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that is, doing damage or trespassing upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawing their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage.

As the law of distresses is a point of great use and consequence, I shall consider it with some minuteness : by inquiring, first, for what injuries a distress may be taken; secondly, what thing may be distrained; and thirdly, the manner of taking, disposing of, and avoiding distresses.

1. And first it is necessary to premise that a distress,(j) districtio, is the taking a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed. 1. The most usual injury for which a distress may be taken is that of non-payment of rent. It was observed in the former book,(k) that distresses were incident by the common law to every rent-service, and by particular reservation to rentcharges also; but not to rent-seck till the statute 4 Geo. II. c. 28 extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them. So that now we may lay it down as a universal prin*7]

ciple, *that a distress may be taken for any kind of rent in arrear; the

detaining whereof beyond the day of payment is an injury to him that is entitled to receive it.? 2. For neglecting to do suit at the lord's court,(l) or other certain personal service,(m) the lord may distrain of common right. 3. For amercements in a court-leet'a distress may be had of common right; but not for amercements in a court-baron, without a special prescription to warrant it.(n) 4. Another injury for which distresses may be taken is where a man finds beasts of a stranger wandering in his grounds damage-feasant; that is, doing him hurt or damage by treading down his grass or the like; in which case the owner of the soil may distrain them till satisfaction be made him for the injury he has thereby sustained. 5. Lastly, for several duties and penalties inflicted by special acts of parliament, (as fòr assessments made by commissioners of sewers,(0) or for the relief of the poor,)(p) remedy by distress and sale is given; for the particulars of which we must have recourse to the statutes themselves : remarking only that such distresses(9) are partly analogous to the antient distress at common law, as being repleviable and the like; but moro resembling the common law process of execution, by seizing and selling the goods of the debtor under a writ of fieri facias, of which hereafter.

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2. Secondly, as to the things which may be distrained, or taken in distress, (1) The thing itself taken by this process, as well as the process itself, is in our law-books very frequently called



(A) Book ii. ch. 3.

(m) Co. Litt. 47.
(") Brownl. 36.
(© Stat. 7 Anne, c. 10.
(P) Stat. 43 Eliz. c. 2.
(9) 1 Burr. 639.

Bro. Abr. tit. distress, 15.

* But, to entitle a party to distrain, there must be rent due in the legal sense of that word. One man may be in possession of another's house or land with his consent, and may be bound to render him such a sum for the use and occupation of it as a jury shall deem a proper equivalent for the rent; but if there be no actual demise, nor any contract for a demise amounting to as much, and no fixed rent has been agreed on or paid, the owner cannot distrain; for in his avowry to an action of replevin for such distress he would be bound to state an actual tenancy and the definite terms of it, which it would be impossible to do under such a relation as above supposed. Kegan vs. Johnson, 2 Taunt. 148. Dunk vs. Hunter, 5 B. & A. 322.-COLERIDGE.

8 Besides the rules in the text, it is a maxim of law that goods in the custody of the law cannot be distrained: thus, goods distrained, damage-feasant, cannot be distrained, (Co. Litt. 47, a. ;) so goods taken in execution, (Willes, 131;) but the goods so taken must be removed from the premises within a reasonable time, or they will not be protected. 1 Price, 277. 1 M. &. s. 711. However, growing corn sold under a writ of fi. fa. cannot be distrained unless the purchasor allow it to remain uncut an unreasonable time after it is ripe, (2 B. & B. 362. 5 Moore, 97, S. C. ;) but goods taken under a void outlawry are liable to distress. 7 T. R. 259. For the protection of landlords, by the 8 Anne, c. 14, s. 1, 110 goods taken in execution upon any premises demised can be removed until rent, not exceeding one year's arrear, be paid. Under this act the sheriff is bound to satisfy the rent in the first instance. 4 Moore, 473. In cases to which the statute applies, the land



