The re moval must be In order to justify a landlord in acting under the first section of this statute, the goods must have been removed after the rent became due, for if they be removed at any time before the rent becomes due, the landlord will not be warranted in distraining them off the premises. The statute, however, applies to all cases where a landlord is, by the conduct of his tenant in removing goods from premises for which rent is due, turned over to the barren right of bringing an action for his rent. Where a tenant openly, and in the face of day, and with notice to his landlord, removed his goods without leaving sufficient on premises to satisfy the rent then due, and the landlord followed and distrained the goods; held, that although the removal might not be clandestine, yet, if it was fraudulent, (which was a question for the jury,) the landlord was justified under the statute b. The mere removal of the goods is not sufficient to bring the case within the statute. The removal must be fraudulent, which ́fraudulent. is a question for the jury; and it must appear that sufficient goods were not left on the premises to meet the arrears of rent. The statute applies to the goods of the tenant only, and not to those of a stranger or a lodger; wherefore, a plea justifying the following goods off the premises, and distraining them for rent arrear, must show that they were the tenant's goods e. Where the assignees of a bankrupt, who was lessee of pasture land, being chosen on the 8th of the month, allowed his cows to remain upon the demised premises till the 10th, and ordered them to be milked there; held, that they thereby became tenants to the lessor, and the cows being removed on the 10th to avoid a distress for arrears of rent, that he had a right to follow and distrain them a. SECTION VII. AT WHAT TIME A DISTRESS MAY BE TAKEN. cannot be made at night, or until the day after the rent becomes due, ex cept by contract or A DISTRESS for rent cannot be made at night, that is between A distress sunset and sunrise b, nor can it at common law be made until the day after the rent becomes due, for the rent is not due until the last minute of the natural day on which it is reserved, though strictly it is demandable and payable before sunset on that day. The custom of a place, however, or an agreement between the landlord and tenant, may empower the landlord to distrain for it earlier. Therefore, where a trader, after com- custom. mitting an act of bankrupty, took a shop, and agreed to pay a half-year's rent in advance, where by the custom of the country, half a year's rent became due on the day on which the tenant entered; it was held, that the landlord, after an assignment under the commission, and before the year expired, might distrain the goods on the premises for half a year's rent. At common law the landlord could not have distrained for his rent after the expiration of the terme. But by 8 Ann c. 14. s. 6, “any person, having any rent in arrear upon any lease for life or lives, or for years or at will, may distrain for such arrears after the determination of the lease; provided such distress be made within six calendar months after the determination of such lease, and during the continuance of such landlord's title or interest, and during the possession of the tenant from whom such arrears became due."f Although this proviso is in terms confined to the possession The landlord may distrain within six months after the expiration of the term. Limita tions as to the time of making a distress. of the tenant, yet it has been held 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 at the time when the tenant died, as well as for what accrued afterwards a. Where a landlord permitted his tenant to retain possession of part of a farm after the tenancy had expired, it was held that he might distrain on that part within six months after the expiration of the tenancy. So, where part of a tenant's corn remained in a barn on the demised premises beyond six calendar months, but within the time allowed by the custom of the county for outgoing tenants to get in and dispose of their crops; it was held, that the landlord might distrain the corn on the premises. So, where the tenant's remaining was by agreement. But a termor, who lets to an under-tenant, cannot, after his term has expired, enforce the continuance of the under-tenancy by distress, if the under-tenant refuses to acknowledge him as landlord, or pays him under threat of distress; although the under-tenant still retain the possessione. By 3 & 4 W. IV. c. 27. s. 2, 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 time at which the right to make such entry or distress, or bring such action, shall have first accrued; and by sec. 42, no arrears of rent or interest in respect of money charged upon or payable out of any land or rent shall be recovered by