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beasts should escape before they are taken.(a) Anú, when a person intends in make a distress, he must, by himself or his bailiff
, enter on the demised promises; formerly during the continuance of the lease, but now,6) if the tenant holds over, the landlord may distrain within six months after the determination of the lease; provided his own title or interest, as well as the tenant's possession, continue at tho time of the distress.20 If the lessor does not find ufficient distress on the premises, formerly he could resort nowhere else; and herefore tenants who were knavish made a practice to convey away their goods and stocks fraudulently from the house or lands demised, in order to cheat their landlords. But now(©) the landlord may distrain any goods of his tenant carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bona fide sold for valuable consideration; and all persons privy to or assisting in such fraudulent conveyance forfeit double the value to the landlord. The landlord may also distrain the beasts of his tenant feeding upon any commons or wastes appendant or appurtenant to the demised premises." The landlord might not formerly break open a house to make a distress;
for that is a breach of the peace. But when he was in the house, it held that he might break open an inner door;(d) and now(e) he may, by the assistance of the peace-officer of the parish, break open in the daytime any place whither the goods have been fraudulently removed and locked up to prevent a distress; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein.
Where a man is entitled to distrain for an entire duty, he ought to distrain for the whole at once, and not for part at one time and part at another. (j)* But if he distrains for the whole, and there is not sufficient on the premises, or he happens *to mistake in the value of the thing distrained, and so takes an insufficient distress, he may take a second distress to complete his
() Stat. 11 Geo. II. c. 19.
(9) Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 1 Burr. 590.
(R) Co. Litt. 142
(1) 2 Lutw. 1532.
(d) Co. Litt. 161. Comberb. 17.
contrary. Gilb. Dist. 56, &c. Hargrave's Co. Litt. 47, b. n. 6. The distress must not be made after tender of payment of the entire rent due. According to 8 Co. 147, a., Gilb. Dist. by Hunt, 76, &c., 3 Stark. 171, 1 Taunt. 261, tender upon the land before the distress makes the distress tortious; tender after the distress, and before the impounding, makes the detainer, and not the taking, wrongful; tender after impounding makes neither the one nor the other wrongful; but in the case of a distress for rent, upon the equity of the 2 W. and M. c. 5, a sale of the distress after tender of the rent and costs would be illegal.—Chitty.
** Although this proviso is in terms confined to the possession of the tenant, yet it has been holden that where the tenant dies before the term expires, and his personal representative continues in possession during the remainder and after the expiration of the term, the landlord may distrain within six calendar months after the end of the term for rent due for the whole term. 1 H. Bla. 465. And in 1 H. Bla. 7, n. a. it was holden that the term was continued by the custom of the country for the purpose of giving a right to the landlord to distrain on the premises in which the waygoing crop remained. See 1 Selw. N. P. 6 ed. 681.-Cutty.
* See 11 Geo. II. c. 19, sects. 1, 2, 3. The act is remedial, not penal. 9 Price, 30. It applies to the goods of the tenant only which are fraudulently removed, and not those of a stranger. 5 M. & S. 38. And the rent must be in arrear at the time of the removal. 1 Saund. 284, a. 3 Esp. 15. 2 Saund. 2. n. b; sed vid. 4 Camp. 136.—Chitty.
* If the lord come to distrain cattle which he sees within his fee, and the tenant, or any person, to prevent the lord from distraining, drive the cattle out of the lord's fee into some other place, yet he may pursue and take the cattle. Co. Litt. 161, a. But this rule does not hold to distresses damage-feasant, which must be made on the land. Id.-Chitty.
* It may be as well here to observe that if a landlord come into a house and seize ‘upon some goods as a distress, in the name of all the goods of the house, that will be a good seizure of all. 6 Mod. 215. 9 Vin. Abr. 127. But a fresh distress may be made on the same goods which have been replevied, for subsequent arrears of rent. 1 Taunt. 218. So, if the cattle distrained die in the pound, the loss will fall on the party distrained on, and not upon the distrainor. Burr. 1738. 1 Salk. 248 11 East, 54. -Chitty. *13]
Distresses must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. III. c. 4, if any man takes a great or unreasonable distress for rent arrere, he shall be heavily amerced for the same. As if(h) the landlord distrains two oxen for twelve pence rent; the taking of both is an unreasonable distress; but if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, it is said that no distress can be excessive.(i) For, as these distresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge; for an action of trespass is not maintainable upon this account, it being no injury at the common law.(j)
When the distress is thus taken, the next consideration is the disposal of it. For which purpose the things distrained must in the first place be carried to some pound, and there impounded by the taker. But in their way thither they may be rescued by the owner, in case the distress was taken without cause or contrary to law: as if no rent be due, if they were taken upon the highway, or the like; in these cases the tenant may lawfully make rescue.(k) But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law.)
