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Miss., 686. Neither of these cases support the proposition for which they are cited. On the contrary, they decide, in substance and effect, that Acts necessary to peace and good order among citizens-such, for example, as laws which sanction and protect marriage and domestic relations, govern the course of descents, regulate the conveyance and transfer of property, provide remedies for injuries to person and estate, and other similar Acts which would be valid if emanating from a lawful government-must be regarded as valid when proceeding from an actual, though unlawful government; but that Acts in further ance and support of rebellion and against the just rights of the citizens must be regarded as invalid, which accords with the rule of decision adopted and promulgated in the prior decision of the same court, and which is all that need be said responsive to that proposition. 490*] *III. Under the circumstances it will not be necessary to add much to what has been remarked responsive to the preceding proposition to refute the third one of the series, as the language of the final proposition decided by the State appellate court is borrowed from the decision in Texas v. White, 7 Wall., 733, 19 L. ed. 240, of this court upon the same subject. Certain Acts, such as those described by the State appellate court, it is admitted, are valid, but the late Chief Justice, as the organ of the court, proceeded to say that Acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of the citizens, and other Acts of like nature, must be regarded as invalid and void. Nor is there anything in the case of White v. Hart, 13 Wall., 650, 20 L. ed. 687, which is in the slightest degree inconsistent with the rule laid down in the preceding case.

Exactly the same doctrines were laid down in the case of Huntington v. Texas, 16 Wall., 413, 21 L. ed. 318, in which the opinion of the court was also given by the late Chief Justice. Bonds for the payment of money to a large amount were issued, before the rebellion, by the United States to the State of Texas, to

adjust certain claims made by that State growing out of a dispute as to her boundaries. Part of those bonds were still in the treasury of the State when the rebellion broke out. Texas joined the rebellion, and during that period some of those bonds were used by the ruling power of the State. War ensued, but in the progress of events the rebellion was crushed. Various efforts were subsequently made to re-organize the States of the Federal U were so far successful

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the object and purpose of it. If that was just in itself and laudable, the alienation was valid, but if the object and purpose were to break up the Union and to overthow the constitutional government, the alienation was invalid. Surely such remarks do not serve to support the proposition of the appellant; and he is equally unfortunate in his reference to the case of Horn v. Lockhart, 17 Wall., 580, 21 L. ed. 660, in which the opinion was given by Mr. Justice Field. Order, say the court in that case, was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in times of peace. No one that we are aware of, say the court, seriously questions the validity of judicial or legislative Acts in the insurrectionary States touching these and kindred subjects where they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution. Viewed in the light of the qualifying phrase, the remarks reproduced accord with the present views of the court, as the qualifying phrase is equivalent to an affirmative decision that judicial and legislative Acts hostile in their purpose or mode of enforcement to the authority of the National Government, or which impaired the rights of citizens under the Constitution, are invalid and void, which, in principle, is exactly what the State appellate court decided in this case.

Decree of the State Court affirmed.

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*1. Every admission upon which a party relies is for his side, with the qualifications which imit to be taken as an entirety of the fact which makes modify or destroy its effect. When, therefore the agent and officers of an insurance company to the agent of a party claiming upon & n insurance, that the preliminary proofs pimenta were sufficient as to the death of the Ins that they showed that the insured had marr suicide, the whole admission must be gether if sufficient to establish the insured, it was also sufficient ut show of his death.

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The case sufficiently appears in the opinion., proofs, or a question on which defendant in Messrs. Frederick T. Frelinghuysen, error was bound to speak at the time, in order Edward L. Stanton, C. Parker and Alex. to constitute these voluntary recitals admisMartin, for plaintiff in error: sions.

Heretofore, in insurance cases, it has been Cluff v. Mut. Ben. Life Ins. Co., 99 Mass., frequently mooted whether statements con- 317; Newton v. Mut. Ben. L. Ins. Co., 2 Dill., tained in the proofs of loss estopped the as- 154; N. Am. Ins. Co. v. Burroughs, 2 Big. L. sured, or whether they were merely admissi- & A. Ins., 166. ble as testimony and subject to contradiction and correction.

