to deduct the amount from their rent (a). By 46 & 47 Vict. c. 61, Set-off in agricultural s. 47, an agricultural tenant is entitled to set off any ascertained tenancies. amount of compensation due under the Act by custom or contract against rent, and the landlord can only distrain for the balance. A tender should, of course, be continuing, though if a landlord refuse an adequate and unconditional tender, he may thereby lose his right to distrain. But a mere attendance on the land to pay rent, without actual tender, does not avoid the landlord's right (b). A tender may always be made either to the landlord or to the person to whom the distress warrant is directed. In any other case an actual authority to receive the money must be proved (c). distresses. 2. It would be an obvious hardship for a landlord unnecessarily Repeated to multiply distresses. Therefore, if after putting in a distress and having had an opportunity of realising his rent, he has neglected to do so, his remedy by distress is gone, and he is put to his action. If he distrains again he will be a mere trespasser (d). When, however, the original entry is a trespass ab initio, a second and valid distress is justifiable (e). And if on distraining first he cannot find enough to satisfy his claim he may either abandon (ƒ) the distress altogether and subsequently distrain for the whole amount, or realise what he can and distrain for the residue (g). If a reasonable explanation be given of the abandonment, or inadequate execution, of a distress, it is no bar to another, even though it appear that there were enough goods on the premises to satisfy the claim. If the tenant has done anything equivalent to saying, "Forbear to distrain now, and postpone your distress to another time," or, if the lessee (a) 16 & 17 Vict. c. 34, s. 35. (b) Horne v. Lewin, (1700) Lord Raym. 639. (c) Smith v. Goodwin, (1883) 4 B. & Ad. 413; Hatch v. Hale, (1850) 15 Q. B. 10. (d) In such a case, however, though the tenant has his action of trespass, he cannot replevy successfully, because the fact of rent being due would be an answer (Hudd v. Ravenor, (1821) 2 B. & B. 662). (e) Grunnell v. Welch, (1905) 2 K. B. 650. (f) As to abandoning a distress, see Smith v. Goodwin, (1833) 4 B. & Adol. 413; 38 R. R.272; Swann v. Earl of Falmouth, (1828) 8 B. & C. 456, and below, p. 294. (g) Dawson v. Cropp, (1845) 1 C. B. 961; Hutchins v. Chambers, (1758) 1 Burr. 579, at p. 589. A point may arise as to whether a distrainor in computing the sufficiency of a distress on a question of abandonment is bound to take into calculation the growing crops. It would seem that he is not. See Piggott v. Birtles, (1836) 1 M. & W. 441. When second distress lawful after first aban doned. Separate distresses for separate instalments of rent. Where distress to be taken. Distress on highway. prevents the lessor making the first distress available, in either of such cases the landlord may distrain a second time (a), provided that in the interim the property in the goods has not passed to a trustee in bankruptcy (b). Where, after a sale of distrained goods the distrainee refused to let the purchaser take possession, it was held that the sale might be rescinded and a second distress levied (c). It is to be observed that it is not necessary to distrain at once for all the arrears that may happen to be due. A demand may not be split (d), but for several instalments there may be several distresses (e). And for the same instalment there may be different distresses when the right has become vested in different hands, as by an apportionment of rent or a division of a rentcharge (ƒ). 