Martin vs. Black, 9 Paige Ch. 641

The Chancellor. Where the goods are remaining on the demised premises at the time the landlord attempts to exercise his right to distrain, and the only impediment to the exercise of the right is the possession of the court, by its receiver, it appears to be the settled practice in England to order the receiver to pay the arrears of rent out of the proceeds of the property, or to permit the landlord to proceed with his distress notwithstanding the receivership. (Smith's Off. of Rec. 78. Dixon v.

Smith, 1 Swans. 457.) In this case, however, the property was actually removed by the receiver before the landlord attempted to exercise his right to distrain. And as by the common law the distress must be made upon the demised premises, the right of the landlord terminated with the removal of the goods, unless he can bring his case within some statutory provision. In the case of bankruptcy, the landlord may dis-train the goods of the bankrupt upon the demised premises, even where the messenger is in the actual possession of the goods. (Ex parte Plummer, 1 Atk.

Rep. 103.) But if the landlord suffers the goods to be removed from the premises, by the assignee of the bankrupt, previous to his exercising the right to distrain^ he loses his remedy by distress, and can only come in rateably with other creditors for the amount due for rent. ( Coote's Land. and Ten. 470. Henley's Bank. Law, 304.) So if the goods of the tenant are turned out to a creditor in payment of a debt, and removed from the premises, although the creditor has notice that there is rent in arrear the right of the landlord to seize such goods for the rent in arrear is at an end. (Bach v.

Meats, 5 Maule & Sel. Rep. 200.) For the statute authorizing the landlord to pursue goods carried off the demised premises, and to seize them within thirty days, is in terms confined to goods which belonged to the tenant at the time of such removal. (2 R. S. 413, § 17. Frisbey v. Thayer, 25 Wend. Rep. 396. Postman v. Harrell, 6 Carr, & Payne, 225.) The property in the present case had been assigned to the receiver previous to the removal, and therefore was not the property of Black, the judgment debtor, at the time it was removed from the premises by the receiver.

If the demised premises themselves were in fact assigned to the receiver at the time of the assignment of the furniture of the judgment debtor, and the receiver had taken possession of the premises or had otherwise elected to take the term under the assignment, he would have taken it cum onere, and for the time being would have been the tenant of the premises j and a removal of the furniture would have been a removal of the goods of the tenant, within the meaning of the statute. (See Welch v. Myers, 4 Camp. Rep. 369.) But it does not appear by the papers before me that the term was in fact assigned.

And even if the assignment was broad enough to embrace it I think the receiver would not become the tenant, so as to render him personally liable for the rent or for the performance of other covenants in the lease, without taking possession of the premises, or doing some other act signifying his election to accept the term as a part of the property of the judgment debtor.

The situation of the receiver in this case is analogous to that of an executor ; who cannot be charged as the assignee of the lease if he waives the term, the income of which is not sufficient to pay the rent, although the estate of the testator may be liable for the rent in the due course of administration, if the landlord refuses to re-enter, (Went. Off. of Ex. 245. 2 Will. Ex. 1079. Per Macdonald, C. B. 3 Anst. Rep. 909.) Such, also, is the law in relation to the assignee of a bankrupt.

If the assignee elects to waive the term, and neither enters upon the demised premises nor does any other act signifying his acceptance of the term as assignee, he is not liable for the rent ¿ and the lessor must come in as a general creditor of the bankrupt’s estate, or may sue the bankrupt for the rent subsequently accrued. (Bourdillon v. Dalton, 1 Peake’s N. P. C. 238. Wheeler v. Beamah, 3 Camp. Rep. 340. Copeland v. Stephens, 1 Barn. & Aid.

Rep. 593.) But if the assignee enters upon the demised premises, or does any other act which is equivalent, to signify his assent to accept the term as the assignee of the lease, he will become the tenant of the premises and render himself liable for the rent. (Thomas v. Pemberton, 7 Taunt. 206. Clark v. Hume, 1 Ryan Moody’s Rep. 207. Hanson v. Stevenson, 1 Barn, & Ald. Rep. 303.) In the present case the receiver had done no act indieating his acceptance of the term, even if it was embraced in the general assignment of the property and effects of the judgment debtor.

The landlord therefore had no claim to follow the goods which belonged to the receiver, as such, and were not the goods of the tenant, at the time of their removal. It follows from this view of the case that the decision of the vice chancellor which is appealed from was right. And it must be affirmed, with costs.