we may lay it down as a general rule, that all chattels personal are liable to be distrained, unless particularly protected or exempted. Instead therefore of mentioning what things are distrainable, it will be easier to recount those which are not so, with the reason of their particular exemptions.(r) And, 1. As every thing which is distrained is presumed to be the property of the wrong-doer, it will follow that such things wherein no man can have an absolute and valuable property (as dogs, cats, rabbits, and *all animals ferre naturæ,) cannot be distrained. Yet if deer (which are feræ naturæ) are kept in a private enclosure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent.(s) 2. Whatever is in the personal use or occupation of any man is for the time privileged and protected from any distress; as an axe with which a man is cutting wood, or a horse while a man is riding him. But horses draw. ing a cart may (cart and all) be distrained for rent-arrere; and also if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another's grounds, the horse (notwithstanding his rider) may be distrained and led away to the pound."(t) Valuable things in the way of trade shall not be liable to distress; as a horse standing in a smith-shop to be shoed, or in a common inn; or cloth at a tailor's house; or corn sent to a mill or a market. For all these are protected and privileged for the benefit of trade, and are supposed in common presumption not to belong to the owner of the house, but to his customer.10 But, (5) Co. Litt. 47. (5) Davis vs. Powl, C. B. Hil. 11 Geo. II.

(4) 1 Sid. 440. lord is entitled to be paid his whole rent without deducting poundage. 1 Stra. 643. Rent

1 only due at the time of the levy can be obtained under the act, (1 M. & S. 245. 1 Price, 274;) but forehand-rent, or rent stipulated to be paid in advance, may be obtained, (7 Price, 690 ;) so rent that falls due on the day of the levy. Tidd, Prac. 8th edit. 1054 After the landlord has had one year's rent paid him, he is not entitled to another upon a second execution, (2 Stra. 1024. 2 B. & B. 362. 5 Moore, 97, S. C.,) unless, as we have just seen, the goods be not removed within a reasonable time. The ground landlord is not within the act where there is an execution against the under-lessee. 2 Stra. 787. If the sheriff remove the goods without payment of the rent, and after notice and a formal lemand of the rent, an action on the case lies against him. Vin. Abr. Dist. c. 3. Stra. 97. 3 B. & A. 440. But no specific and formal notice is necessary. 3 B. & A. 645. 4 Moore, 473. 2 B. & B. 67, S. C. The action lies though part only of the goods be removed, (4 Moore, 473. 2 B. & B. 67, S. C.;) but the landlord's consenting to the removal waives the remedy. 3 Camp. 24. An executor or administrator, (1 Stra. 212,) or a trustee of an outstanding satisfied term to attend the inheritance, may sue. 4 Moore, 473. 2 B. & B. 67, S.C. Instead of an action, the landlord may move the court out of which the execution issued that he may be paid what is due to hiin out of the money levied and in the sheriff's hands, (Ca. temp. Hardw. 255. 2 Wils. 140,) and the court will grant the motion, though the sheriff had no notice of the rent due till after the removal. 3 B. & A. 440; and see further, on this point, Tidd's Prac. 8th edit. 1053–1055.

The recent bankrupt act provides that, in case of bankruptcy, no distress made after act of bankruptcy shall be available for more than a year's rent, but the landlord may prose for the excess. 1 Geo. IV. c. 16, & 74; and see ante, 2 book, 473.

From the protection of landlords, by the 56 Geo. III. c. 50, no sheriff or other officer shall carry off

, or sell, or dispose of, for the purpose of being carried off from any lands, any straw, chaff, turnips, in any case, nor any hay or other produce which, according to any covenant or written agreement, ought not to be so carried off, provided notice be given to the sheriff of the existence of such covenant; but, by third section, the sheriff may sell on condition of such crops being consumed on the land. The sixth section provides that landlords shall not distrain for rent on the purchasor of any such crops sold according to third section, nor on articles or cattle, &c. employed for the purpose of consuming such crops.-Chitty.

* But this doctrine is contrary to Sayer Rep. 139. 2 Keb. 596. Cro. Eliz. 596. Co. Litt. 47, a. Roll. Abr. Distress, A. pl. 4; and was expressly overruled in 6 Term R. 138, on the ground that the distraining a horse as damage-feasant whilst any person is riding him would perpetually lead to a breach of the peace. And it has been held that nets or ferrets cannot be taken damage-feasant in a warren if they are in the hands of the person using them. Harg. Co. Litt. note 13. Cro. Eliz. 550. So a loom cannot be distrained while in the hands of the weaver, (Willes, 517,) nor wearing-apparel if in actual use; but if put off, though only for the purpose of repose, it is liable to be distrained. 1 Esp. Pep. 206. Peake's Rep. 36, S. C.-Cutty. As to this exception in favour of trade, see Gilb. Dist. by Hunt, 39 so cattle and


