I have been guided by the course the speedy redress than can be had in the House has taken with respect to Scot- ordinary forms of justice. "It is against land, it having clearly been considered reason,' says Littleton, "if wrong be desirable not to deal in the same way done any man, that he thereof should be and at the same time with urban and his own judge." The few other inrural hypothec. It is obvious that the stances in which "the law allows a man evils produced by a preferential claim to be his own avenger, or to administer for rent are of much less magnitude in redress to himself," are justified by an the case of town dwellings, where rent obvious necessity which it is impossible is only a small portion of a tenant's to plead in the case of a landlord seizing expenditure, and the fact of occupa- chattels of the tenant for non-payment tion has not the same tendency to mis- of rent. They are self-defence, which lead, than as in the case of farms, where is the first law of nature; the re-seizure the rent is a large and important item, of property, wife, or child, wrongfully and where the mere fact of being taken, which might otherwise be deaccepted as a tenant is calculated to stroyed or carried out of reach; entry create a feeling of confidence in the on land, which another person without minds of others. What I have to ask any right has taken possession of; the the House to consider is, therefore, the abatement or removal of nuisances, landlord's right to distrain for the rent which, as matters of daily convenience, of farms. The slight glance I have require an immediate remedy; lastly, attempted to take at the history of dis- the right of the person entitled to seize tress has, I hope, been sufficient to show waifs, wrecks, and estrays, because the that though the remedy itself is ancient, thing to be claimed is frequently of such the peculiar form it now has is of com- a nature as might be out of the reach of paratively recent introduction, and is, in the law before any action could be fact, entirely different from its original brought. Distress for rent differs from character. So far as it is ancient, it is all these, not only in the absence of the derived from a state of society and social pressing necessity, which is their sole circumstances totally different from the justification, but also in the fact that it conditions of modern life. So much I is a remedy for what is really a breach have felt bound to say, in venturing to of contract. Even in the Scotch Law move the abolition of a law which ex- of Hypothec, the landlord seeking to isted in the days of Canute. After all, sequestrate the tenant's property has it is a practical question which we have to make application regularly for seto decide. Is the Law of Distress, what-questration on reasons given to the ever its history and origin may be, suited to the circumstances of the present day? Is it good, or is it bad, for the country? Does it promote, or does it hinder, agricultural improvement? By these tests it must stand or fall, and I shall endeavour to apply them fairly to it. The first point that must strike everyone, in considering this law, is its highly exceptional character. As Mr. Howard Taylor has well put it— "It is not only a class law, but a class exception from law, rendering the landlord, as compared with ordinary creditors, a chartered libertine." Distress is one of the few cases in which the law permits a man to take his remedy into his own hands. It is what Blackstone calls "An extra-judicial or eccentrical form of remedy-namely, that which is obtained by the mere act of the parties themselves." Such remedies can only be excused by some pressing necessity requiring more Mr. Blennerhassett Sheriff. I believe it would be impossible to find in our law another instance in which a man is allowed to take the law into his own hands in order to obtain a remedy for a breach of contract. The practical evils resulting from the arbitrary and ill-regulative nature of the proceeding by distress were clearly pointed out to the Select Committee of the House of Lords, which sat in 1869, to inquire into the Law of Hypothec. and learned Member for Taunton-was Mr. Henry James-the present hon. examined before the Committee, and, after pointing out that anyone could distrain-the landlord could either do it himself, or choose any person he thought fit for the purpose-he added "The result is that the class of persons executing such a process-it not being a very agreeable occupation-is formed generally of persons who are for the most part insolvent themselves, ful with respect to the due performance of their and who are not certainly sufficiently careduties. They seize oftentimes a quantity their own at very much less than the real value. The result is that the tenant often has his to the landlord." of goods which is more than sufficient to satisfy | claim-the difference is one of degree. the distress, and sell them to personal friends of The principle involved in this preference was one of the points investigated by whole household broken up, when a very small the Select Committee. An attempt was seizure would have sufficed to pay his rent. If made to show that the special preferenhe complains, he has to complain by action tial security enjoyed by the landowner against the landlord for taking excessive dis- resembles some other instances in which tress. The effect is that great injustice is done to the tenant, and almost equal injustice is done special rights over property are given to certain persons in preference to general creditors by the Commercial Law of this and other nations. As this is a matter on which great stress is laid on the part of the Committee, I am afraid I must tressomewhat dry and technical argument pass on the patience of the House with a while I endeavour to get to the bottom of it. The argument in favour of hypothec is thus stated