3. Both by common law and statute (g) a distress can only be taken from the premises out of which the rent issues (h). Conversely, to give a right of distress for an annual payment is to make it a charge on the land in respect of which the distress is given (i). If the occupier of the land subject to rent enjoys in connection with it any easement in the nature of a right of way his chattels are not distrainable while on the servient premises (k). It is expressly forbidden by the statute above referred to to distrain on the highway. It was held, indeed, in Hodges v. Lawrance (1) that a distress might be taken on that part of a highway adjoining the demised premises, the presumption being that they extended to the middle of the highway. The sole point, however, argued in the case was as to the true boundary of the premises. A passage in Co. Litt. (m) is directly to the contrary (a) Per Cur. Bagge v. Mawby, (1853) 8 Ex. p. 649; Lee v. Cooke, (1858) 27 L. J. Ex. 337; and see per Cur. Hutchins v. Chambers, (1758) 1 Burr. p. 589; Thwaites v. Wilding, (1883) 11 Q. B. D. 421; 12 Q. B. D. 4. (b) Ford, In re, (1900) 69 L. J. Q. B. 74. (c) Lee v. Cooke, (1857-8) 2 H. & N. 584; 3 H. & N. 203. (d) Owens v. Wynne, (1855) 4 E. & B. 579. (e) Gambrell v. Earl of Falmouth, (1835) 4 A. & E. 73; Owens v. Wynne, (1855) 4 E. & B. 579. (f) Rivis v. Watson, (1839) 5 M. & W. 255. (g) 52 Hen. III. c. 15. (h) Except by the Crown, as to which, see Chitty on Prerogative, p. 208. (i) Butt's Case, (1600) 7 Rep. p. 24a. (k) Buszard v. Capel, (1828-9) 8 B. & C. 141. () (1854) 18 J. P. 347. See Gillingham v. Gwyer, (1867) 16 L. T. N. S. 640(m) p. 161a. effect. "If the rent of the land is behind, and the lord distrain the cattle of the tenant upon the highway within his fee, the tenant may make rescous, for that it is forbidden by law to distrain in the highway." It is said, however, that if a distress is objectionable only on the ground that it is taken on the highway it is not altogether illegal, but a special action on the statute must be brought (a). may There are cases in which land not subject to a rent may yet be subject to a distress. A man may charge a rent on one piece of land, and give the grantee a right in default of sufficient distress there to distrain on another piece of land (b). So, a right be given to the tenant of land subject to a charge, in case he is distrained on to indemnify himself by distraining on other land (c). It has, however, never been held that in case of a rent service there can be any distress in the true sense, that is to say, valid against strangers to the demise, except on the premises out of which the rent issues (d). Distress on than that land other from which rent issues. to avoid If the person coming to make the distress finds the tenant in Removal the act of removing his chattels for the purpose of avoiding the distress. distress, he may follow them off the land and take them on a Fresh fresh pursuit (e). pursuit. be distrained on common. removed. By 11 Geo. II. c. 19, s. 8, landlords and lessors may distrain Cattle may cattle and stock of their tenants depasturing on any common belonging to the demised premises. By s. 1 of the same statute Goods they may distrain goods fraudulently or clandestinely removed fraudulently from the demised premises within thirty days of the removal, wherever they may be found. These provisions are only in favour of landlords, and by the terms of the statute it appears that they do not apply except in case of a rent reserved on a lease. The goods removed must be those of the tenant himself; other Goods of parties may lawfully withdraw their goods from the reach of the stranger landlord (f). If the grantee of a bill of sale given by the tenant followed. (a) Gilbert on Distress, 4th ed. p. 51. (b) Butt's case, (1600) 7 Rep. 23a; Co. Litt. p. 147a. (c) See Bythewood & Jarman's Conveyancing, 4th ed. Vol. 2, p. 939. (d) The point was argued but not decided in Daniel v. Stepney, (1874) C.F. L. R. 9 Ex. 185, where it was held that (e) Co. Litt. 161a. Per Cur. Rand v. 24 cannot be Rent due. Intent must be fraudulent. Bond fide purchaser. Goods cannot be followed removes goods comprised in the bill of sale in order to avoid a distress, the landlord will have no right of action against him even though the provision of s. 13 of the Bills of Sale Act, 1882, which requires that the chattels seized shall not be removed or sold for five days, has not been complied with (a). Rent must be due at the time of removal (b), but need not be in arrear. Therefore goods which are moved on the morning of rent-day may on the next day be followed (c), although