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generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distrainable by him for rent: for otherwise a door would be open to intinite frauds upon the landlord; and the stranger has his remedy over by action on the case against the tenant, if by the tenant's default the chattels are distrained so that he cannot render them when called upon. With regard to a stranger's beasts which are found on the tenant's land, the following distinctions are, however, taken. If they are put in by consent of the owner of the beasts, they are distrainable immediately afterwards for rent-arrere by the landlord. (u) So also if

(u) Cro. Eliz. 549.



goods of a guest at an inn are not distrainable for rent, but a chariot or horses standing at livery are not exempt. 2 Burr. 1498. Mr. Sergt. Williams, in 2 Saund. 290, n. 7, suggests that it should seem that at this day a court of law would be of opinion that cattle belonging to a drover being put into ground, with the consent of the occupier, to graze only one night on their way to a fair or market, are not liable to the distress of the landlord for rent; and lord Nottingham intimated the same opinion in 2 Vern. 130; and Mr. Christian, in his edition, has the following note of a decision to the same effect:-Cattle driven to a distant market, and put into land to rest for one night, cannot be distrained for rent by the owner of the land, such protection being absolutely for the public interest.” Tate vs. Gleed, C. P. Hil. 24 Geo. III. Gilb. Dist. by Hunt, 47. It was before held that cattle going to London, and put into a close, with the consent of the landlord and leave of the tenant, to graze for a night, might be distrained by the landlord for rent, (3 Lev. 200. 2 Vent. 50. 2 Lutw. 1101;) but the owner of the cattle was afterwards relieved in equity on the ground of fraudulent connivance and concealment of the demand for rent by the landlord, and he was decreed to pay all costs both of law and equity. 2 Vern. 129. Prec. Ch. 7. Gilb. Dist. by Hunt, 47. As courts of law now take notice of fraud, as well as courts of equity, when it can be fully proved, there would now be the same result at law.

Goods of a principal in the hands of a factor are privileged from distress for rent due from such factor to his landlord, on the ground that the rule of public convenience, out of which the privilege arises, is within the exception of a landlord's general right to distrain, and therefore that such goods are protected for the benefit of trade. 6 Moore Rep. 243. 3 B. & B. 75, S. C. So goods landed at a wharf and consigned to a broker, as agent of the consignor, for sale, and placed by the broker in the wharfinger's warehouse for safe custody until an opportunity for selling them should occur, are not distrainable for rent due in respect of the wharf and warehouse, as they were brought to the wharf in the course of trade. 1 Bing. 283. So goods carried to be weighed, even at a private beam, if in the way of trade, are exempt; so is a horse that has carried corn to a mill to be ground, and during the grinding of the corn is tied to the mill-door. Cro. Eliz. 549, 596. Goods in a public fair are exempt from distress, unless for toll due from the owner. 2 Lutw. 1380. Goods in possession of a carrier are also exempt, and this though the carrier be not a public one. 1 Salk. 249.—Chitty.

The American courts have adopted the principle stated in the text, and carried it out in application with great liberality. Thus, goods in an auctioneer's rooms, or in the store of one who takes merchandise on storage or on commission to sell, have been held to be exempt. Hinely vs. Wyatt, 1 Bay, 102. Brown vs. Simms, 17 Serg. & Rawle, 138. Walker vs. Johnson, 4 McCord, 552. Bevan vs. Crooks, 7 Watts & Serg. 452. So it has been held that the goods of a boarder are not liable to be distrained for rent due by the keeper of the boarding-house. Riddle vs. Welden, 5 Wharton, 9. Stone vs. Matthews, 7 Hill, 428.-Sharswood.

11 As if horses or cattle are sent to agist, they may be immediately distrained by the landlord for rent in arrear, and the owner must seek his remedy by action against the farmer. The principle of this rule extends to public livery-stables, to which if horses and carriages are sent to stand, it is determined that they are distrainable by the landlord, as if they were in any public place, (3 Burr. 1498 ;) so upon the same principle the goods of lodgers or any other person on the premises are liable to be distrained ; and to exempt goods from distress on the ground of their being in an inn, they must be within the very precincts of the inn, and not on other premises at a distance belonging to it, (Barnes, 472;) and even within the inn itself the exemption does not extend to a person dwelling herein as a tenant rather than a guest. 1 Bla. Rep. 484.