A pound (parcus, which signifies any enclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 P. and M. c. 12, no distress of cattle can be driven out of the hundred where it is taken,
*unless to a pound-overt within the same shire, and within three miles of
the place where it was taken. This is for the benefit of the tenants, that they may know where to find and replevy the distress. And by statute 11 Geo. II. c. 19, which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises upon which a distress is taken into a pound, pro hac vice, for securing of such distress. If a live distress of animals be impounded in a common pound-overt, the owner must take notice of it at his peril, but if in any special pound-overt, so constituted for this particular
purpose, the distrainor must give notice to the owner: and in both these cases the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they are put in a pound-covert, in a stable, or the like, the landlord or distrainor must feed and sustain them.(m) A distress of household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert; else the distrainor must answer for the consequences.
When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction, and upon this account it hath been held(n) that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded till the owner makes satisfaction, or contests the right of
(9) Co. Litt. 47.
(*) Co. Litt. 160, 161. 24 And see 2 Stra. 851. 3 Leon. 48. See exceptions, 1 Burr. 582. 1 H. Bla. 13. 9 East, 298. It is no bar to this action that, between the distress and sale of the goods dis trained, the parties came to an arrangement respecting the sale, (1 Bing. 401. 4 D. & R. 539. 2 B. & C. 821, S. C.;) and the action is sustainable though there was a tender of the rent before the distress was made. 2 D. & R. 250. Where more rent is distrained for than is due, the remedy is at common law, and is not founded on the 52 Hen. III. Co 4, nor on the 2 W. and M. c. 5, 8. 5. Stra. 151. Where no rent is due, the owner of tho goods distrained may, in an action of trespass on the case, recover double the value of the goods and full costs. 2 W. and M. sess. 1, c. 5, 8. 5.-Cutty.
25 The distrainor cannot tie up cattle impounded; and if he tie a beast and it is strangled, he will be liable in damages. 1 Salk. 248. If the distress be lost by act of jod, as by death, the distrainor may distrain again. 11 East, 51. Burr. 1738.-Chitty.
(*) 2 Inst. 107.
(*) Co. Litt. 47.
distraining by replevying the chattels. To replevy (replegiare, that is, to ake back the pledge) is when a person distrained upon applies to the sheriff or his officers, and has the distress returned into his own possession, upon giving good security to try the right of taking it in a suit of law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, of which more will be said hereafter. At present I shall only observe that, as a distress is at common *law only in nature of a security for the rent or damages done, a replevin answers
[*14 the same end to the distrainor as the distress itself, since the party replevying gives security to return the distress if the right be determined against him.
This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always salable at common law.(0) And for an amercement imposed at a court-leet, the lord may also sell the distress :(p) partly because, being the king's court of record, its process partakes of the royal prerogative;() but principally because it is in the nature of an execution to levy a legal debt. And so, in the several statutedistresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And in like manner, by several acts of parliament,(r) in all cases of distress for rent, if the tenant or owner do not, within tive days after the distress is taken,6 and notice of the cause thereof given him, replery the same with sufficient security, the distrainor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges; rendering the overplus, if any, to the owner himself. And by this means a full and entire satisfaction may now be had for rent in arrere by the mere act of the party himself, viz., by distress, the remedy given at: common law; and sale consequent thereon, which is added by act of parliament.
Before I quit this article, I must observe, that the many particulars which attend the taking of a distress used formerly to make it å hazardous kind of proceeding : for if any *one irregularity was committed it vitiated the
[*15 whole and made the distrainors trespassers ab initio.($) But now, by the statute 11 Geo. II. c. 19, it is provided, that for any unlawful act done the whole shall not be unlawful, or the parties trespassers ab initio : but that the party grieved shall only have an action for the real damage sustained, and not even that if tender of amends is made before any action is brought.
VI. The seizing of heriots, when due on the death of a tenant, is also another species of self-remedy, not much unlike that of taking cattle or goods in distress. As for that division of heriots which is called heriot-service, and is only a species of rent, the lord may distrain for this as well as seize; but for heriot-custom (which Sir Edward Coke says(t) lies only in prender, and not in () Bro. Abr. tit. distress, 71.
(-) 2 W. and M. c. 5. 8 Anne, c. 14. 4 Geo. II. c. 28. 11
(7) 8 Rep. 41.
Geo. II. c. 19.