at the time of the removal they were not liable to distress (d). The removal must not merely be with the intent of defeating the distress, but with the fraudulent intent of so doing. It is not fraudulent if the tenant prefers to use the goods in satisfying the claim of a bona fide creditor in preference to that of his landlord (e). Although secrecy is a badge of fraud there may be fraud without secrecy; however openly the goods are removed they may be followed if the intent was fraudulent (ƒ). The goods removed cannot be followed into the hands of a bonâ fide purchaser (g). If before the thirty days have elapsed the tenancy determines when tenancy and the occupation ceases the right to distrain is gone, for the object of the statute was to enlarge the landlord's remedy in respect of place but not of time (h). at an end. Forcible entry to take goods. The statute gives power to make forcible entry for the purpose of recovering the goods fraudulently removed, provided that in every case the party making entry is accompanied by a constable of the locality (i), and in case of entry on a dwelling-house, that it is made in the daytime, and oath is made before a justice of M. & S. 38; Tomlinson v. Consolidated (a) Tomlinson v. Consolidated Credit- (b) Rand v. Vaughan, (1835) 1 Bing. (c) Dibble v. Bowater, (1853) 2 E. & (e) Bach v. Meats, (1816) 5 M. & S. 200. And if the goods are removed to avoid a distress which is honestly believed to be illegal, this, it seems is not a fraudulent removal; John v. Jenkins, (1832) 1 C. & M. 227. (f) Opperman v. Smith, (1824) 4 D. & R. 33; Stanley v. Wharton, (1821-2) 9 Price, 301. (g) s. 2. (h) Gray v. Stait, (1879) 11 Q. B. D. 668. (i) A special constable will suffice: Cartwright v. Smith, (1833) 1 Moo. & R. 284. the peace that there is reasonable ground to suspect that the goods are therein (a). The statutory requirements must be strictly complied with or the entry will be unlawful (b). There is nothing in the enactment to give protection in case the goods are not actually found on the premises when entry is made. distress. 4. Distress for rent can only legally be made between sunrise Time of and sunset (c), and it would seem that the time must be fixed by the apparent rise and set and not by astronomical calculation (d). A distress cannot be taken until the day after the rent falls due (e). There is apparently no reason why a distress for rent should not be levied on a Sunday (f). entry. 5. It is illegal to enter forcibly for the purpose of distraining (g). Manner of The rules which have been laid down on this subject are not very clear or consistent, and differ in some respects from those with regard to executions. The general principle seems to be that the entry must be made in the accustomed mode of obtaining admittance, as for example by lifting the latch of the door (h). It has been held, however, that though it is not lawful to lift an unfastened window, yet if the window be partially open it may be further raised and an entry thus made. It can hardly be said that this is a normal method of admittance (i). In Gould v. Bradstock (k) the landlord occupied a room over his tenant, separated only by a boarding. He raised the boards, entered, and distrained, and it was held that this highly unusual entrance was lawful, on the curious ground that he was tenant in common of the boards, and therefore committed no trespass in raising them. If an admittance is lawfully obtained inner doors may be Inner doors. afterwards broken open to find the goods (1). The rule as to (a) s. 7. It is usual for a magistrate to give a written authority, but the Act does not require it. (b) Rich v. Woolley, (1831) 7 Bing. 651. (c) Tutton v. Darke, (1860) 5 H. & N. 647; Co. Litt. 142a. (d) But see 43 & 44 Vict. c. 9. (e) Co. Litt. p. 47b. (f) In Werth v. London and Westminster Loan & Discount Co., (1889) 5 Times L. R. 521, Mathew, J., is indeed reported to have assented to the suggestion of counsel that a distress levied on Sunday would be illegal. But he gave (g) Grunnell v. Welch, (1905) 2 K. B. (h) Ryan v. Shilcock, (1851) 7 Ex. 72. (k) (1812) 4 Taunt, 562. |