Page:Harvard Law Review Volume 5.djvu/203

JUDICIAL LEGISLATION. 1 87 hundred years later, the defendant in distraining upon his tenant, a public manufacturer and seller of salt, seized the plaintiff's boat, which was lying in a canal on the premises waiting to be loaded. It was usual for the tenant's customers to send their own boats in this way. In regard to the defendant's right to seize this boat the Court of Exchequer was divided. Parke, B., made an elabo- rate review of the cases, beginning in the time of Edward IV., which illustrated Willes's rule about things " delivered in the way of trade," and came to the conclusion that these rested on the principle of public welfare that trade must not be unduly re- stricted. The " principle of the rule of exemption " covered all goods placed in a trader's hands to give the owner the full benefit of the trade as it was actually carried on. He therefore held these goods to be privileged, thinking it " contrary to the estab- lished mode of judicial decision to include one class of goods which fall within the mischief, and exclude another, merely because the case had not risen." But the majority of the court, and the Exchequer Chamber on appeal, held otherwise. Prima facie, they said, the goods were liable to distress, such being the general rule. To exempt them they must be brought within some recognized class of exceptions ; and in the class then under discussion every recorded case related to a trade which actually consisted in dealing with other men's goods. The privilege would therefore be carried too far by Baron Parke's principle, and this boat, not being delivered to the tenant to be itself worked on, fell within the rule, not within the exceptions. Having thus inter- preted the cases, the court declined to consider whether Baron Parke's view was more expedient. Lord Abinger professed a reluctance to trust his own judgment on that subject as a basis for making rules or engrafting exceptions. Public convenience might some day require that all goods should be privileged from distress, just as a German author had suggested settling the Irish question by holding every tenant to have an absolute right to the land. Cases perfectly new, he said, to which the law furnished no analogy, must, "by the law of England, and indeed of all coun- tries," be " determined as they arise, by the good sense of the judges." But this had no application to the present case, which must be governed by the rules and principles of the existing law. The last stage in the gradual stiffening which this rule has undergone may be seen in Clarke v. Milwall Dock Co. 1 No 1 17 Q. B. D. 494.