within the leet, a distress will lie for nonperformance of the | property chargeable therewith, may be seized and detained service, although no fine or amercement may have been m-as a pledge for the payment of such toll. posed in the court leet. The most important feudal duty for which a distress may be taken is rent. Rent, in its original and still most usual form, is a payment rendered by the tenant to his landlord as an equivalent or a compensation for the occupation of land, &c. Such rent is denominated rent-service. It comes in lieu of, and represents the profits of the land granted or demised, and is therefore said to issue out of the land. To rent-service the law annexes the power of distress, although there be no agreement between the parties creating that remedy. But a rent reserved upon a grant or demise ceases to be a rent-service if it be disannexed from the ultimate property in the land, called in some cases the reversion, in others, the right of reverter. Thus, if the owner of land in fee demises it for a term of years, reserving rent, and afterwards assigns the rent to a stranger, retaining the reversion, or grants the reversion, retaining the rent, the rent being disconnected from the reversion is considered as a branch severed from the trunk, and is called a dry rent or rentseck, to which the common law annexed no power of distress. So, if the owner of the land, without parting with the land, grants to another a rent out of the land, the grantee having no reversion had only a rent-seck, unless the grant expressly created a power of distress, in which case the rent would be a rent-charge. But now, by statute 4 Geo. II. c. 28, s. 5, the like remedy by distress is given in cases of rent-seck, as in the case of rent reserved upon lease. And as all rents, though distinguished by a variety of names derived from some particular circumstance attached to them, are resolvable into rent-service, rent-seck, or rentcharge, a distress lies at this day for every species of rent, though a practical difference still subsists as to the mode of dealing with distresses taken for the one or for the other. As to the several species of rent, and as to the creation, transfer, apportionment, suspension, and extinction of rents, and as to the estate or interest of the party necessary to support a distress for rent, and as to the cases in which this remedy may be exercised by the personal representatives of such parties, see RENT. II. Distress for damage-feasant.-Besides distresses for omissions, defaults, or nonfeasance, this remedy is given in certain cases as a mode of obtaining reparation for some wrong done by the distrainee. Cattle or dead chattels may be taken and detained to compel the payment of a reasonable sum of money by way of satisfaction for the injury sustained from such cattle or dead chattels being wrongfully upon property in the occupation of the party taking them, and doing damage there, either by acts of spoliation or merely by incumbering such property. This is called a distress of things taken damage-feasant (doing damage). The occupier of land, &c., is allowed not only to defend himself from injury by driving out or removing the cattle, &c., but also to detain the thing which did the injury till compensation be made for the trespass; for otherwise he might never find the person who had occasioned the trespass. Upon referring to Spelman and Ducange, it will be seen that a similar practice obtained on the continent amongst the Angli, Werini, Ripuarii, and Burgundians. The right to distrain damage-feasant is given to all persons having an immediate possessory interest in the soil or in its produce, and whose rights are therefore invaded by such wrongful intrusion. Thus, not only the occupier of the land trespassed upon, but other persons entitled to share in the present use of the land or of the produce, as commoners, &c., may distrain. But though a commoner may always distrain the cattle, &c., of a stranger found upon the common, it would seem that he cannot, unless authorized by a special custom, distrain the cattle, &c., of the person having the actual possession of the soil Nor can he distrain the cattle of another commoner who has stocked beyond his proportion, unless the common be stinted, i. e. unless the proportion be limited to a certain number. In the more ordinary case of rights of common in respect of all the cattle which the commoner's enclosed land can support during the winter, cattle exceeding the proportion cannot be distrained. Cattle found trespassing may be distrained damagefeasant, although they have come upon the land without A heriot appears to have been originally a voluntary gift the knowledge of their owner and even through the wrongby the dying vassal to his chieftain or lord (herr, herus) of ful act of a stranger. But if they are there by the default his best horse or armour. It has now become a legal lia- of the occupier of the land, as by his neglecting to repair bility to deliver the best animal of the deceased tenant to his fences, or to shut his gates against a road or a close in be selected by the lord, or sometimes a dead chattel or a which the cattle lawfully were, such negligent occupier commutation in money. Where heriot is due by usage cannot distrain unless the owner of the cattle suffer them within a particular district, in respect of all tenants to remain on the land after notice and time given to him dying within that district, without reference to the pro- to remove them; and if cattle trespass on one day and go perty held, it is heriot-custom; and as there is no par- off before they are distrained, and are taken trespassing ticular land charged with the heriot, the lord cannot dis-on the same land on another day, they can be detained train, but may seize the heriot as his own property, his only for the damage done upon the