in the Report The present Lord Moncrieff pointed out the less severe operation of the Scotch Law of Hypothec, where, by the simple application for sequestration and taking an inventory, the security attaches, without the shock to the tenant's credit of going on to distrain, and taking possession of the goods. An Englishman boasts that his house is his castle; but it is a strange thing that the day after rent falls due, without notice, and without legal formality of any kind-a power which exists in the case of no other personal obligation whatsoever some dirty and drunken ruffian may be called from the streets and sent to run riot upon your premises, inflicting incalculable damage, far beyond the amount of the claim against you, damage for which redress, if it be. obtained at all, can only be sought by expensive and tedious legal process. It must, I think, be seen that such a power as this, however appropriate as an instrument in the hands of feudal lords to enforce the obedience of their vassals, is utterly out of harmony with the commercial principles which regulate the relations of the owners and hirers of land at the present day. I have endeavoured to show that distress is an anomaly and an anachronism, both as regards its nature and the means by which it is enforced. There are other respects in which it is an exceptional and peculiar law. It is a law which gives a preference to one class of creditors over all others. The general principle of law is that when a man is not able to pay his debts, his property shall be equally divided among his creditors. The Law of Distress creates a preferential claim, varying from one to six years' rent, according to the time when it is put in force in favour of one particular creditor. The Law of Hypothec, though limited, in the case of crops, to the rent of the year in which the crop is grown, and in the case of cattle to the current year's rent, gives a similar preferential "Familiar instances of such a preference "i. e. special preferential security-"are afforded by the lien that shipowners have on the cargoes of their ships for their freight, and by bottomry bonds, which give to their holders a prior claim lent for repairs necessary for the safety of the over the other creditors of the shipowner for money ship. In these cases, the law seems to have been suggested by its having been found convenient to afford special facilities for granting and obtaining credit in the transactions to which it applies." And further, in paragraph 10 "It is well known that our Commercial Law allows holders of various kinds of property to pledge to particular creditors property of which they have the command, so as to give those secured a preference over other creditors in case of their bankruptcy. Much of our valuable trade could not be carried on without this Hypothec, the tenants of land or houses are, in facility for raising money. By the Law of fact, enabled virtually to pledge their crops, and the property on their premises, as a security to their landlords for their rents, just as a merchant, importing wine or sugar, may pledge the dock warrants that represent the property, in order to obtain money to carry on his business. When either farmers or merchants become bankrupt, such pledges are good against the general creditor.” In inquiring how far these instances of preferential security resemble "distress," it is necessary to bear in mind that distress and hypothec, though their practical operation may be similar, have had a different origin and are founded on totally different principles. I shall contend that the instances of preference referred to are substantially different from the right of hypothec, and do not carry us any way in disproving the exceptional character of that law. But, even if this were not the case, it would not prove that these preferences were similar to distress. The right of hypo thec, like the hypothecation known in | is merely a right to retain the possession maritime law, is derived from the Roman of the goods, and depends on service Civil Law, and supplanted in Scotland rendered. The English law on the the old Law of Distress. As the present subject may be found in the evidence. Lord Moncreiff explained to the Com- of Mr. James, at page 8 of the Blue mittee, hypothec arises from a tacit con- Book, containing the Report of the protract, or contract arising by implication ceedings of the Select Committee. Mr. of law; it is a pledging to the landlord James saysthe property of the tenant while it remains in his possession by way of security for the rent. Distress, on the other hand, a relic of the old feudal power, though now used to enforce rights arising out of contract, is not founded on any implied contract or any notion of a hypothetical assignment of the tenant's goods. The right to seize strangers' goods disposes of this idea. As Mr. Taylor puts it "Can anything be more ridiculous than that any tenant should be imagined to create a security over his neighbours' chattels present and future for his-the assignors' own debt, may, for his future non-existing debts, a charge shifting off or on according to the whereabouts of unscheduled, unspecified property, and without warning or consideration to the neighbour affected?" This idea of a hypothecation, or pledging of the tenant's goods as a security for the rent, is perfectly inconsistent therefore with the nature of distress, and no substantial analogy between distress and maritime or other hypothecations can be maintained. I might safely leave the argument here; but to show the utter hopelessness of any attempt to defend either distress or hypothec, on the ground of a supposed resemblance between them and other preferential securities recognized by the law, it may be worth while to go a little further. Let us leave out sight the feudal origin of distress, and the absurdity of supposing that anyone could