McGeary v. Mellor

Mr. Justice Gordon delivered the opinion of the.court, The Act of May 13th 1876 was passed in favor of a special class of dealers and was intended to exempt certain of their wares from the common-law right of distress. By this act, as to the articles therein described, the landlord is deprived of a right and power which, before the passage of said act, he possessed. It follows, that this act, being in derogation of the common law, must receive a strict construction. In other words, the dealer’s right to have his property exempted ought not to be extended beyond the plain intent of the legislature, as indicated by the words of the act, and if these words are, as to their meaning, ambiguous or obscure, the rights of the landlord must be as fully considered, in the construction of the statute, as those of the dealer. Now the act prescribes that pianos, .melodeons and organs “shall be exempt from levy and sale on execution or distress for rent,” but, only, on condition that the owner of such instruments, or his agent, shall give notice to the landlord or his agent that the instrument is leased or hired. And why give notice to the landlord? If the object in view was only the exemption of this class of property, without regard to the rights of the landlord, why not leave it in the same condition which leased, or loaned property occupies with respect to .an execution for an ordinary debt ? We think this question can be fairly answered only upon the assumption that the legislature intended, as far as consistent with the privilege granted, to' protect the landlord from injury, and not to create a case of exemption similar to that prescribed by the Act of 1849. If, then, the proviso originated in the legislative regard for the lessor’s right, we must so construe it as fairly to carry out the idea thus made prominent, and this, a fortiori, if we do not thereby infringe the privileges granted to the dealer. The matter then stands thus: the dealer in the wares subject to exemption has it in his power, by notice, not only to relieve his own property from distress, but, also, by a judicious exercise of that power, to prevent injury to the owner of the demised premises. If notice be given when the leased instrument is put upon the demised property, or at a time when there is no rent due, the tenant is thereby prevented from acquiring a false credit and the landlord is informed that he must look to other goods for the rent of the current quarter, and, failing that, that he may proceed to regain possession of his tenement by the ordinary statutory methods. If, on the other hand, notice be given only after the rent is due, it may happen that the tenant may have received a credit to which he was not entitled, and the landlord may lose, by no default of his own, a [465] lien which lawfully attached upon the goods. Seeing, then, that the former proposition puts neither hardship nor inconvenience upon the dealer, and as it seems also consonant with the legislative intent, we think it should be adopted as the proper construction of the statute. The attempt to assimilate the act, under consideration, to the General Exemption Act of 1849, has not been successful. The former only affects the wares of a special class of dealers, and the landlord cannot know, except upon notice, whether they are leased by his tenant or owned absolutely, whilst the latter is general, and every one knows, without notice, that the exemption right belongs to the debtor, and that he may claim that right at any time before his goods are sold on execution. Further, in the one case, notice is necessary as a condition precedent to the exemption; without such notice it cannot exist; but in the other it exists without notice, and that such notice is required ht all is, only, that a presumption of waiver may be rebutted. We conclude, then, finally, that the notice, in the case in hand, given as it was, after the levy, was too late; that it should have been given when the leased instrument was put upon the demised premises, or, at latest, before the landlord’s right to distrain had accrued. The judgment of the court below is reversed, and judgment on the special verdict for the defendant, and that he have a return irreplevisable, and costs of suit. Mercur J., dissents.