Campbell v. Charter Oak Ins. Co., 10 Allen, 213; Irving v. Excelsior Ins. Co., 1 Bosw., 507; N. Y. Cent. Ins. Co. v. Watson, 23 Mich., 486; McMahon v. Ins. Co., 3 Ins. Law. J., 73; Parmellee v. Hoffman Ins. Co., 3 Ins. Law J., 111; Germania v. Curran, 8 Kan., 9; Hubbard v. Hartford Ins. Co., 33 Iowa, 325; DeCamp v. N. J. Mutual Life Ins. Co., 3 Ins. Law J., 89; Conn. Ins. Co. v. Huckberger, 52 Ill., 464; N. A. Ins. Co. v. Burrows, 28 Legal Ins., 342; Ins. Co. v. Francisco, 17 Wall., 672, 21 L. ed. 698. With the single exception of the case at bar, proofs of loss have, in every instance, been admitted, if not as an estoppel on the plaintiff, as at least evidence proper to be considered by the jury, but open to explanation or correction.

Mr. T. Z. Blakeman,, for defendant in

error:

It was not necessary for defendant to produce the proofs on trial in making out her case. It was sufficient for her to show that proofs of death were given, and that the Company admitted that the proofs were satisfactory, or that it based its refusal to pay upon other grounds than the sufficiency of the proofs. Atlantic Ins. Co. v. Wright, 22 Ill., 462; McMasters v. Westchester Ins. Co., 25 Wend., 379; Miller v. Eagle L. & H. Ins. Co., 2 E. D. Smith, 268; Lewis v. Monmouth F. Ins. Co., 52 Me., 492; Hincken v. Mut. Benefit L. Ins. Co., 3 Big. Ins. Rep., 711, 50 N. Y., 657.

The assertions in the proofs on the part of the affiants as to the manner of death have none of the requisites to constitute an estoppel. They were not sworn to, indorsed or assented to by defendant in error. The manner of death was not required to be proved by the terms of the contract; consequently, the manner of death was not a question to be decided by the proofs. The Company was not, by the disclosures of the manner of death in the proofs, led to adopt or abandon any particular line of defense.

Greenl. Ev. §§ 204, 207; 2 Stark. Ev., 100, 17; Campbell v. Charter Oak Fire Ins. Co., 10 Allen, 213; Bliss, Life Ins., 2d ed., p. 443; McMasters v. Ins. Co. of North America, 64 Barb., 536, affirmed on appeal, 3 Ins. Law Jour., 273; Germania F. Ins. Co. v. Curran, 8 Kan., 9.

The disclosures as to the matter of death did not amount to admissions on the part of the defendant in error. The contract only required "due notice and proof of death." The proofs were submitted to prove the fact of death, and they were satisfactory on this point to the Company. The affidavits were not signed or indorsed by the defendant in error, and there is no evidence that she assented to or adopted their contents. The recital of the manner of death was gratuitous and unnecessary on the part of the affiants, and on a subject not in question at the time. The manner of death must have been a question to be decided by the

The defendant in error not only refrained from assenting to, or adopting as her own, the narration of the manner and circumstances attending the death, as shown in said affidavits, but she denied the truthfulness of the affidavits in this respect, by demanding of the Company, again and again, the payment of the amount of the policy. She submitted the affidavits under the terms of the policy, to prove the death. The Company assured her that the proofs disclosed the fact of death; that they were satisfied of said fact from the proofs. She knew that "death by his own hand" would avoid the policies, and she denied the imputed manner of death by demanding the payment of the policies.

The Company was not misled in its defense by the disclosures as to manner of death in the proofs, but set up several defences. It took depositions in California, at the place where death occurred, to sustain their defenses. The defendant in error read those depositions at the trial in support of her own allegations, and the jury were convinced by them that the insured did not "die by his own hand."

