WE were considering at the conclusion of the last Lecture the landlord's remedies in case of the non-payment of his rent, and had arrived at that by way of Distress. Of the six points into which I distributed that part of the subject, the time had allowed me to dispose of two only. I had *considered what [*158] the things are which the landlord is entitled to distrain, and had stated the general rule that all chattels found on the demised premises are distrainable, the exceptions from this rule and the additions to

it. I had stated also where he is permitted to distrain, generally speaking on the demised premises, and I had mentioned the cases in which that rule also is enlarged, and, on what particular occasions he is permitted to exercise his right of distress elsewhere-the questions which remain are: WHEN the distress is to be made. How it is to be made. WHAT is to be done with it. And lastly, What are the tenant's remedies in case of illegal or irregular proceedings.

Now, with regard to the question, When the distress is to be made. It must of course, not be made until the rent has become due, and, as I have stated in a former Lecture, that (except for one purpose, which I then specified, that, namely, of making a demand to create, or a tender to prevent forfeiture) rent does not become due till the last minute of the day on which it is by the lease made payable,' it follows, of course, that there can be no distress until the next day."(a) It sometimes indeed happens that by the special agreement of the parties to the lease, the rent is made pay⚫able before the time for which it is to be paid has elapsed, and, as there is no objection *in point of law to such an agreement, the rent would, in such case, be distrainable for as soon as the time so specially fixed had elapsed, but this you will at once perceive, is not a contravention of the general principle, but a carrying out of it, for the rent is not, in such cases, distrained for before the time of payment has elapsed, although, in consequence of special terms inserted in the lease, the time of payment is accelerated,

1 Ante, p. 125.

[*159]

2 See Co. Litt. 47 b, note 6; Duppa v. Mayo, 1 Wms. Saund. 282; and the notes to Poole v. Longueville, 2 ib. 284 b.

(a) McKinney v. Reeder, 6 Watts. 41.

and made to occur earlier than in ordinary cases.3 Sometimes too it happens, especially as I have heard in the Eastern Counties of England, that, by a local custom, the rent is payable as soon as the half year begins, which custom would, in the absence of terms incompatible with it, be incorporated into the lease, and give the landlord a right to distrain immediately. You will find this in Buckley v. Taylor, 2 T. R. 600.*

With regard to the time of making the distress, it is further to be observed, that it must be between sunrise and sunset. The law relative to distresses, except such part of it as owes its origin to statute, is all very ancient; and the reason given for this rule by the old books certainly savors of antiquity. It is, that the tenant may be able to see the landlord or his bailiff coming, so as to prevent the necessity of the distress by a tender. A better *reason might (one [*160] would suppose) be found in the inconvenience and disturbance to families which would arise from allowing a proceeding of some violence to take place during the hours devoted to repose, an inconvenience from which I think the law has done wisely in exempting them. It must further be observed, with regard to the time of making the distress, that, at common law, it could not have been made after the expiration of the lease (1 Inst. 47 b), but by stat. 8 Anne, c. 14, s. 6, it has been been provided that a landlord may distrain within six months after the termination of the lease, provided his own title continues, and the same

3 See Lee . Smith, 9 Exch. 662. It has been held, in Ireland, that the general form of avowry given by the 11 Geo. 2, c. 19, s. 22, may be used although the rent is payable in advance. Charters v. Sherrock, Alcock & Napier, 17, 506.

4 See Bac. Ab. Distress (C).

5 Gilbert on Dist. 50; Co. Litt. 142 a; 7 Rep. 7 a; and Aldenburgh . Peaple, 6 C. & P. 212, (25 E. C. L. R. 399,).

4

Upon the con

tenant still continues in possession. struction of this statute, it has been held that, if a landlord allow the tenant to retain part only of the property demised, after the expiration of the lease, he may distrain on that part, Nuttall v. Staunton, 4 B. & C. 51, (10 E. C. L. R. 477,); and it was held in Braithwaite v. Cooksey, 1 H. Bl. 465, that where the original tenant died, and his representative entered, the land

lord might distrain within six months upon [*161] that representative."(a)

It is provided by ss. 6 & 7 of the 8 Anne, c. 14, that it shall "be lawful for any person or persons having any rent in arrear or due upon any lease for life or lives, or for years, or at will, ended or determined, to distrain for such arrears after the determination of the said respective leases, in the same manner as they might have done if such lease or leases had not been ended or determined; provided that such distress be made within the space of six calendar months after the determination of such lease, and during the continuance of such landlords' title or interest, and during the possession of the tenant from whom such arrears became due.