As to the remedy over by an under tenant or lodger, see the cases cited in 3 Bar.& Cres. 789, in which it was held that where the tenant of premises had underlet a part hoy deed, and the original landlord distrained for rent upon the under-tenant, the latter could not support assumpsit against his immediate lessor upon an inplied promise to indemnify him against the rent payable to the superior landlord.—Cutty.




the stranger's cattle break the fences and commit a trespass by coming on the
land, they are distrainable immediately by the lessor for the tenant's rent, as a
punishment to the owner of the beasts for the wrong committed through his
negligence.(v) But if the lands were not *sufficiently fenced so as to keep
out cattle, the landlord cannot distrain them till they have been levant and
couchant (levantes et cubantes) on the land; that is, have been long enough there
to have lain down and rose up to feed; which in general is held to be one night
at least :12 and then the law presumes that the owner may have notice whether
his cattle have strayed, and it is his own negligence not to have taken them
away. Yet, if the lessor of his tenant were bound to repair the fences and did
not, and thereby the cattle escaped into their grounds without the negligence
or default of the owner; in this case, though the cattle may have been levant
and couchant, yet they are not distrainable for rent till actual notice is given to
the owner that they are there, and he neglects to remove them :(w) for the law
will not suffer the landlord to take advantage of his own or his tenant's wrong"
3. There are also other things privileged by the antient common law; as a man's
tools and utensils of his trade, the axe of a carpenter, the books of a scholar,
and the like: which are said to be privileged for the sake of the public, because
the taking them away would disable the owner from serving the common wealth
in his station. So, beasts of the plough,15 averia carucæ, and sheep, are pri-
Fileged from distresses at common law;(2) while dead goods, or other sort of
beasts, which Bracton calls catalla otiosa, may be distrained. But as beasts of
the plough may be taken in execution for debt, so they may be for distress by
statute, which partake of the nature of executions.(y) And perhaps the true
reason why these and the tools of a man's trade were privileged at the common
law, was because the distress was then merely intended to compel the payment
of the rent, and not as a satisfaction for its non-payment: and therefore to
deprive the party of the instruments and means of paying it would counteract
the very end of the distress.(z) 5. Nothing shall be distrained for rent which
may not be rendered again in as good plight as when it was distrained : for
which reason milk, fruit, and the like cannot be distrained, a distress at

(O) Co. Litt. 47.
(*) Lutw. 1580.
(5) Stat. 51 Hen. III. st. 4, de districtiones caccania.


(*) 1 Burr. 589.
(9) Ibid. 558.

Levant and couchant in this sense means that the cattle must be lying down and rising up on the premises for a night and a day, without pursuit made by the owner of them. Gilb. Dist. by Hunt, 3 edit. 47.–Chitty.

13 In the case of Poole vs. Longuevill, 2 Saund. 289, the contrary was determined; but that case was overruled in 2 Lutw. 1580; and the result of the cases seems to be, that if a stranger's beasts escape into another's land, by default of the owner of the beasts, as by breaking the fences, otherwise sufficient, they may be distrained for rent immediately, without being levant and couchant; but that if they escape there by default of the tenant of the land, or for want of his keeping a sufficient fence, then they cannot be distrained for rent or service of any kind till they have been levant and couchant, nor afterwards by a landlord for rent on a lease, unless the owner of the beasts neglect or refuse, after actual rotice, to remove them within a reasonable time; but it is said that such notice is not necessary where the distress is by the lord of the fee or by the grantee of a rent-charge. 2 Lutw. 1573. Co. Litt. 47, b., n. 3. Gilb. Dist. by Hunt, 3d edit. 45. 2 Saund. 290, n. 7, 285, n. 4. See further, Vin. Abr. Fences.-CHitty.

" A stocking-frame (Willes, 512) or a loom, (4 T. R. 565,) being implements of trade, cannot be distrained ; but it inust be observed that utensils and implements of trade may be distrained where they are not in actual use and no other sufficient distress can be found on the premises. Ço. Litt. 47, a. 4 T. R. 565. And it should seem that if there be reasonable ground for presuming there are not sufficient other goods, the party may distrain implements of trade, and is not bound to sell the other goods first, (6 Price's Rep. 3. 2 Chitty's R. 167;) and this rule of exemption does not extend to cases where & distress is given in the nature of an execution by any particular statute, as for pcor-rates and the like, (3 Salk. 136. 1 Burr. 579. Lord Raym. 384. 1 Salk. 249, S.C.,) nor where the distress is for damage-feasant. Com. Dig. Distress, B. 4.—Cutty.