Mr. Justice Field delivered the opinion of the court:

The policies upon which this action is brought stipulate for the payment of the insurance money within ninety days after due notice and proof of the death of the party insured; but they provide, also, that the policy shall be void if the insured shall die by his own hand.

In answer to the action the Company avers that the insured did thus die by his own hand, and that the policies thereupon ceased to be binding.

The insured died at Los Angeles in California in June, 1870, and proofs of his death were delivered by the father of the plaintiff to the agent of the Company in August following. These proofs showed that the deceased committed suicide. They consisted of several affidavits, giving the time, place and circumstances of his death, and the record of the finding of the jury upon the coroner's inquest. The finding was that the deceased came to his death "By a pistol shot fired by a pistol in his own hand through the heart."

On the trial the father of the plaintiff testified that he was the agent, in the matter of these policies of his daughter, and that acting in that capacity, he had delivered the written proofs mentioned, to the agent of the Company at St. Louis, and had demanded payment of him and afterwards, also, of the officers of the Company, at the home office in Newark, New Jersey; that at neither place was any objection made, either by the agent or the officers of the Company, to the form or fullness of the proofs of the death of the insured; that the agent had said that they were sufficient as to form; but that at both places objection was made, at the same time that the proofs disclosed a case

of suicide, and on that account payment of the insurance was refused.

doctrine as strict as this in the present case;. and possibly the rule there laid down is properly applicable only where the insurers have been prejudiced in their defense by relying upon the statements contained in the proofs. Be that as it may, all that we now hold is that the preliminary proofs are admissible as prima facie evidence of the facts stated therein against the insured and on behalf of the Company. No case has come under our observation, other than the present, where the preliminary proofs presented by the insured have been entirely excluded as evidence when offered by the insurers, the question being in all the cases whether these proofs estopped the insured from impeaching the correctness of their statements, or from qualifying them, or whether they were subject to be explained and varied or contradicted on the trial.

The court allowed the statement to the witness as to the sufficiency of the proofs of death of the insured to be received as conclusive of that fact, but by its charge to the jury in effect separated the admission of that fact from its accompanying language, that the proofs disclosed a case of suicide, and held that this latter statement was of an independent fact to be established by the Company. In this particular we think the court erred. Every admission is to be taken as an entirety of the fact which makes for the one side, with the qualifications which limit, modify or destroy its effect on the other side. This is a settled principle which has passed by its universality into an axiom of the law. Here the admission related to the two particulars which the proofs established, the death of the insured and the The case of Cluff v. Ins. Co., 99 Mass., 317, manner of his death, both of which facts ap- in the Supreme Court of Massachusetts, cited pear by the same documents. They showed by the plaintiff, is far from sustaining his the death of the insured only as they showed position. There the beneficiary *had sub- [*37 that he had committed suicide, and all that mitted in connection with the preliminary the officers of the Company evidently intended proof certain slips cut from newspapers showby their declaration was that they were satis- ing reports that the insured had died in known fied with the proofs of the one fact because violation of law. On the trial upon the issue, they established the other. The whole admis- whether the plaintiff had, ninety days previous sion should, therefore, have been taken to-to the commencement of the suit, furnished gether. If it was sufficient to establish the the Company sufficient proof of the death of death of the insured, it was also sufficient to the insured, the plaintiff put in evidence cershow that the death was occasioned in such tain affidavits by which that proof had been a manner as to relieve the Company from re-made, but did not offer the slips; the latter sponsibility.

But the court also erred in excluding from the jury the proofs presented of the death of the insured when offered by the Company. When the plaintiff was permitted to show what the agent and officers of the Company admitted the proofs established, it was competent for the Company to produce the proofs thus referred to and use them as better evidence of what they did establish.

