The opinion of the court was delivered, January 5th 1874, by
That the goods of a stranger found on the demised premises are liable to distress’ for rent, is a well-settled principle of the common law. To this general rule there are many exceptions in fact, but few in principle. The goods of a third person placed in the way of trade on storage, in the warehouse of one who received goods on storage, are not liable to distress for rent for such warehouse, although found on the premises : Brown et al. v. Sims et al., 17 S. & R. 138; Briggs et al. v. Large et al., 6 Casey 287; nor are the goods of a guest’ for rent due by the innkeeper, nor those of a boarder for rent due by the keeper of the boardinghouse : Riddle v. Welden, 5 Whart. 9; nor grain sent to a mill, nor cloth in a tailor shop, nor goods on a wharf, nor goods of the principal in the hands of a factor for rent due from the one temporarily having the possession of the goods. Nor are goods in the *390custody of tlie law liable: Pierce v. Scott, 4 W. & S. 344; nor property of a tenant bolding by a renewed lease, for the payment of arrears of rent due from a previous tenant: Clifford v. Beems, 3 Watts 246; Beltzhoover v. Whitman, 1 W. & S. 416.
The principle covering these cases during the tenancy, except when the goods are in the custody of the law, is this: where the tenant, in the course of his business, is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property, although on the demised premises, is not liable to distress for rent due thereon from the tenant: Brown et al. v. Sims et al., supra.
If the property of the defendant was not liable to distress, it was saved therefrom by the protection of this rule only. What are the facts? The demised premises contained about twelve ac.vs. There was a steam saw-mill, a brick and frame dwelling-house, blacksmith shop, boat-yard, stable, &c., thereon. The property in question was upon the demised premises when it was distrained. It consisted of one coal-barge and lot of barge timber, and plank sufficient for another barge upon the boat-yard; a quantity of iron, spikes, bolts and oakum in the blacksmith shop; and a lot of oak streamers, pine scantling, boards, plank and timber at the sawmill. All the lumber had been manufactured at this saw-mill, by Porter, Wylie & Agnew, while they were in the^ employ of Porter-field, and under an arrangement with him. The evidence wholly fails to show in what manner Porterfield used the boat-yard, whether in building boats himself upon it or permitting others to build; or whether he or they furnished the materials. It also fails to show that the defendant’s possession of the boat was with the permission or even knowledge of Porterfield. It appears that Porter, Wylie & Agnew gave the defendant permission to build the barges upon the boat-yard, but their authority so to do is not shown. Whether the defendant was a tenant or a trespasser, he was in actual possession of the yard. He sent his employees there to build the barges. He also procured and sent there the iron, spikes, bolts and oakum necessary to be used in building the barges. The boat-yard was separated from the mill by a creek. The defendant had taken possession of all this lumber lying in that yard. He set about working it up, he mingled it with the other materials which he brought upon the ground. Those materials had never been in the possession of the plaintiff. The defendant had progressed so far with the work as to have completed one barge before the property was distrained. At this time Porterfield had no possession of this property. It was in the exclusive possession of the defendant. He established a business there in which it is not shown that Porterfield was engaged. With what propriety, then, can the defendant invoke the rule which exempts from distress the property of a third person, while it is necessarily in *391the possession of the tenant in the course of his business ? He had established upon the boat-yard an independent business; a business in which the tenant Porterfield is not shown to have had any interest, or over which he had any control. The possession and exclusive control had been maintained by the defendant for several weeks prior to the distress. Neither Porterfield nor the persons from whom the. defendant purchased the lumber set up any claim to possession. The defendant held the property and the possession by his independent right. The situation of the property, then, did not admit of the application of the rule which the defendant invokes. That portion of the property of which the defendant thus had the possession was liable to distress, and thus qualified, the third assignment is sustained.
We think the learned judge erred in admitting the evidence covered by the eighth assignment. Whether the distress was excessive or whether other property not replevied was “sufficient to satisfy the said rent or a large portion thereof,” was irrelevant in the issue being tried. The pleas were “ rent in arrear, warrant for distraint, &c.” The replication interposed three obstacles to the distress, to wit: First, a denial of tenancy. Secondly, an averment that no rent was in arrear; and thirdly, that the goods in question were not liable to distress.
If any rent was in arrear, it mattered not how much, in this action, the right to distrain existed. If there was none, this evidence could not aid the defendant. If any rent was due the landlord had the right to enter and to distrain. The entry and distress then being lawful in Tact, the plaintiffs were not liable as trespassers for an excessive' distress. The proper remedy in such case is by action on the case founded on the Statute of Marlbridge: McKinney v. Reader, 6 Watts 41. The other assignments of error are not sustained.
Judgment reversed, and a venire facias de novo awarded.