SECTION II.

When the distress may be made.

166. The making a distress being considered in itself as a legal demand of the rent, no other demand is generally requisite, unless there be a reservation requiring a special demand. The ten days' notice required by the Tithe Commutation Act, (No. 105,) may be considered the demand of the Rent-Charge, and no other demand appears to be necessary.

167. A distress cannot be made for rent in general before the next day after the rent is due.-Co. Litt. 47 b. For Tithe Commutation Rent-Charge, it must be after ten days' notice, and after twenty-one days of the Rent-Charge being in arrear. (No. 105.)

168. The distress must not be made after tender of the rent, and even if a tender of rent and costs is made after the distress, but before impounding, the party would not be justified in detaining the property. Carpenter's Case, 8 Co. Rep. 147 a.; 2 Inst. 107. Tender after the distress is impounded in a public pound is insufficient.-5 T. R. 432. Evans v. Elliott, 5 A. & E. 142. Ladd. v. Thomas, 4 Perry & D. 9. Ellis v. Taylor, 8 Mee. & W. 415. West v. Nibbs, 17 L. J. C. B. 150. 4. C. B. 172.

169. If a distress was too little where sufficient distress was to be had, a man could not at common law distrain again, but by the statute 17 Car. II., c. 7. s. 4, where the value of the cattle distrained shall not be found to be the full value of the arrears distrained for, the party to whom such arrears are

due, his executors or administrators, may distrain again for the residue.

170. But a person is not to split an entire sum, and distrain for part of it at one time and part at another.-Hutchins v. Chambers, 1 Burr. 579. So a second distress was held unjustifiable, because both distresses were for the same rent, and it was the lessor's folly he did not take a sufficient distress at first.-Wallis v. Savill, Lutw. 1532.

171. If a man seize for the whole sum, and only mistake the value of the goods seized, which may be of uncertain value, such as pictures, &c., there is no reason why he should not make a second distress.Hutchins v. Chambers, supra.

172. After a distress of goods of sufficient value to satisfy arrears of rent has been made and abandoned without any cause or excuse, a second distress for the same arrears of rent is illegal.—Dawson v. Cropp 14, Law. J., N. S. C. P. 281. 9 Jur. 944.

173. The distress for rent must be made in the day time, that is, between sunrise and sunset, for a distress cannot be made in the night, either for a Rent-Service or a Rent-Charge—Co. Litt. 142 a. Aldenburg v. People, 6 C. & P. 212. But as for damage feasant, a person may distrain in the night, Co. Litt. 142 a.; so for Rent-Charge in respect of Lammas lands and commons (No. 76.), where cattle or stock are placed thereon in the night, a distress may, it is conceived, be made during the night, the Rent-Charge in such case becoming payable in the night, and otherwise the beasts may be gone before they could be distrained.

SECTION III.

Where a distress may be taken.

174. Distresses for rent may not be taken in the king's highway, nor in the common street.-52 Hen. III. c. 51.

175. If the landlord go upon the premises to distrain, and he has a view of the cattle or chattels, and the tenant remove them to prevent a distress, the landlord may follow and distrain them off the premises, but if the cattle go off the land themselves before being seen by the landlord, he cannot follow them.-Co. Litt. 161 a.

176. Distress cannot be made for rent on land enjoyed as a mere easement or privilege.-Capel v. Buzzard, in error, 6. Bingham, 150.

177. But allotments made after the Commutation in respect of rights of common, are liable to distress for the Rent-Charge fixed on tenements, to which they are appended or appurtenant. (No. 154.) A landlord may distrain cattle or stock of the tenant depasturing on any common appendant or appurtenant.-11 Geo. II. c. 19, s. 8.

SECTION IV.

What things are the subject of distress, and exemption therefrom.

178. No distress can be made upon land in the possession of the king.-Bro. Dis. pl. 46. Bradby Dis. 107. In some cases the king's grantee is privileged from distress for rent, as where the land is once

absolutely vested in the king by office or record, Bro. Dis. pl. 47; but not for a Rent-Charge upon it, Bro. Dis. pl. 27; unless the Rent-Charge, as well as the land, were bound by the office.-Bradby Dis. 108, 109.

179. However, by s. 12 of the Tithe Commutation Act, the word "person" shall mean and include the king's majesty; her majesty is therefore included in section 85. (No. 109.) In general, the king is not bound by a statute unless specially named.— 11 Rep. 68.

180. But where crown lands, by reason of their being of the tenure of ancient demesne, or otherwise, are exempted from payment of tithes whilst in the tenure, occupation, or manurance of her majesty, her tenants, farmers, or lessees, or their under-lessees, as the case may be, they are also exempted from the Rent-Charge whilst in the like tenure or occupation. -2 & 3 Vic. c. 62, s. 12.

181. And where any lands were exempted from tithe, whilst in the occupation of the owner thereof, by reason of being glebe, or of having been heretofore parcel of the possessions of any privileged order, the same lands shall be in like manner exempted from the payment of the Rent-Charge apportioned on them, whilst in the occupation of the owner thereof.-6 & 7 Wm. IV. c. 71, s. 71. But the RentCharge payable for such lands should be separately stated in the award, No. 18. As to the exemption of barren lands (s. 71,) seven years since Christmas, 1835, having expired, this exemption will no longer apply.

182. By the 7 Anne, c. 12, the goods of all ambassadors, or other public ministers of any foreign province or state, or the domestic servants of such ambassadors or public ministers, are privileged from distress. But where the servant of an ambassador rented a house, and let part of it in lodgings, it was held that his goods were distrainable for poor rates.-Novello v. Toogood, 1 B. & C., 554; S. C., 2 D. & R., 833.

183. It may be laid down as a general rule, that all personal chattels are liable to be distrained unless particularly protected or exempted.—3 Bl. Comm. 7. But as every thing which is distrained, is presumed to be the property of the wrong doer, it will follow that such things wherein no one can have an absolute property cannot be distrained, and therefore dogs, cats, rabbits, and animals feræ naturæ cannot, (Co. Litt. 47 a.; 3 Bl. Comm. 7); nor fishes in a pond, (1 Cro. 188); nor poultry (2 Inst. 133). But deer in an enclosed park may be distrained (Davis v. Powell, Willes, 48. 3 Bl. Comm. 7. Bradby Dis. 207); and poultry, if confined in a cage or coop, not fixed, may no doubt be distrained, but otherwise they cannot properly be impounded.

184. Things for which a replevin will not lie so as to be identified, are exempt from distress; therefore, loose money, meal, or the like, not confined in a bag or sack, and consequently bearing no mark by which they could be known, cannot be distrained; but when inclosed in a bag, which might be marked and known, they can, as, its identity being established, the objection ceases.-1 Roll. Abr. 666.