But independent of this position, the proofs presented were admissible as representations on the part of the party for whose benefit the policies were taken, as to the death and the manner of the death of the insured. They were presented to the Company in compliance 36*] with the condition of the policy requiring notice and proof of the death of the insured as preliminary to the payment of the insurance money. They were intended for the action of the Company, and upon their truth the Company had a right to rely. Unless corrected for mistake, the insured was bound by them. Good faith and fair dealing required that she should be held to representations deliberately made until it was shown that they were made under a misapprehension of the facts, or in ignorance of material matters subsequently ascertained.

were then offered by the Company and were excluded, and the Supreme Court, in reviewing the case, held that the exclusion was not a valid ground of exception unless it plainly appeared that the insurers were prejudiced thereby, and that they were not so prejudiced because the fact of death was otherwise sufficiently shown. "When an apparent ground of defense," said the court, "is disclosed by a separate and unnecessary narration of circumstances, and the proofs required by the policy are complete without that narration and disclosure, it cannot be said that the party has failed to comply with the conditions imposed upon his right to litigate his claim; and the effect of such disclosure to defeat the action must depend upon the degree to which the plaintiff is bound by the statement. If not sworn to by the plaintiff, nor treated by him in such manner that he is concluded by his conduct, the whole question will be open to explanation and proof upon the main issue subject to the usual rules of evidence."

In the present case the proofs presented were sworn to; they consisted, as already stated, of affidavits and the record of the finding of a jury under oath. Here the narration of the manner of the death of the deceased was so interwoven with the statement of his There are many cases which hold that where death that the two things were inseparable. a mistake has occurred in the preliminary The fact that the proofs were presented by proofs presented, and no corrected statement is the father of the plaintiff and not by the furnished the insurers before trial, the insured plaintiff herself cannot change their character. will not be allowed on the trial to show that They were the only proofs presented, and withthe facts were different from those stated. The out them there was no attempted compliance case of Campbell v. Ins. Co., 10 Allen, 213, with the condition of the policies. He was the decided by the Supreme Court of Massachu- agent of the plaintiff with respect to the polisetts, and the case of Irving v. Ins. Co., 1cies, intrusted by her with the presentation of Bosw., 507, decided by the Superior Court of the preliminary proofs. *Presented in [*38 the City of New York, are both to this effect. her name and by her agent in the matter, and It is not necessary, however, to maintain any constituting the essential preliminary to her

action, they must stand as her acts, and the representations made therein must be taken as true until at least some mistake is shown to have occurred in them. As already said, no suggestion is made that these proofs do not truly state the manner of the death of the insured. It is sought, however, to avoid their effect in favor of the Company by taking a part of the statement of its officers as to what the proofs showed, and rejecting the residue, and then excluding the proofs themselves. This position cannot be sustained without manifest injustice to the Company.

The judgment must, therefore, be reversed, and a new trial ordered.

JAMES MORGAN, Appt.,

v.

GEORGE W. CAMPBELL, Assignee of the Estate of Henry Leibenstein and Joseph Speigel, Bankrupts.

(See S. C., 22 Wall., 381-394.) Landlord's lien in Illinois-levy necessary— bankruptcy.

1. The Illinois Statute confers upon the landlord a lien upon the crops growing or grown upon the demised premises in any year for the rent of that year, but no specific lien is given upon other property of the tenant.

2. Prior to the levy of a distress warrant by the landlord, he has no lien on the personal property of the tenant on the premises except the crops. 3. Where a distress warrant was levied by the landlord on such property other than crops, after proceedings in bankruptcy had been commenced against the tenant, the assignee in bankruptcy sub sequently appointed will hold the property against the landlord.

[No. 732.]

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The case is stated by the court.

Mr. J. A. Sleeper, for appellant: By the common law and the Statute of the State of Illinois and the law of the State, as expounded and interpreted by the Supreme Court of Illinois, the lien of the landlord, on the property of the tenant for rent due, is paramount and superior to the right of an execution or attaching creditor, a general assignee for the benefit of creditors, or an assignee in bankruptcy.

Penny v. Little, 3 Scam., 301; 3 Kent, Com., 485; Tayl. Land. & Ten., tit. "Distress for Rent," 439, 6th ed. and n. 1 to sec. 557; Bradby Dist., 22-33.