1 Ventr. 37.
8 Cop. & 25.
A reasonable time after the expiration of the five days is allowed to the landlord for appraising and selling the goods. 4 B. & A. 208; sed vid. 1 H. Bla. 15. The five days are reckoned inclusive of the day of sale; as if the goods are distrained on the first, they must not be sold before the sixth. 1 H. Bla. 13. An action lies on the equity of this act for selling within the five days. Semb. id. If the distrainor continue in possession more than a reasonable time beyond the five days, an action of case or trespass lies on the equity of the statute. 11 East, 395. Stra. 717. 4 B. & A. 208. 1 B. & C. 145. Though the act authorizes a sale after the five days, it does not take away the right to replevy after the five days in case the distress is not sold; but it would be otherwise after a sale. 5 Taunt. 451. 1 Marsh: 135. By the consent of the tenant, the landlord may continue in possession longer than the five days without incurring any liability; and his so continuing in possession will not of itself create any presumption of collusion between him and the tenant to defeat an execution. 7 Price, 690.—Chitty.
render) the lord may seize the identical thing itself, but cannot distrain any other chattel for it.(u) The like speedy and effectual remedy of seizing is given with regard to many things that are said to lie in franchise; as waifs, wrecks, estrays, deodands, and the like; all which the person entitled thereto may seize without the formal process of a suit or action. Not that they are debarred of this remedy by action; but have also the other and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature as might be out of the reach of the law before any action could be brought.
These are the several species of remedies which may be had by the mere act of the party injured. I shall next briefly mention such as arise from the joint uct of all the parties together. And these are only two, accord and arbitration.
I. Accord is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar of all actions upon this account.
As if a man contract *to build a house or deliver a horse, and fail in it; *16]
this is an injury for which the sufferer may have his remedy by action; but if the party injured accepts a sum of money or other thing as a satisfaction, this is a redress of that injury, and entirely takes away the action.(w)" By (*) Cro. Eliz. 590. Cro. Car. 200.
(v) 9 Rep. 79. 27 See, in general, Com. Dig. Accord, Bac. Abr. Accord.
The mere consent of a party to accept a satisfaction, without an actual satisfaction, is not sufficient to discharge the other. The accord and satisfaction must be perfect, complete, and executed; for, were it otherwise, it would be only substituting one cause of action for another, which might go on to any extent. 9 Rep. 79, b. 5 T. R. 141. Satisfaction must be made to the whole of the original demand ; and a party will not be discharged upon performance of a satisfaction to part of such demand, the residue remaining unperformed. 1 Taunt. 526. 5 East, 230. The performance of one of two things stipulated for by an accord is nugatory, (lord Raym. 203 ;) and where it was agreed that the plaintiff and defendant should each deliver up his part of an indenture to be cancelled, and the defendant had delivered up his part, this was held no accord and satisfaction. 3 Lev. 189. The accord and satisfaction must be certain: an accord to pay a less sum on the same or at a subsequent day is not sufficient. 5 East, 230. So 'an accord that the defendant shall employ workmen in two or three days is bad, (4 Mod. 88;) and performance of an uncertain accord will not aid the defect. 3 Lev. 189. Yelv 124.
We have already seen (ante, 2 book) how far a contract may be varied, released, or discharged by another contract. A deed before breach cannot be discharged by accord and satisfaction without a deed,( 1 Taunt. 428. Com. Dig. Pleader, 2, v. 8 ;) but after breach accord and satisfaction without deed is a good plea, for there the satisfaction is of the breach, and not of the deed. Com. Dig. Accord, A. 1 & C. 7 East, 150. 1J. B. Moore, 358, 460. Cro. Eliz. 46. 2 Wils. 86. 6 Rep. 43, b.