create a lien or security over the goods of another, not in his possession and without the knowledge of his owner, and let us look simply to the effect of distress as giving the landlord a preferential security for his rent, and inquire whether this preference is of the same character as that existing in maritime or other liens. Looked at in this way, the cases of distress and hypothec may be said to resemble one another, and the evidence given before the Committee is applicable to either the Scotch or the English Law. A lien is the right of a person in possession of goods to retain them until a debt due to him has been satisfied. It Mr. Blennerhassett "In our land no lien, in the proper sense of the word, can exist without possession. There to have a lien you must have possession. If, may be hypothecation without possession, but for instance, you sent cloth to be made into a coat, or if you sent your watch to be cleaned, the tailor or the watchmaker would have a lien upon those goods until he was paid; but I know of no case in which lien exists, without possession, actual or constructive. The first claim which the owner of a vessel has over the cargo for freight is a case in point, resting directly, like the liens of railway companies and other carriers, on services rendered and on pcssession." The witness subsequently referred to certain provisions of the Merchant Shipping Act, by which the person having the lien may land goods and put them into bonded warehouses, and pointed out that this was a case of constructive possession by Statute. The essence of the contract of letting and hiring land involves the making over to the tenant, for the period of the demise, of the entire right to the use of the soil which produces the crop. No one, therefore, I think, will venture to maintain that the landlord is in possession, either actual or constructive, of the property of the tenant. Still less is he in possession of the property of a stranger, which is temporarily or accidentally on the premises. It is clear, therefore, that there is no likeness between the right of lien, as commonly known to the law, and the right of distraint. The question is now narrowed to the case of hypothecations, by which preferential security can be given over goods without a transfer of possession. The only instances of hypothecation in our law are those which have been so often pressed into service. in discussions on hypothec—namely, what are called bottomry bonds and respondentia, arising out of the power intrusted to a master of a vessel, in consideration of money advanced for repairs necessary for the safety of the ship or cargo, to make the ship or cargo liable for repayment, when the voyage is safely performed. Nothing could more clearly betray the utter weakness of the case than the attempt to bolster it safe, and in the event of the vessel not arriving up by such analogy. In the first place, safe, he gets nothing at all. I do not think any the lender in bottomry bonds cannot great light is to be thrown upon the question of landlords' hypothec by these illustrations, extake the law into his own hands. He cepting that it shows it is not inconsistent with must, like any ordinary creditor, invoke the general principles of law, that where the the assistance of a Court to enforce his risk is unusually disproportionate to the interest, claims. Then the power of pledging there should be a special power of security." ship or cargo rests upon absolute ne- This evidence, coming from so high an cessity. Without such a power, it might authority, does not seem to carry us very be impossible in a foreign port to raise far in the direction of the Report. It the money necessary to put the ship in a requires a vivid imagination to see a safe state for the prosecution of her resemblance between a vessel, out of voyage. It is a power which the mas-repair in some strange and distant port, ter is not entitled to exercise if he can and unable to prosecute her voyage, raise money by other means on the credit of the owners. "Necessity alone," says Lord Stowel, "supports bottomry bonds; the absence of necessity is their undoing." I wish to speak with the utmost respect of the labours of the Select Committee; but I must confess that I have searched in vain through the evidence given before it for any grounds for the conclusions expressed in the paragraph of the Report which I have quoted. Some suggestions favourable to such a view may be found in the questions put to the witnesses, but the answers I fear can hardly have been deemed satisfactory. The evidence of an eminent English lawyer I have already referred to, and I do not think there was much comfort got out of that. A Scotch legal authority of the highest eminence, the Lord Advocate of the day, also gave evidence which was very much to the point, though not quite the same point as that indicated in the Report. At page 321 of the Blue Book, Lord Moncreiff is asked "Are there not cases in which there is a right of Hypothec over other matters as well as real "That, again, is one of the rights of lien arising out of the Merchant Law and out of the necessities of Commerce. I do not consider that there is an analogy," At page 322, he is further pressed- "I do not; a bottomry bond is a wager in creditor advancing his money is to get a very large return in the event of the vessel arriving very difficult circumstances, under which the VOL. CCXLVI. [THIRD SERIES.] with, perhaps, a perishable cargo on board, driven by sheer necessity to obtain, on any terms, the advance of money necessary for repairs, and an ordinary landowner seeking payment for his halfyear's rent with all the ordinary means of legal redress at his disposal. What is a landlord's risk compared to that of a stranger who advances money on a ship which may never reach her destination? What, even, is the landlord's risk compared to that which is