for rent. The exemption would seem to be general in those cases in which the course of business necessarily puts the tenant in temporary possession of the property of his customers.b With respect to the cattle of a stranger found upon the land, there is this distinction, that if they broke in they are distrainable immediately, but if the fences were bad, they are not distrainable, until the owner, after notice, has neglected to take them away. Corn and grass, whether growing or cut, are seizable by way of distress, and those articles and cattle may be secured or impounded upon the premises, and there sold.d The distress must be reasona*478 ble, and it cannot. *be made in a public highway, 2 Saund. Rep. 289. a. n. 7. Gisbourne v. Hurst, 1 Salk. Rep. 249. 3 Blacks. Com. 8. Gilman v. Elton, 3 Brod. & Bing. 75. Co. Litt. 47. a. Thompson v. Mashiter, 1 Bing. Rep. 283. Matthias v. Mesnard, 2 Carr. & Payne, 353. Brown v. Sims, 17 Serg. & Rawle, 138. Youngblood v. Lowry, 2 M'Cord's Rep. 39. Adams v. Grove, 1 Crompton & Meeson, 380. Rid. dle v. Weldon, 5 Wharton, 1. Connah v. Hale, 23 Wendell's R. 462. Owen v. Boyle, 22 Maine R. 47. This last case related to goods stored in a warehouse for re-shipment, and was decided, after great discussion, by a majority of the court, not to be distrainable. If a stranger's goods be on the demised premises without his fault, and he endeavours to reclaim them with due diligence, and without any voluntary delay, they are not in that case and in that plight distrainable for rent. So, the purchaser of goods at sheriff's sale must remove them in a reasonable time, (and which is very short,) or they will be liable to distress for rent. Gilbert v. Moody, 17 Wendell's Rep. 354. b This was a principle declared by the Ch. J. of Pennsylvania, in Brown v. Sims, 17 Serg. & Rawle, 138, and Riddle v. Welden, 5 Wharton, 1, and by Mr. Justice Cowen, in Connah v. Hale, 23 Wendell, 472 477. • In South Carolina, estrays, though levant et couchant, are not distrainable for rent, but the cattle of third persons, put on the premises with the consent of the owners, are liable to distress. Reeves v. M'Kenzie, 1 Bailey's Rep. 497. ⚫ Corn growing, and sold on fi. fa., and left on the land to be reaped, is not distrainable for rent accruing after seizure on the execution. Wright v. Dewes, 3 Neville & Manning, 790. Peacock v. Purvis, 2 Brod. & Bing. 362. S. P. or removed out of the county. The highway, in particular, ought to be secure to the tenant for the intercourse of commerce, and the preservation of peace and good order. C Nor can beasts of the plough, sheep, or implements of a man's trade, be taken for rent, so long as other property can be found; but they may be distrained if not in actual use at the time, and there be no other sufficient distress on the premises. In the case of Simpson v. Hartopp, the question was, whether a stocking frame, in the actual use of a weaver at the time, was distrainable for rent; and after two distinct arguments, at different terms, it was adjudged that it was not. Lord Ch. J. Willes took an accurate and elaborate view of the law on the subject; and it was stated, that there were several sorts of things not distrainable at common law. 1. Things annexed to the freehold, such, for instance, as furnaces, millstones and chimney pieces. 2. Things delivered to a person exercising a public trade, to be worked up or managed in the way of his trade, as a horse at a smith's shop, material sent to a weaver, a horse brought to an inn; though with respect to By the New-York Revised Statutes, vol. ii. 501. sec. 5, 6, the distress cannot be driven out of the town, except to a pound within three miles dis. tance, and within the same county; and all beasts and chattels taken at one time, must be kept, as near as may be, in the same place. Nor can goods distrained be removed, if tender of the rent be made before they are impounded or removed. Vertue v. Beasley, 2 Moody & Malkin, 21. If suffi. cient distress be made, and afterwards abandoned without any reasonable excuse, a second distress for the same rent is illegal. Dawson v. Cropp, Q. B. 1845. b Gorton v. Falkner, 4 Term Rep. 565. Fenton v. Logan, 9 Bing. Rep. 676. 2 Inst. 132, 133. New-York Revised Statutes, vol. ii. 502. sec. 13. In Louisiana the landlord has a privilege, by way of pledge, on the tools of a tradesman found on the premises, for the payment of rent. Parker v. Starkweather, 19 Martin, 337. • Willes' Rep. 512. a carriage at a livery stable, it has since been determined,a that it was not privileged from distress for rent by the lessor of the stable. 3. Cocks or sheaves of corn. 4. Beasts of the plough and instruments of husbandry. 5. Instruments of a man's trade. These two last sorts were only exempted from distress sub *479 modo; that is, upon the supposition that there was other sufficient distress. The court, in that case, held, that the stocking frame was privileged from distress while the party was actually using it, even though there was no other distress on the premises. If it had not been in actual use, it might have been distrained; and if things in actual occupancy could be distrained, it would, as Lord Kenyon observed, perpetually lead to a breach of the peace. The case of Webb v. Bell,d seems to have laid down a contrary doctrine to a certain extent; for it was there held, that two horses, and the harness fastened to a cart laden with corn, might be distrained for rent. But Lord Ch. J. Willes doubted the law of that case; and even in the case itself a doubt is suggested, whether, if a man had been upon the cart, the whole team would not have been privileged for the time. In Massachusetts, under a Francis v. Wyatt, 3 Burr. Rep. 1498. This case was questioned as to the accuracy of the report, by Mr. J. Patterson, in Brown v. Shevill, 4 Neville & Manning, 277, where it was held, that all goods sent to a tradesman to be wrought upon in the trade, were, while in his custody, protected from distress; and that the rule applied to the case of a beast sent to a butcher to be slaughtered for the sender. Cocks and sheaves of corn are distrainable in England by statute, but as there is no such statute in Indiana, the common law rule prevails. Given v. Blann, 3 Blackf. Ind. Rep. 64. с