph Sims, from the said Joseph Lea, at the same time when, &c. bf their own wrong, in the said place in which; &c., and unjustly detained the same, &c.
    To this special plea the defendant demurred, and the plaintiffs joined in the demurrer.
    
      Binney, in support of the demurrer.
    If taking goods on storage be sufficient to exempt, no landlord of stores in Philadelphia has the security of distress. The plea does not state that the goods were put into the possession bf the tenant, to have any thing done with them in the way of his business as a factor. It is the common case of-goods in stores: goods consigned to him, and placed in the store at storage.
    The general rule is, that every thing in the premises is liable to distress. Woodf. 300. The exception is stated in Willes, 514. Simpson v. Hartop. The privilege belongs to the trader. Gisborne v. Hurst, 1 Salk. 250.
    In Francis v. Wyatt, 3 Burr. 1481, W. B. 483,. a coach sent to a livery stable, was held liable to distress: it being part of the profits of the premises. He also cited Com. Dig. Distress, B. 521, 523.
    
      Chauncey, contra.
    
    Goods in the hands of a wharfinger áre protected — so of an auction store, so of a factor, in the store of which he is the tenant. He cited Co. Lit. 47. a. Comyn’s Land, and Tenant, 317, 330. Cro. El, 596. 1 Bay, 102.
   The opinion bf the court was delivered by

Gibson, C. J.

The right to distrain the property of a stranger, rests on no principle of reason or justice. It is a feudal prerogative, handed down from times when chattels were of little account, and when it may have been impolitic, if not unreasonable, to embarrass the lord with responsibility to one who had thrust jiis property in the way of the remedy to compel a performance of the services. But commerce which wrought a change in the habits and pursuits of men, and gave an importance to personal transactions, necessarily produced a relaxation of the rule, so as to admit of a variety of exceptions, some of them of .early origin, in favour of trade. These have been so often enumerated, that it would be useless to pass them in review here, particularly as no two of the judges seem to have taken the same view of the principles applicable to them, or of the ground on which they were sustained. But be this as it may, there is little reason to doubt that the exceptions will, in the end, eat out the rule. 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. But this recourse cannot be presumed to have been in the view of the parties, where it would defeat the very object of the contract. The particular business for which the premises are let, is always known to the landlord; and where the course of it will necessarily put the tenant in possession of the property of those who deal with, or employ him, it is fair to presume, the landlord intended to dispense with his prerogative, because to do so would be manifestly for his advantage. This seems to have forced itself on the attention of Lord Mansfield, in Francis v. Wyatt; and, it is difficult to conceive how the court, in that case, arrived at the conclusion which it ultimately adopted. The.reason assigned by Mr. Justice Blackstone, that the price of keeping the chariot was a part of the profits of the premises, is altogether unsatisfactory; for the price paid for shoeing a horse which is privileged from distress, is, in some respects, a part of the profits of the shop; and in the case of goods landed at a wharf, or deposited in a storehouse, (which, it is conceded, are privileged,) the price paid is purely a part of the profits. The truth is, that Francis, and Wyatt, on which the defendant’s case mainly depends, would now hardly be acknowledged as authority in Westminster Hall, the decisions, since the American Revolution, being inconsistent with it. Where the course of the business must necessarily put the tenant in possession of the property of his customers, it would be against the plainest dictates of honesty and conscience, to permit the landlord to use him as a decoy, and pounce upon whatever should be brought within his grasp, after having received the price of its exemption in the enhanced value of the rent. What is the case on these pleadings? It is admitted, that the tenant used the trade and business of a merchant; received goods and merchandizes from merchants and traders on storage, in the way of his trade; and that the plaintiff put the tobacco in his stores and warehouses, in the way of trade. It is immaterial that the occupation of the tenant was not exclusively that of a warehouseman. In England, trades and occupations are more definite in their nature, than here, where commerce is less regular in its operations; and in adapting a rule to its demands, we must necessarily have regard to the condition of things as we find them. To take goods on storage, though not the appropriate business of our merchants, is of such common occurrence, as to furnish an intendment that it enters into the consideration of the parties to every lease of a warehouse. The landlord knows that it is to be used for the general purposes of trade, and as this sort of bailment usually forms a part of the business of commerce, wfe are bound to say,, the parties had regard to it as one of the usages of trade; and the landlord must, therefore, be considered as having waived his privilege in this particular instance.

Demurrer overruled.  