incurred by the ordinary creditors of the farmer, or by ordinary creditors in commercial transactions? His position, instead of being one of extraordinary risk, is one of pre-eminent advantage. He has great power and influence over the debtor. He can protect himself in a variety of ways. He selects his tenant, and has the best means of obtaining information as to his position and character. He can make any terms he thinks necessary for his safety. He may require payment in advance, or the name of some substantial person joined as co-tenant. He can demand surety, or may take a deposit in security. Above all, the loss which he can incur is extremely small when compared with that which may fall on the ordinary trader. The trader runs the risk of losing principal and interest. Land, happily, cannot take to itself wings and fly away, as money often seems to do, and the utmost the landlord, using ordinary diligence, can lose is the rent of his land for a short period -substantially, in fact, his risk is limited to what may be considered the interest on his capital. So far, therefore, from there being in the case of the landowner's claim for rent the special urgency the preferency created by bottomry bonds, and the high degree of risk which justify he is of all creditors the safest and the least in danger of loss. I must apologize to the House for having gone so minutely | It would be obviously unjust, in dealing into this point. It really is not worth with the landowner's preferential claim, it. But I hope, by having done so, I so as to place him, for the recovery of shall have exploded a fallacy which can rent, on a level with other creditors, to only have arisen from a confused way of neglect any peculiar circumstances in his thinking and a loose and inaccurate use position which would leave him at a of language. I have now endeavoured disadvantage. That peculiar circumto show that the Law of Distraint for rent stances do to some extent exist must be is not only exceptional as to its nature admitted, and how they can in fairness and the means by which it is enforced, be dealt with is a problem which conbut that it is also without parallel in fronts the advocates of the abolition of our law, as a special preferential security distraint. This point was directly put in favour of one particular class of creditor to Lord Moncreiff in his examination over property not in his possession, and before the Select Committee. At page unsupported by the peculiar necessity 306, he is asked this Questionwhich alone justifies such security in the few other instances in which the law allows it. It is hardly necessary to allude to bills of sale and to mortgages. A bill of sale is a conveyance of goods by a person owing money to a person from whom he borrows money by way of security. It is good neither against a landlord's claim for rent nor against creditors under a bankruptcy. A mortgage is conveyance of the land subject to a power of redemption. Neither of these has any resemblance to distraint. Distraint, being a remedy of such an "I rather think that the landlord's position exceptional character, and so contrary is a super-eminent one, and that he has a good to the general spirit of the law, what deal more in his power than an ordinary credijustification can be pleaded in its de- tor, and I do not think that even if the right of fence? It is a privilege which illus-Hypothee were abolished, he would stand in a worse position than other creditors." trates the observation of Adam Smith, that "Laws frequently continue in force long after the circumstances which first gave occasion to them, and which could alone render them reasonable, are no more." Not a few reasons, however, are given in "It may be observed, moreover, that the landlord is necessarily in a position different from other creditors. A merchant, if he entertains any doubts as to a customer's solvency, can refuse to deal further with him, whereas a landlord, who lets his land on lease, parts with the control of it for a term of years; and as the eondition usually inserted in a lease, that it shall be forfeited for non-payment of rent, cannot be enforced without legal process, a considerable time may, and frequently does, elapse before he can recover possession of the land, during which a fresh debt is accruing in the shape of rent from the tenant." Mr. Blennerhassett "The landlord's position is somewhat different, is it not, from that of a dealer in manures, or in artificial food, or anything of that kind, who might at once refuse to supply anything further to his customers?" The answer is— "I observe that in the evidence given before the Commission that illustration is very frequently used, and it is true to a certain extent. At the same time, a landlord has manifestly certain counterbalancing advantages which the ordinary creditor has not, and never can have." At page 324, Lord Moncreiff says What Lord Moncreiff calls the " supereminent position" of the landlord, and the high consideration attached by the law to his claim for rent, is capable of many illustrations. Perhaps none is more striking than the decision of the Courts in the well-known case of Davis against Gyde, which, so far as I am aware, has never been questioned. If a bill or note payable at a future day be given on account of an ordinary simple contract demand, for instance, for the price of goods sold and delivered, or even if it is given on account of a judgment debt, it will suspend the right to sue for the original demand until the time has arrived at which the bill or note was payable. In Davis against Gyde, it was held that it is otherwise where such an instrument is given on account of rent, for that being a debt of a superior degree, cannot be suspended by a security of an inferior class; and, therefore, if a landlord take a note of hand at three months, or a security for the rent under a bond, or |