Storey v. Robinson, 6 Term. Rep. 138. Fenton v. Logan, 9 Bing. Rep. 676. Field v. Adames, 12 Adolph. & Ellis, 649. S. P. 1 Sid. Rep. 440. • The sheriff, on execution, may seize a horse, though the owner is riding him at the time, which is not allowed in the case of a distress. State v. Dilliard, 3 Iredell's N. C. Rep. 102. In Musprat v. Gregory, 1 Meeson & their law of attachment upon mesne process, which is analogous to the common law doctrine of distress for rent, it has been held, that a stage-coach at a tavern, in preparation, and nearly ready to depart, might be attached; and the court inclined to think, that stagecoaches, steamboats, and vessels in actual use, might be attached, though the decision did not go to that broad extent.a Welsby, 634, the question as to articles privileged from distress was discussed with great learning and refinement, and it was held that the boat of a manufacturer, placed for receiving and carrying away salt on a canal, was not privileged, inasmuch as the salt to be conveyed was not privileged on the ground of the benefit of trade, or within any of the five rules of exemption laid down by Ch. J. Willes. ■ Potter v. Hall, 3 Pick. Rep. 368. The New-York Revised Statutes, vol. ii. 501, 502. sec. 10., Ibid. 367. sec. 22, specially exempt spinning wheels, weaving looms, and stoves, kept for use in a dwelling-house, books not exceeding $50 in value, and kept and used as part of the family library, a pew occupied by the family in a place of public worship, sheep to the number of ten, with their fleeces, and the cloth manufactured from them, one cow, two swine, and a few necessary articles of provisions and furniture, as well as wearing apparel and bedding, and owned by a householder, and the necessary tools of a mechanic to the value of $25, from distress for rent, as well as from execution. So, certain articles, as looms, spinning wheels, stoves, wool, flax, &c., to 20 lbs. weight, loaned or furnished to indigent widows and females, are exempt from distress and from execution. New-York Statutes, April 15th, 1814, c. 141. The exemption of personal property from distress for rent and sale, under execution, was still further extended in New-York in 1842. Laws N. Y. sess. 65. c. 157. It exempts necessary household furniture, and working tools, and team owned by any householder, or having a family for which he provides, to the value not exceeding $150, provided the exemption be not applied to a demand on execution for the purchase money of such articles. In the case of Quackenbush v. Danks, 1 Denio, 128, it was adjudged that this exemption act of New-York of property from dis. tress for rent and from execution, so far as it affected the remedy on past contracts, was void, as impairing the obligation of contracts. So, when a man dies, leaving a widow or minor children, there shall be a like exemption; and so, any assignment, sale or pledge of property so exempted, the consideration for which was intoxicating liquors, is declared to be void. But things annexed to the freehold for the purpose of trade or manufacture, and not fixed into the wall of any building so as to be essential to its support, and VOL. III. 44 *After the goods be not distress has been duly made, if the replevied within five days after no grain, grass and roots, whether growing or gathered and remaining on the land, may be distrained. On the other hand, personal property deposited with, or hired, or lent to the tenant with the consent of the landlord, cannot be distrained; nor can the property of others which accidentally strays on the premises, or is deposited with the tavern-keeper, or the keeper of a warehouse, in the usual course of their business, or deposited with any person for the purpose of being repaired or manufactured. Ibid. vol. ii. 502. sec. 10. 14. The property of boarders at taverns and boarding-houses is also exempted in New-York from distress for rent. Laws of New-York, sess. 56. c. 200. The statute laws of the other states, no doubt, exempt from attachment, execution or distress, or other legal process, necessary articles, requisite to keep families from suffering, including all necessary tools of a man's trade, or for limited agricultural business. 5 Mass. Rep. 313. 4 Conn. Rep. 450. 2 Wharton, 26. Acts of Georgia, December 22d, 1822 and 1834. Act of Maine, 1838, c. 307. Statutes of Tennessee, cited in 1 Humphrey's R. 391, 392. The statute of Alabama, in 1832, is exceedingly liberal on this point. It exempts from all legal process "two cows and calves, 500 lbs. of meat, 100 bushels of corn, all books, a pair of work oxen, all tools or implements of trade, 20 head of hogs," &c. The statute law of Kentucky, of 1828, exempts from execution against a housekeeper with a family, one work beast, and no more of that kind of property; and the statute of Michigan (1839) exempts from execution private libraries, not exceeding in value, in the whole, $100. The statute law of Georgia, of December 11th, 1841, exempts from execution founded on contracts in favour of heads of families, twenty acres of land, and an additional five acres for each child of defendant under fifteen years of age, provided the land derives its chief value from its adaptation to agricultural purposes. If the defendant owns more than twenty acres, he is to procure twenty acres to be laid off, so as to include the dwelling-house and improvements on the tract, not exceeding in value $1,200. The exemption is further extended to one horse and ten head of hogs, &c. By the constitution of Wisconsin, adopted in 1846, 40 acres of land to be selected by the husband, or the homestead of a family not in any city or village and not exceeding 40 acres ; or city or village lots, being the homestead of a family, and not exceeding in value $1000, are not to be subject to sale on execution for debts subsequently contracted, though such exemption is not to affect any mechanic's or labourer's lien, nor mortgages lawfully obtained, nor shall such property be alienated by the husband without the wife's consent. By the Roman law, the landlord's lien for his rent of a farm was confined to the produce of the field. Neither cattle, nor implements of husbandry, nor furniture, were included. But the rule varied in the case of houses |