Michaelmas, the landlord would have lost his remedy by distress for his last half-year's rent; for he could not have distrained for it before it was due, and it would not have become due till the last moment of Michaelmas-day, and then the term would have been at an end.8

Therefore, as Lord Coke says, it was usual in his day to reserve the last quarter's rent in advance. Co. Litt. 47 b. Before leaving this subject it may be useful to call attention to some of the cases, which show when a landlord may distrain in the sense of-under what circumstances he may exercise this right. It is a general rule, that no distress can be made for rent, unless there is an actual demise at a fixed rent. See Hegan v. Johnson, 2 Taunt. 148; Dunk v.

condition to be performed by the tenant, the landlord may distrain notwithstanding the condition, unless the tenant shows a performance.

When the rent is reserved in iron or grain, or any other commodity, it may be distrained for, provided it is capable of being reduced to a certainty. Thus where the rent of a mill was expressed to be "onethird of the toll which the mill grinds." The Supreme Court of Pennsylvania held the rent might be distrained for, Judge Rogers, in pronouncing the opinion of the Court, said, "If the tenant keeps an account of the toll, which it is his duty to do, the rent may be reduced to the utmost certainty. Nor can we perceive the danger which may arise to the tenant, for his rights are abundantly protected. By an offer to comply with his contract, with which he is best acquainted, he can defeat the landlord. And for an excessive distress the law, as in other cases, has provided him an ample remedy." Fry v. Jones, 2 Rawle, 12; Jones e. Gundrim, 3 W. & S. 531; Rinehart v. Olwine, 5 W. & S. 163; Smith v. Colson, 10 Johns. 91. Contra Clark v. Fraley, 3 Blackf. 264; Bowzer v. Scott, 8 Blackf. 86.

New York, in 1846, abolished the distress for rent, and it has been held that distress for rent is not an essential part of the contract between landlord and tenant; that it was merely a remedy which the legislature might alter or abolish without such act being liable to any constitutional objection. Guild v. Rogers, 8 Barb. Sup. Court, 502.

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*Next, with regard to the mode of making the distress. The landlord may either distrain in

Hunter, 5 B. & A. 322, (7 E. C. L. R. 115,); Knight v. Benett, 3 Bing. 361, (11 E. C. L. R. 181,); Regnart v. Porter, 7 Bing. 451, (20 E. C. L. R. 204,); Risely v. Ryle, 11 M. & W. 16;* and Wat son v. Waud, 8 Exch. 335. But a landlord may distrain on a tenancy at will if a yearly rent is reserved, Litt. s. 72; and a rent is sufficiently certain which may be reduced to certainty by computaSee Daniel v. Gracie, 6 Q. B. 145, (51 E. C. L. R. 145,); and Doe d. Edney v. Benham, 7 Q. B. 976, (53 E. C. L. R. 976,); cited ante, pp. 88-95, notes. The right to distrain may also exist by express agreement between the parties, although the subjectmatter in respect of which this power is reserved may not be strictly a rent; therefore, where by a contract between a landlord and a tenant, it was stipulated that a penalty should be paid for every yard of hay which was not spent upon the land, and that it should be recoverable by distress as for rent in arrear, it was held that it might be so recovered; but that as it was not a rent, the landlord could not avow for it in the general form which is given by the 11 Geo. 2, c. 19. Pollitt v. Forrest, 11 Q. B. 949, (63 E. C. L. R. 949,). Another general rule is, that a landlord who has no reversion cannot distrain; therefore if a lessee for years assigns his term, reserving a rent, he cannot distrain at common law, nor under the 4 Gen. 2, c. 28, s. 5, for a rent-seck cannot, it is said, issue out of a term of years. See Newcomb v. Harvey, Carth. 161; v. Cooper, 2 Wils. 375; Smith v. Mapleback, 1 T. R. 441; Preece v. Corrie, 5 Bing, 24, (15 E. C. L. R. 453,); and Pollock v. Stacy, 9 Q. B. 1033, (58 E. C. L. R. 1033,). It does not, however, appear to be quite clear that a rent-seck cannot issue out of a term of years, for the passage in the Year Book of 45 Edw. 3, which is cited incorrectly in v. Cooper, and correctly in Bro. Ab. Dette, pl. 39, as the authority for this position, has a quære added to it; and see also Co. Litt. 147 b. A tenant from year to year, who underlets from year to year, has however a sufficient reversion to distrain. Curtis v. Wheeler, 1 Moo. & M. 493, (22 E. C. L. R. 572,). With respect to the limitation in point of time on the right to distrain, only six years' arrears of rent are recoverable by distress, 3 & 4 Wm. 4, c. 27, s. 42. But the power to distrain for this limited amount does not appear to be

*person, or, as is now the practice, by an authorized agent or bailiff. The authority is