The satisfaction must be a reasonable one. Generally speaking, the mere acceptance of a less sum is not in law a satisfaction of a greater sum, (5 East, 230;) and this though an additional security be given. 1 Stra. 426. An agreement between a debtor and creditor that part of a larger sum due should be paid by the debtor, and accepted by the creditor as a satisfaction for the whole, might, under special circumstances, operate as a discharge of the whole; but then the legal effect of such an agreement might be considered to be the same as if the whole debt had been paid, and part had been returned as a gift to the party paying. Per Holroyd, J., 2 B. & C. 481. A debtor's assignment of all his effects to a trustee, to raise a fund for the payment of a composition to his creditors, is a sufficient satisfaction, (2 T. R. 24;) so if a third person guarantees the payment of the less sum. 11 East, 390. So if a creditor, by his undertaking to accept a composition, induce the debtor to part with his property to his creditors, or induce other creditors to discharge the debtor, to enter into a composition-deed, or deliver up securities to him, such creditor would be bound by such undertaking. 2 Stark. Rep. 407. 2 M. & 8. 120. 1 Esp. 236. And where several creditors, with the knowledge of each other, agree on the faith of each others' undertaking to give time to, or accept a composition from, a debtor, the agreement will be binding on every creditor who is party to it. 3 Camp. 175. 2 M. & S. 122. 16 Ves. 374; and see further, as to composition with credifors, 3 Chitty's Com. L. 687 to 698. It should be here also observed that when a bond or other security under seal has been given and accepted in satisfaction of a simple contract-debt, the latter is merged in such higher security, and no action can be supported for the non-performance of the simple contract, (Cro. Car. 415. Bac. Abr. Debt, G.,) unless indeed such new securi be void ; but the mere taking of an instr nent of a
several late statutes, (particularly 11 Geo. II. c. 19, in case of irregularity in the method of distraining, and 24 Geo. II. c. 24, in case of mistakes committed by justices of the peace,) even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no.29
II. Arbitration is where the parties injuring and injured submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators, who are to decide the controversy; and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator or impar,)(x) to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.(y) But the right of real property cannot thus pass by a mere award :(z) which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles; for if this had been permitted the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release ( Whart, Angl. Sacr. i. 772. Nicols. Scot. Hist. Libr. ch.
(v) Brownl. 55. 1 Freem. 410. 1, prope finem.
☺ i Roll. Abr. 242. 1 Lord Raym. 115.
higher order as a collateral or additional security does not preclude the debtor from suing on the original contract, and this though judgment be obtained on such security. 2 Leon. 110. 6 T. R. 176, 177. Payment and acceptance of a part of a debt before the day it falls due, or at a place where the whole debt was not payable, in satisfaction of the whole, is a good satisfaction, (Co. Litt. 212, b.;) and so if the debtor give a chose in possession for a chose in action, (2 T. R. 24,) as the gift of a horse, or other property in specie. Co. Litt. 212, b. The mere fulfilment of an act which a party is bound in law to do is no satisfaction. Per Grose, J., 5 East, 302. A release of an equity of redemption is no satisfaction. 2 Wils. 86. Conferring a benefit to a third person at the debtor's request is sufficient. See Skin. Rep. 391.
The satisfaction should proceed from the party who wishes to avail himself of it; for when it proceeds entirely from a stranger it will be a nullity. See 5 East, 294. 1 Smith, 515. Cro. Eliz. 541.
Accord and satisfaction by copartner is a bar to any action against the other partners. 9 Rep. 79, b. So the acceptance of satisfaction from a joint tort-feasor discharges the other wrong-doers, (Sembl. 3 Taunt. 117;) and accord and satisfaction to one of several co-plaintiff's will operate as a discharge from all. See 13 Edw. IV. 6. 5 Co. 117, b.CHITTY.
* By several statutes, (particularly 11 Geo. II. c. 19, in case of irregularity in the method of distraining, and 11 & 12 Vict. c. 44, in case of mistakes committed by justices of the peace,) a tender of amends to the party injured is a bar to the action, if the party thinks proper to accept such tender. If the party injured does not accept the amends tendered, and the jury, on the trial of the action, think the sum offered sufficient, their verdict must be for the defendant. By the Common Law Procedure Act, 1852, s. 70, the defendant in all actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauchery of the plaintiff's daughter or servant) may pay into court a sum of money by way of compen: sation or amends. And, by statute 6 & 7 Vict. c. 96, s. 2, in action for a libel contained in any newspaper or periodical publication, the defendant may plead that it was inserted without malice or gross negligence, and that an apology had been offered to be published. The defendant may with the plea pay money into court as amends. By s. 4, the offer of apology is admissible in evidence in mitigation of damages.-STEWART.
Where, by act of assembly, a penalty of fifty pounds was imposed upon any magistrate or minister marrying a minor without the consent of parents or guardians, and an act of assembly provided also for notice of any suit against a magistrate in order that he might have the opportunity to tender amends, it was held that no sum of money short of the penalty could be a sufficient amends. In demands founded on torts and sounding in damages, any sum of money may be treated as amends, because the standard of damage is uncertain, depending on a variety of circumstances, and a party is as likely to recover on trial less than the sum tendered as to recover more. But for a pecuniary debt, fixed and certain, a less sum of money cannot be an equivalent. Thus, payment of a less sum of money can never be admitted as an accord and satisfaction of a greater sum due. But payment of any sum accepted as satisfaction of damages for a personal injury is sufficiep*, Lowrie vs. Verner, 3 Watts, 317.-SHARswood.