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Among those things which are privileged from distress, conditionally, may be numbered,-1. Beasts of the plough, which are exempt, if there be a sufficient distress besides on the land whence the rent issues (7). 2. Implements of trade, as a stocking framea, or a loomb, if they are in actual use, and there is sufficient distress besides. So where a threshing machine, was not in use, and there was not any evidence of other goods being on the premises, it was holden, that the threshing machine was not privileged from distress.

3. Other things in actual use, as a horse whereon a person is ridinge, or an axe in the hands of a person cutting wood, &c. These two last instances of exemption proceed on this ground, that if in such cases a power of distress were given by law, the exercise of it would frequently lead to a breach of the peace. With respect to those things which may be distrained damage feasant, it may be laid down as a general

z 1 Inst. 47 a. b, 161. a.

a Simpson v. Hartopp, Willes, 512. Watts v. Davies, Scacc. H. 20. G. 3 MS. S. P.

b Gorton v. Falkner, 4 T. R. 565.

c Roberts v. Jackson, Peake's additional cases, p. 37. Kenyon, C. J.

d Fenton v. Logan, 9 Bingh. 676, 3 M. & Sc. 82. S. C. recognising Wood v. Clarke, 1 Cr. & J. 484.

e 1 Inst. 47. a.

in execution, and for the same reason. 131.

Eaton v. Southby, Willes,

(7) But beasts of the plough may be distrained for the poor rates, although there are other distrainable goods on the premises more than sufficient to answer the value of the demand. Hutchins v. Chambers, 1 Burr. 579. This decision proceeded on the ground, that a seizure under the stat. 43 Eliz. c. 2., and similar acts, resembled a common law distress only in being replevisable: and that it was in other respects analogous to a common law execution, under which any goods of the debtor may be seized. "The landlord has a right to resort to the subjects of distress which are immediately available to raise the arrears of rent by sale, and is not bound to take those which cannot be productive till a future period. If there are other moveable chattels to the amount of the rent and expenses, besides averia caruia, he would not be justifiable in taking the latter; but if there are not, he has a right to take all, or as many of the beasts of the plough as may be necessary with the other moveable and saleable chattels to satisfy the arrears and charges." Per Parke, B. delivering judgment, Piggott v. Birtles, 1 M. & W. 441.

rule, that all chattels trespassing on the land may be distrained damage feasant. The law, indeed, has extended this principle so far as to permit A. to distrain the cattle of B. damage feasantf; in the close of A., although they were put there by a stranger, without the privity of B. It is to be observed, however, that a horse whereon a man is riding, cannot be distrained damage feasants; for the same exemption is allowed here as in cases of distress for rent arrear, and for the same reason; lest by the permission of such distress a breach of the peace should ensue. By stat. 7 Ann. c. 12. s. 3. it is enacted and declared, that process of distress against the goods of any ambassador, or other public minister of a foreign state, or of their domestic servants shall be void.

IV. Who may distrain.

THE king may reserve a rent out of a franchise or matter incorporeal, as well as out of lands, and may distrain for it on any other lands of the tenant not subject to the rent; but not on such other lands of the tenant as are let out by tenant or extended. And by stat. 22 Car. 2. c. 6. the grantee of a fee-farm rent has the same power of distress as the king hadh

1. By Statute-By stat. 7 H. 8. c. 4. it is enacted", "That the recoverors of manors, lands, and advowsons, their heirs and assigns, may distrain for rents, services, and customs, due and unpaid, and make avowry and justify the same, and have like remedy for recovering them as the recoverees might have done or had, although the recoverors were never seized thereof." By stat. 32 H. 8. c. 37. s. 1. "The personal representatives of tenants in fee, tail, or for life, of rent-services, rent-charges, rent-seck, and fee farms, may distrain for the arrears, upon the land charged with the payment, so long as the lands continue in the seisin or possession of the

f 1 Rol. Abr. 665, 1. 25.

g Storey v. Robinson, 6 T. R. 138. per Denison, J. in Collins v. Renison, Say. R. 139.

h Atty. G. v. Mayor of Coventry, 1 P. Wms. 306.

i See 1 Inst. 104. b.

tenaut in demesne, who ought to have paid the rent or fee farm, or of some person claiming under him by purchase, gift, or descent." This statute provides a remedy where the testator dies seised of a rent to him and his heirs, or for life, and where by his death there was not any remedy for the executor at the common law; hence, executor of tenant for life of a rent-charge may distrain for rent arrear under this statute; but where the executor has remedy by the common law by action of debt, as in the case of an executor of tenant for years of a rent charge, if he lives so long, this statute does not apply. Neither does this statute extend to copyhold rents. By s. 3. "Husbands seized in right of their wives, in fee, tail, or for life, of any rents or fee-farms, may distrain, after the death of their wives, for arrears during their lifetime." And by s. 4. "Tenants pur auter vie, of rents and fee-farms, and their personal representatives, may distrain on the land charged after the death of cestui que vie," for arrears due in the lifetime of cestui que vie. A. seised in fee, let to the plaintiff for twenty-one years, and afterwards dying seised of the reversion, the defendant administered, and distrained for half a year's rent due to the intestate, for which he avowed. On demurrer to the avowry, it was objected, that there was not any privity of estate between the administrator and the lessor, and therefore the avowry, which is in the realty, could not be maintained by him. And it was observed, this was a case out of the stat. of 32 H. 8. c. 37. for that only gives a remedy by way of distress for rents of freehold, and of this opinion the court seemed (8). 1 Inst. 162. a. 4 Rep. 50.

c Hool v. Bell, 1 Ld. Raym. 172. d Turner v. Lee, Cro. Car. 471.

e Appleton v. Doily, Yelv. 135.
f Renvin v. Watkin, M. 5 G. 2 B. R.
MSS.