The right to exercise the power to distrain,

NOTE.-Distress for rent.

A distress for rent is now no more than a summary method of seizing and selling the tenant's property to satisfy the rent which he owes. Tay for's Land. & Ten., sec. 557.

The common law and most of the English statutory provisions regulating a distress for rent were quite generally adopted in the United States. In the New England States it never obtained; in New York and Mississippi it was abolished by statute: in North Carolina it has been held inconsistent with the spirit of the laws and government, and in other States it has been modified or abolished by statute. Burket v. Bond, 3 Dana, 209: Garret v. Hughlet, 1 Har. & J. 3, 7 Har. & J. 370; Ridge v. Wilson, 1 Blackf., 409; Mayo v. Winfree, 2 Leigh, 370; Owens v. Connor, 1 Bibb, 607; 1 McCord, 299; Dagleich v. Grandy, Can. & Nor., 22; Deaver v. Rice, 3 Bat.. 431; Youngblood v. Lowry, 2 McCord, 39; Talvande v. Cripps, 3 McCord, 147; Reeves v. McKenzie, 1 Bailey. 497; Potter v. Hall, 3 Pick., 260

rests upon the lien which the landlord has upon the property, and always presupposes some right in or lien on the thing to be distrained, upon which the right rests, and the distress warrant is the process of execution, for the enforcement and execution of it. To state the proposition differently, for rent-service, or rentcharge, where power of distress is reserved, the property of the tenant is primarily liable for the rent, and distress is the remedy, to enforce that liability.

The property being thus liable for the rent, it follows that the landlord has a lien on it, from which flows his right to take it by his private act of distress or distress warrant.

We are aware that this question has, before this case, been once before the very able and learned judge of the Circuit Court of the United States in this district, when he was District Judge (In re Joslyn), in the district court, and that his decision was affirmed on appeal to the circuit court, by His Honor, Justice Davis. In re Joslyn, 2 Biss., 235.

We think that the learned judge in his opinion misconceived the principle of the case of Rogers v. Dickey, 1 Gilm., 636, upon which he relied as a warrant for him to overrule the case of O'Hara v. Jones, 46 Ill., 288.

I submit that the sections of the statute which were in force when the rents became due from the bankrupts to Morgan, by the force of their terms created a lien in favor of the landlord, and that when the petition in bankruptcy was filed, the goods of the bankrupts were subject to this lien.

Fowler v. Rapley, 15 Wall., 328, 21 L. ed. ed. 254; Marshal v. Knox, 16 Wall., 551, 21 35; Holdane y. Sumner, 15 Wall., 600, 21 L. L. ed. 481; Re Rose, Lyon & Co., 3 Bk., Reg.,

265; Re Wynne, 4 Bk. Reg., 23; Ex parte Mor

row, Re J. B. Young, 1 Low., 386.

Mr. Adolph Moses, for appellee:

The court will perceive, as to the personal property of a tenant, that the statute creates no lien whatever, but simply recognizes the existence of the right of distress at common law, and attempts to regulate its exercise.

But as to the crops and agricultural products, the statute confers a lien; and the distinction of law between movable property and crops is based upon considerations of policy. It is no damage to agricultural products to be subject to a lien, but it hampers the sale and exchange of personal property, which consideration has a wider scope than the mere protection of the landlord.

A careful reading of the case of Penny ▼.

The rent must be certain or capable of being made certain, and payable at a certain time, in order to give a right of distress. Dunk v. Hunter, 5 B. & A., 322; Valentine v. Jackson, 9 Wend., 322; Grier v. Cowan, Addis., 347; Reeves v. McKenzie, 1 Bailey, 500; Daniel v. Gracie, 6 Q. B., 145, 13 L. J. Q. B., 309; Wells v. Hornish, 3 Pa. 30; Reynart v. Porter, 7 Bing., 451; Jacks v. Smith, 1 Bay, 315; Smith v. Fyler, 2 Hill, 648; Smith v. Colson, 10 Johns., 91.