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lost by reason of the mere non-payment of the rent for any time short of the period after which the right to recover the land itself is gone. Where the right to the land is at an end, as there is no longer any tenancy or any reversion, the right of distress ceases also. Where the land continues to be held under a lease in writing, and the rent is simply withheld, the non-payment of it for any number of years will not affect the interest of the landlord or his representatives in the land itself. Doe d. Davy v. Oxenham, 7 M. & W. 131;* and Sugden's Essay on the Real Property Statutes, c. I. s. III. But where there is no lease in writing, the right to recover the land is lost so soon as twenty years have elapsed from the time at which the right of action in this respect has accrued to the landlord, or to any person through whom he claims; and this time, when the receipt of rent has been discontinued, is the last time at which the rent was received. See the 3 & 4 Wm. 4, c. 27, ss. 2, 3, & 8. By s. 2 of this act, it is provided that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the right of entry, distress or action has first accrued. But this section has been held not to apply to rents reserved on a demise, but to be confined to rents existing as an inheritance distinct from the land, and for which, before this act, the party entitled to them might have had an assize. See Paget v. Foley, 2 Bing. N. C. 679, (29 E. C. L. R. 714,); Grant v. Ellis, 9 M. & W. 113 ;* Doe d. Angell v. Angell, 9 Q. B. 328, (58 E. C. L. R. 328,); The Dean of Ely v. Cash, 15 M. & W. 617;* and Owen v. De Beauvoir, 16 M. & W. 547 ;* S. C. 5 Exch. 166. The only way, therefore, in which it can affect the right of making a distress, is by its operation in destroying the right to recover the land itself after the period of limitation which it mentions. By an act passed in the same session, the 3 & 4 Wm. 4, c. 42, s. 3, a limitation of twenty years is imposed on actions of debt for rent upon an indenture of demise, but this statute does not mention distresses. See as to the construction of these acts, the cases last cited, the notes to Nepean v. Doe, 2 Smith's L. C. 396; and Humfrey v. Gery, 7 C. B. 567, (62 E. C. L. R. 567,). There is another general rule limiting the right of a landlord to distrain: namely, that after a distress for rent has once been made, no

[*164] usually given by *an instrument called a war

second distress will be valid for the same rent where enough might have been taken under the first distress, or where if enough has been taken under it, the distress has been afterwards voluntarily abandoned. See Dawson v. Cropp, 1 C. B. 961, (50 E. C. L. R. 961,). This rule is illustrated, and the limitations on it are explained in Bagge, app., v. Mawby, resp., 8 Exch. 641. In this case a landlord distrained upon the goods of a tenant, who had previously committed an act of bankruptcy. Before any sale took place he withdrew the distress without obtaining payment of the rent, owing to a notice from one of the creditors of the tenant that he was taking proceedings in bankruptcy against him; but at that time no assignee had been appointed. The landlord afterwards distrained a second time for the same rent. The Court held that as he had abandoned the first distress on account of a mere threat, which he ought to have disregarded, and without any sufficient excuse, the second distress was illegal. "There is nothing more clear," said Baron Parke, in delivering judgment, "than this, that a person cannot distrain twice for the same rent, for if he has had an opportunity of levying the amount of the first distress, it is vexatious in him to levy the second, unless there be some legal ground for his adopting such a course. . If there has been some mistake as to the value of the goods, and the landlord fairly supposed the distress to be of the proper value at the time of levying the first distress, and he afterwards finds it to be insufficient, he may then distrain for the remainder; or, if the tenant has done anything equivalent to saying, Forbear to distrain now, and postpone your distress to some other time;' in such cases, the landlord may distrain a second time. But if there is a fair opportunity, and there is no lawful or legal cause why he should not work out the payment of the rent by reason of the first distress, his duty is to work it out by the first distress, and he cannot distrain again. The principle upon which, as a general rule, a landlord cannot distrain twice is, that he must not vex his tenant by the exercise, upon two occasions, of this summary remedy." Finally, it must be observed that the discharge of the tenant under the bankrupt acts does not take away the right to distrain. Briggs v. Sowry, 8 M. & W. 729;* Newton v. Scott, 9 M. & W. 434;* S. C. 10 M. & W. 471. Nor is it any objection to a distress that after the rent became

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rant of distress." (a) But whether the landlord or the bailiff distrain, *care must be taken that the outer door be open at the time of making the distress, if it be made in a dwelling-house, for this is one of the cases in which the maxims holds, that

due, the tenant petitioned the Insolvent Court, inserted the rent in his schedule, and was opposed in respect of it by the landlord, but obtained his discharge. Phillips v. Shervill, 6 Q. B. 944, (51 E. C. L. R. 944,).

9 The warrant of distress does not require a stamp. Pyle v. Partridge, 16 M. & W. 20.* It should be signed by the landlord, but the signature of one joint tenant is sufficient if the others do not dissent. Robinson v. Hoffman, 4 Bing. 562, (13 E. C. L. R. 637,). A warrant which directs the bailiff to distrain one sum composed of several rates, is wholly bad, if one of the rates is illegal. Milward v. Caffin, 2 W. Bl. 1330; Sibbald v. Roderick, 11 A. & E. 38, (39 E. C. L. R. 21,). But it is otherwise, if the amount claimed in respect of both demands is mentioned, and the legal part can be distinguished from the illegal. Skingley v. Surridge, 11 M. & W. 503; see also Clark v. Woods, 2 Exch. 394. A subsequent ratification by the landlord of the bailiff's authority is as effectual as a previous command. Bro. Ab. Traverse per sans ceo. pl. 3. Where a landlord gives a warrant to distrain, he impliedly authorizes the bailiff to receive the rent if tendered. Hatch v. Hale, 15 Q. B. 10, (69 E. C. L. R. 10,). A distress may be made for one rent, and the landlord may avow for another. See Fitz. Ab. Avowrie, pl. 232; the judgment of Lord Kenyon in Crowther v. Ramsbottom, 7 R. 657, and the judgment of Baron (then Mr. Justice) Parke in Lucas v. Nockells, 10 Bing. 172, (25 E. C. L. R. 87,). And if a person having authority to distrain for rent due to another, says, at the time, that he distrains for rent due to himself, he may, nevertheless, justify as the bailiff of the person to whom the rent is really due. Trent v. Hunt, 9 Exch. 14.

(a) In Pennsylvania the warrant need not be in writing. Jones v. Gundrim, 3 W. & S. 531; Fremciscus v. Reigart, 4 Watts. 98; aliter in Georgia and formerly in New York. Bigelow v. Judson, 19 Wend. 229.