7 Where the possession is continued beyond the expiration of the term under a custom of the country, as, for instance, where the tenant has a customary right to leave his way-going crop in the barns for a certain time after the lease has expired, the landlord may distrain, although six months have elapsed since the expiration of the lease. Beavan v. Delahay, 1 H. Bl. 5; Griffiths v. Puleston, 13 M. & W. 358.* Where a tenant remained on the premises a few days after the expiration of the term, and after the new tenant had entered, and then went away leaving some cattle on the premises, it was held that there was no continuance of the possession after the

(a) The common law upon the subject of distresses for rent has been adopted very generally in the United States, and the legislatures of the different States have, with more or less conformity, adopted the amendments which have been from time to time engrafted on the law by the Parliament of Great Britain. In Pennsylvania and New York, for instance, the provisions of 8 Anne and 11 George 2, have been re-enacted with some variations. The Pennsylvania Act

The utility of this statute of Queen Anne is obvious when it is considered that, before it was passed, if rent had been reserved payable, say at Lady-day and at

tenant had himself left. Taylorson v. Peters, 7 A & E. 110, (34 E. E. C. L. R. 45,). It has been held at Nisi Prius that this statute does not apply where a tenancy is put an end to by the tenant's wrongful disclaimer, but only where it is determined by lapse of time, or perhaps by notice to quit. Doe d. David v. Williams, 7 C. & P. 322, (32 E. C. L. R. 635,). An avowry for rent arrear, which is framed at common law and not under this statute, must allege that the tenancy was continuing at the time when the distress was made. Williams v. Stiven, 9 Q. B, 14, (58 E. C. L. R. 14,).

of 21st March, 1772, § 14, follows the provisions of the statute of Anne as to the right of distress after the expiration of the lease, provided such distress be made during the lessor's title or interest; but it omits the provision that the distress be made within six months after the determination of the lease; and it omits the last words during the possession of the tenant from whom such arrears are due. With respect to these last words, Judge Huston says in Clifford v. Beems, "perhaps the omission of them may not be found to affect the meaning of the provision;" referring probably to the fact, that unless where statuary exceptions existed, the distress could only be made upon the premises. Clifford v. Beems, 3 Watts, 246; Bukup v. Valentine, 19 Wend. 554; Rogers v. Brown, 1 Spears, 283; Lougee v. Colton, 2 B. Munroe, 115. If the goods are sold in good faith to an innocent purchaser, although such purchaser be the succeeding tenant, and the goods yet remain upon the premises, they cannot be distrained. Clifford v. Beems, 3 Watts, 246. See Bell v. Potter, 6 Hill, 497; Weber v. Shearman, 3 Hill, 547, and 6 Hill, 20. In North Carolina and Missouri the right of distress for rent is not known. Dalgleish v. Grandy, C. & N. 22; Crocker v. Mann, 3 Mis. 472.

As a general rule to authorize a distress for rent in the United States there must be a certain rent, or a rent which can be reduced to a certainty, reserved. Wells v. Hornish, 3 Penn. R. 30; Steel v. Thomson, ib. 34; Scott v. Fuller, ib. 55; Jacks v. Smith, 1 Bay, 315; Roberts v. Tennell, 4 J. J. Marshall, 160; Benoist v. Sollee, 1 Brevard, 251; Reeves v. McKenzie, 1 Bailey, 497; Valentine v. Jackson, 9 Wend. 302, where it was held that if a rent certain be reserved, subject to a