15 In actual use, but not otherwise. 4 T. R. 566. Also see 2 Inst. 132, where other authorities are collected. The modern case just cited contains much learning upon what is, and what is not, with reference to the freehold, distrainable.-Chitty.



*common law being only in the nature of pledge or security, to be re

stored in the same plight when the debt is paid. So, antiently, sheaves or shocks of corn could not be distrained, because some damage must needs accrue in their removal; but a cart loaded with corn might, as that could be safely restored. But now, by statute 2 W. and M. c. 5, corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distrained, as well as other chattels.16 6. Lastly, things fixed to the freehold may not be distrained; and caldrons, windows, doors, and chimney-pieces; for they savour of the realty."? For this reason also corn growing could not be distrained, till the statute 11 Geo. II. c. 19 empowered landlords to distrain corn, grass, or other products of the earth, and to cut and gather them when ripe.18

Let us next consider, thirdly, how distresses may be taken, disposed of, or avoided. And first I must premise that the law of distresses is greatly altered within a few years last past. Formerly they were looked upon in no other light than as a mere pledge or security for payment of rent or other duties, or satisfaction for damage done. And so the law still continues with regard to distresses of beasts taken damage-feasant, and for other causes, not altered by act of parliament; over which the distrainor has no other power than to retain them till satisfaction is made. But, distresses for rent-arrere being found by the legislature to be the shortest and most effectual method of compelling the pay. ment of such rent, many beneficial laws for this purpose have been made in the present century, which have much altered the common law as laid down in our antient writers.

In pointing out therefore the methods of distraining, I shall in general surpose the distress to be made for rent, and remark, where necessary, the differences between such distress and one taken for other causes. *11]

*In the first place then, all distresses must be made by day,is unless in the case of damage-feasant; an exception being there allowed, lest the



16 This provision extends to comn in whatever state it may be, whether threshed or unthreshed, (1 Lutw. 214;) and, as observed by Mr. Bradby, inasmuch as this statute directs the distress to be sold unless replevied within five days, perhaps the rule of the ancient common law with respect to the perishable nature of the distress no longer extends in the case of a distress for rent to any thing which is not liable to deterioration within the five days. Bradby on Dist. 213. A sale by a landlord of standing corn, taken as a distress before it is ripe, is void, and the tenant need not replevy, neither can he sue the seller, in an action on the case, for selling such corn before the expiration of five days. 3 B. & A. 470.–Chitty.

it Co. Litt. 47, b. This rule extends to such things as are essentially part of the household, although for a time removed therefrom, -as a millstone, removed to be picked. Bro. Abr. Distress, pl. 23. 4 T. R. 567. As to what are fixtures, see 2 Chit. Com. Law, 268. Com. Dig. Biens. #. Chitty's Law of Descents, 256, 257. 4 Moore, 281, 440. 2 D. & R. 1. 5 B. & A. 826. 2 Stark. 403. 2 B. & C. 608. 4 D. & R. 62, S. C.' 1 M‘Clelan Rep. Ex. 217.-Cutty.

18 The act applies only to corn and other produce of the land which may become ripe, and are capable of being cut and laid up: therefore trees, shrubs, and plants growing on land which the defendant had demised to the plaintiffs for a term, and which they had converted into a nursery-ground, and planted subsequently to the demise, were held not distrainable by the former for rent. 2 Moore, 491. 8 Taunt. 431. S.C. 3 Moore, 114, S. P. 3 B. & A. 470.- Chitty.

To these heads of things not distrainable may be added all goods in the custody of the law, whether as being already distrained damage-feasant, or taken in execution. In this last case, however, so long as they remain on the premises, the statute 8 Anne, c. 14 gives the landlord a beneficial lien on them, for which see post, p. 417.

The words of the statute 11 Geo. II. c. 19 are, "corn, grass, hops, roots, fruits, or other product growing on the estate demised.” The court of Common Pleas has determined that the general word“ product” does not extend beyond things of a similar nature with those before specified, to all of which the process of becoming ripe, and of being cut, gathered, made and laid up when ripe, was incidental. It was held therefore that nursery trees and shrubs could not be distrained. Clark vs. Gaskarth, 8 Taunt. 431.-COLERIDGE.

19 Mirrour, c. 2, s. 26. See also 7 Rep. 7, a. The distress cannot be made until the day after the rent falls due, unless, indeed, there be any agreement or local custom to the


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