(8) But in Powell v. Killick, Middlesex Sittings, M. 25 G. 2. where in trespass for entering plaintiff's house, and carrying away his goods, upon not guilty, defendant gave in evidence that he was executor of A., who was plaintiff's landlord of the house, and that he distrained for rent due to his testator at the time of his death; it was objected, for plaintiff, that executor was empowered to distrain only by virtue of the stat. 32 H. 8. c. 37., and that the statute extended to the executors and administrators of those persons only, to whom rent-services, rent-charges, rent-seck, or fee-farms were due, and that the present case did not fall within either of those descriptions. But Lee, C. J. overruled the objection, and said, this was a rent service, the testator being in his life-time seised in fee, and the plaintiff holding under a tenure which implied fealty. Serj. Hill's MSS. 14 D. 72. and Bull. N. P. 57 S. C. See further on this

years

Cro. Car. 471. Latch. 211. Wade v. Marsh were cited. In Prescott v. Boucher, 3 B. & Ad. 849. this point was again. raised, and after time taken to consider, it was holden, that a person who was seised in fee of land and demised it for a term of years, reserving a rent, though he be not tenant for of the rent, is still not within the meaning or words of this statute, "tenant in fee simple, fee tail, or for term of lives of the rent," and is indeed not tenant at all of the rent; and consequently that his executor cannot distrain for arrears of rent accrued in the testator's lifetime. But this question is now set at rest; for by stat. 3 & 4 W. 4. c. 42. s. 37. it shall be lawful for the executors or administrators of any lessor or landlord to distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime. And by s. 38. such arrearages may be distrained for after the end of such term or lease at will, in the same manner as if such term or lease had not been ended; provided that such distress be made within the space of six calendar months after the determination of such term or lease, and during the continuance of the possession of the tenant from whom such arrears became due. Provided also, that all the powers and provisions in the several statutes made relating to distresses for rent shall be applicable to the distresses so made." One entitled to the separate herbage and feeding of a close 5, for a certain time, may distrain cattle belonging to the owner of the close, damage feasant there during that time. If a terre-tenant, holding under two tenants in common, pay the whole rent to one, after notice from the other not to pay it, the tenant in common who gave the notice may distrain for his share. One tenant in common may take a distress without his companions, and avow solelyi. Grant of rent to testator for years, with a clause of distress, that the grantee and his heir may distrain. Adjudged, that the executor should distrain and not the heir.

A mortgagee after giving notice of the mortgage to the tenant in possession, is entitled to such rent as shall be in

g Burt v. Moore, 5 T. R. 329.
h Harrison v. Barnby, 5 T. R. 246.

i Cro. Eliz. 530.

k Darrel v. Wilson, Cro. Eliz. 644.

subject, Meriton v. Gilbee, 8 Taunt. 159, 2 Moore, 48. S. C. and Martin v. Burton, 1 B. and B. 279, 3 Moore, 608. S. C. Staniford v. Sinclair, 2 Bingh. 193. and the remarks of Tenterden, C. J. on Powell y. Killick, in Prescott v. Boucher, 3 B. & Ad. 862.

arrear at the time of notice, and to the rent which accrues afterwards, and may distrain for the same after such notice; whether the lease, under which the tenant holds, be before1, or as it seems now, after m the mortgage.

If by a custom the lord is precluded from turning cattle on the common during a certain season of the year, a commoner may distrain the lord's cattle which are turned on during that time. Wherever there is a colour of right for turning cattle on a common, a commoner cannot distrain, because it would be judging for himself in a cause which depends on a more competent inquiry. Hence, where the right of common was for two sheep for every acre of land in the possession of each commoner, it was holden, that one commoner could not distrain the sheep of another for a surcharge (9). The general rule, however, that one commoner cannot distrain the cattle of another, may be superseded by a special agreement P; as, where A., being possessed of a quantity of land in a common field, and having a right of common over the whole field, and B. having a right of common over the whole field, they entered into an agreement, for their mutual advantage and convenience, not to exercise their respective rights for a certain term of years, and each party covenanted to that effect. During the term the cattle of B. came upon the land of A.; it was holden, that A. might distrain them damage feasant; for, by the operation of the agreement, B. stood in the situation of a stranger with regard to A. A tenant holding over after the expiration of his term, cannot distrain the landlord's cattle, which were put on the land by the landlord for the purpose of taking possession'. Lessee for years assigns his term, reserving a rent, he cannot distrain for such rent arrear at common laws; because he has not any reversion; nor can he distrain for it under stat. 4 Geo. 2. c. 28. s. 5, as a rent-seck; because a rent-seck can

Moss v. Gallimore, Doug. 279. m Pope v. Biggs, 9 B. and C. 245. n 1 Roll. Abr. 405, 406. (A.) pl. 6.

o Hall v. Harding, 4 Burr. 2426.

p Whiteman v. King, 2 H. Bl. 4.

r Taunton v. Costar, 7 T. R. 431. re-
cognized by Bayley, J. in Butcher v.
Butcher, 7 B. and C. 402.
v. Cooper, 2 Wils. 375.

(9) But where cattle are turned on the common without any colour or pretence of right, a commoner may distrain them. Admitted in Hall v. Harding, 4 Burr. 2426. It was said by Bathurst, J. and not denied by the rest of the court, that if a man who has a right of common upon the lord's waste, for cattle levant and couchant on his land, surcharge the common, the lord cannot for that cause distrain, for the lord cannot judge thereof. Anon. 3 Wils. 126.

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