In order to sustain the right of distress, the relation of landlord and tenant must exist and be actually completed, and not merely in contemplation; there must be an actual demise and not a mere agreement for a lease. Schuyler v. Leggett, 2 Cow., 660; Jacks v. Smith, 1 Bay, 315: Knight v. Bennett, 3 Bing., 361; 12 East, 134; Hegan v. Johnson, 2 Taunt., 148; Hancock v. Austin, 14 Com. B., N. S., 634: Spencer v. Burton, 5 Blackf.. 57; Watson v. Waud. 8 Exch., 335; Cohen V. Broughton, 54 Ga., 296; Hill v. Stocking, 6 Hil 277.

Little, 3 Scam., 301, will show that the court, | Fowler v. Rapley, 15 Wall., 328, 21 L. ed. 35; in that opinion, carefully treats simply of the Marshall v. Knox, 16 Wall., 554, 21 L. ed. 483. right to distrain for rent, and that the phrase, "landlord's lien" is not used therein.

This decision is not a warrant for the position of the court in O'Hada v. Jones, 46 Ill., 288, that "Under our law, the landlord has the lien and a right to distrain."

Mr. Justice Davis delivered the opinion of the court:

This is a contest between a landlord of demised premises and the assignee in bankruptcy of his tenants. Morgan, the appellant, leased We might well content ourselves with the a storehouse in Chicago to Libenstein and decision In re Joslyn, 3 Bk. Reg., 118, (2 Biss., Speigel, at a certain monthly rental, beginning 238), wherein His Honor Judge Drummond, on the 18th of June, 1872. These tenants were then District Judge, reviewed this whole sub-in arrears for several months when, on the ject-matter in 1870, for the guidance of the 17th day of May, 1873, the landlord issued practice in the Northern District of Illinois. his distress warrant to the proper officer, which His conclusions, which have always been re- was levied on the same day upon property of garded as satisfactory to the Bar, were, on ap- the lessees on the premises, and possession peal, affirmed by His Honor, Judge Davis, sit-held by a custodian appointed for the purpose. ting in the circuit court. The opinion is main-Three days preceding this transaction, a petily devoted to the effect of proceedings by dis- tion was filed in the District Court for the tress, commenced prior to the filing of the Northern District of Illinois, by a creditor of petition in bankruptcy; yet, the scope of the the lessees, to put them into bankruptcy, which decision traverses the effect of the statute as a proceeding resulted in the debtors being dewhole. If the position of appellant be true, clared bankrupts, and in the appointment of that the lien is given by the statute, then pro- appellee as their assignee. The assignee took ceedings would have been unnecessary to fix possession of the goods so taken on distress the lien, and appellant might well file his bill by the appellant, who brings his bill in chanto have his statutory lien (?) allowed out of cery for relief, asserting that he is entitled to the proceeds. Having levied his warrant after a valid and first lien, by virtue of the Statutes the commencement of bankrupt proceedings, of Illinois, upon all the goods and chattels of he stands in the same position as if he had his lessees in the County of Cook, to the not instituted any proceedings, and the follow- amount of the rent unpaid on his lease, and ing language used in In re Joslyn, supra, applies asking that the appellee may be decreed to to this case. "Of course it follows, from what pay over to him the full amount of unpaid has been said, that where no distress warrant rent. A demurrer was sustained to the bill has been issued, as is the fact in some of the for want of equity, and this appeal is brought cases upon which the judgment of the court here to revise the judgment of the court below. has been asked, prior to the filing of the petition in bankruptcy, that the landlord can have no preference over the general creditors, but must prove his debt like any other general creditor of the bankrupt and, consequently, that all the property, so held by the tenant is vested in the assignee."

We deem it useless to argue to this court the difference between the laws of Louisiana and the District of Columbia, and those of Illinois on this subject.