distress or action, but within six years next after the same shall have become due, or after an acknowledgment of the same in writing shall have been given to the person entitled thereto, signed by the person by whom the same was payable. SECTION VIII. HOW A DISTRESS SHOULD BE MADE. of a bailiff to distrain. THE distress for rent should be made by the landlord or his Authority bailiff, if by the latter he should have a warrant of distress signed by the landlord; a subsequent assent, however, will be as effectual as a previous command; for "whenever a specific appointment of an agent is necessary, a subsequent recognition of acts done by him in that capacity is better even than a previous authority. " a Where, in replevin against a broker, it appeared that the landlord had employed the attorney to defend him, it was held sufficient evidence of the broker's authority to distrain, in the absence of any written warrant ". The stat. 13 Edw. I. c. 37, (West. 2,) which enacts that no distress shall be taken except by bailiffs "sworn and known," does not apply to distresses taken for rent in arrear. a sufficient seizure. If the landlord enter a house and seize upon some goods as What is a distress in the name of all the goods in the house, it will be sufficient. Even a slight expression of the landlord's intention to make a distress will be sufficient. As where a landlord, hearing a tenant and a stranger dispute about the property of an article in the premises, declared that the article should not be removed until his rent was paid, and in the afternoon of the same day sent his broker to distrain for the rent; it was held, that the distress was commenced by the declaration of the landlord in the morning, and completed by the entry of the broker, and that the landlord was entitled to an article which had been removed in the mean time e. Where a landlord's agent went on the tenant's premises, walked round them, and gave a written notice that he had distrained certain goods lying there, for rent, and that unless the rent was paid within five days the goods would be sold, and Per Best, C. J., in Jones v. Bright, 5 Bing. 533. 2 M. & P. 120. Bro. Ab. tit. Traverse, 3. Lamb v. Mills, 4 Mod. 378. 11 Mod. 112. Duncan v. Meicleham, 3 C. & P. 172. It seems that an infant can. not be a bailiff. Cuckson v. Winter, C Begbie v. Hayne, 2 Scott, 193. The outer door must not be an inner door may. went away without leaving any person in possession; it was held to be a sufficient seizure to give the tenant a right of action for excessive distress, and that quitting the premises without leaving any one in possession was not an abandonment of the distress, as the 11 G. II. c. 19. s. 10. gave the landlord power to impound, or otherwise secure on the premises goods distrained for rent in arrear a. A broker's man having taken possession of property under a distress for rent, after remaining two days, left the house in a state of great excitement, bordering on insanity. The landlord thinking that his leaving had been procured by the drugging of his liquor by the parties in the house, but which was not proved, six days after broke into the house and took away the goods, without any previous demand of admission; held, that he had no right to enter again after so long a delay, and that the owner of the goods might maintain trover for them ". In order to make a distress, the outer door cannot in ordinary cases be broken; but if the outer door be open, the perbroken, but son distraining may justify breaking open an inner door, or lock, to find any goods that may be distrainable. It has been held that trespass will not lie against a landlord who occupied an apartment over a mill demised to his tenant, from which it was divided only by a boarded floor without any ceiling, for taking up the floor of his own apartment, and entering through the aperture to distrain for rent d. And by 11 Geo. II. c. 19. s. 7, "any place in which goods or chattels, fraudulently or outer door clandestinely conveyed away, are locked up or secured, so as to prevent the same from being taken as a distress for rent arrear, may be broken open and entered in the day time by the party distraining; first calling to his assistance the constable or other peace officer of the place where the goods are suspected to be concealed; and in case of a dwelling-house, oath being first When the may be broken open. a Swann v. Falmouth, Earl of, 8 B. & C. 456. 2 M. & R. 534. Russell v. Rider, 6 C. & P. 416. Browing v. Dann, B. N. P. 81. In making a distress for rent, circumstances may occur which may require the presence of a police officer. But to justify the landlord in calling him in, it must be shewn that his presence was rendered necessary either from threats of resistance, or the apprehension of violence, &c. Skidmore . Booth, 6 C. & P. 777. Tindal. d Gould v. Bradstock, 4 Taunt. 562. |