The bill in this case cannot be sustained, unless the laws of Illinois conferred upon the landlord a statutory lien upon the personal property of the tenant in the county prior to the levy of the warrant. If the lien existed independently of the warrant, and the warrant was used merely as a means of enforcing it, then the theory of the bill is correct, On the contrary, if no lien could be acquired until at least the warrant was actually levied, the court below did not err in dismissing the bill.

The 6th and 7th sections of the Illinois

Webb v. Sharp, 13 Wall., 14, 20 L. ed. 478; Where there is a surrender terminating the rela-, cles excepted, and the tendency of our decisions is. tions of landlord and tenant, or where the landlord upon the whole, against the right of distraining elects to treat the tenant as a trespasser, or exer- goods not the property of the tenant. 3 Bl. Com., cises an option to regard the lease as void, the 7: 3 Kent, 476; Kessler v. McConachy, 1 Rawle, right to distrain is gone. Bain v. Clark, 10 Johns., 435; Gorton v. Falkner, 4 Term, 565; Howard v. 424; Jones v. Carter, 15 Mees. & W., 718; Jack-Ramsay, 7 Harr. & J., 113; Harvie v. Wickham, 6 son v. Sheldon, 5 Cow., 448; Bridges v. Smyth, 5 Bing.. 410, 2 Moore & P., 740; Franklin v. Carter, 1 Com. B., 750; S. C., 3 D. & L.. 213; Williams v. Stiven, 9 Q. B., 14.

The right to distrain is not waived or lost by taking, as collateral security, a note or bond, or note and chattel mortgage, or bond and warrant of attorney, or even by a judgment pursuant to such bond and warrant. Chipman v. Martin, 13 Johns.. 240 Cornell v. Lamb, 20 Johns, 407; Bantleon v. Smith, 2 Binn., 146; Bailey v. Wright, 3 McCord, 484; Price v. Limehouse, 4 McCord, 544; Bates v. Nellis, 5 Hill, 651: Snyder v. Kunkleman, 3 Pa.. 487; Atkins v. Byrnes, 71 Ill., 326; Davis v. Gyde,

4 Nev. & Man., 462.

But taking note as payment destroys right to distrain Warren v. Forney, 13 Serg. & R., 52.

No distress lies till the rent is due. Bailey v. Wright, 3 McCord, 484.

Horse sent to livery stable to be fed and cared for cannot be distrained for rent. Youngblood v. Lowry, 2 McCord, 39, 13 Am. Dec., 698.

Though, at common law, all movable chattels found upon the rented premises might be distrained for rent, whether they were the property of the tenant or a stranger, yet there were, very early, arti

Leigh, 236; O'Donnell v. Seybert, 13 Serg. & R., 54; Karns v. McKinney, 74 Pa. St., 387; Gilman v. Elton, 6 Moore, 243; Holt v. Johnson, 14 Johns., 425; Snyder v. Hill, 2 Dana, 204; Brown v. Sims, 17 Serg & R., 138; Connah v. Hale, 23 Wend., 475; Bevan v. Crooks, 7 Watts & S., 452; Riddle v. Welden, 5 Whart., 1; Stone v. Matthews, 7 Hill, 428; Owen v. Boyle, 22 Me., 47; McCreery v. Claflin, 37 Md., 435, 11 Am. Rep., 542; Cadwalader v. Tindall, 20 Pa. St. 422.

Books of account of a merchant are not liable to seizure for rent. Davis v. Arledge, 3 Hill (S. C.), 170, 30 Am. Dec., 360.

Distress must, at common law, be made on the demised premises. The right ceases on the removal of the goods. Martin v. Black, 9 Paige, 641; 38 Am. Dec., 574.

An action will not lie for distraining for more rent than is due. Hamilton v. Windolf, 36 Md., 301, 11 Am. Rep.. 491.

The goods of the principal in the store of his commission merchant for sale are not liable to distress for rent due by the latter to the landlord of the premises. McCreery v. Claflin, 37 Md., 435. 11 Am. Rep., 542.

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