second day. election being determined by the bare act of seizure. But heriot due in respect of the estate of the tenant in the land is heriot-service; and for this the lord may either distrain upon the land to compel the tenant to deliver or procure the delivery of the heriot due upon the death of his predecessor, or he may choose for himself, and seize the heriot as his own property (the right of property vesting here also upon the election exercised and signified by the seizure). As heriot is something rendered upon the death of a tenant, so relief is a payment made by the heir upon the taking up (relevatio) by him of the inheritance. Strictly speaking, relief was payable in those cases only where the tenure was by knight's service. But the name was afterwards extended to a payment in the nature of a relief made by the heir in socage, by doubling the rent for the first year after the descent of the land,-in other words by paying one year's additional rent. For this payment a distress lies. Toll is a charge or impost upon goods in respect of some benefit conferred or right forborne with relation to those goods, by the party claiming such toll. Tolls of fairs or markets are a duty payable to the owners of the fair or market as a compensation for the mischief done to the soil by the holding of such fair or market. Cattle, if once off the land upon which they have trespassed, though driven off for the purpose of eluding a distress, cannot be taken even upon immediate pursuit. The occupier is left to his remedy by action. III. What may be distrained.-Not only cattle and dead chattels, but wild animals in which no person has any property may be distrained damage-feasant. In distresses for rent and other duties, that which is taken must be something in which a valuable property may exist. But animals of a wild nature, if reclaimed and become valuable (as deer kept in a private park), may be distrained. Whether animals reclaimed for the purpose of pleasure only can be distrained appears to admit of doubt. Lord Coke mentions dogs among the animals upon which no distress can be taken; but in the old work called the Mirror, to which he refers, the restriction would appear to be confined to cases where other distress could be taken. Fixtures and growing crops not being personal chattels were not at common law subject to distress. But it would appear that those fixtures which are removable, as between landlord and tenant, would be also liable to be taken as a distress; and by 11 Geo. II. c. 19, s. 8, distress for rent-service may be made of all sorts of corn and grass, hops, roots, fruit, pulse, or other product whatsoever growing in any part of the land demised. Toll-traverse is a compensation paid in some cases to the owner of the soil in respect of the transit or passage of goods. Toll-thorough is a toll for the transit of goods along a By the common law nothing could be distrained upon street or highway repaired by the party claiming the toll. for rent or other duty that could not be restored in as good Port-tolls, more commonly called port-duties, are tolls pay-pight as at the time of the distress being taken; and able in respect of vessels coming to or sailing from a port or a wharf of which the parties claiming the tolls, or those from whom they derive their title to such tolls, are the owners. In all these cases if the toll be withheld, any part of the therefore fruit, milk, and other matters of a perishable nature could not be distrained, nor money unless in a bag, because the identical pieces could not be known so as to be restored to the distrainee; nor could grain or flour be taken if out of the sack, or hay not being in a barn, or corn in the sheaf, because the quantity could not be easily ascertained, and they might be scattered or injured by the removal. None of these could be taken as a distress except for damage-feasant, though the same articles when contained in bags, boxes, carts, or buildings might be distrained upon for rent. But now by 2 W. & M. sess. 1, c. 5, s. 3, distress may be made of sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack or rick, or otherwise, upon any part of the land. Where a stranger's cattle are found upon the tenant's land they may be distrained upon for rent-service, provided they are there by the act or default of the owner of such cattle. If they come upon the land with the knowledge of their owner, or by breaking fences which are in repair, or which neither the landlord nor the tenant is bound to repair, they are immediately distrainable; but if they come in through defect of fences which the lord or tenant is bound to repair, the lord cannot take them for rent reserved upon a lease until they have lain for a night upon the land, nor until after notice given to the owner, if he can be discovered, to remove them. But in the case of a lord not bound to repair the fences distraining for an antient rent or service, and also in the case of a rent-charge, the cattle may be taken, after they have lain a night upon the land, without notice to their owner. Things necessary for the carrying on of trade, as tools and utensils, or for the maintenance of tillage, as implements of husbandry, beasts of the plough, and sheep as requisite to manure the land, are privileged from distress whilst other sufficient distress can be found. But this rule does not extend to a distress for a toll or duty arising in respect of the thing taken as a distress, or of things connected with it; as a distress of two sheep for market-toll claimed in respect of the whole flock, or of the anchor of a ship for port-duty due in respect of such ship. For the protection of tradesmen and their employers in the necessary transactions of society, property of which the distrainee has obtained the possession with a view to some service to be performed upon it by him in the way of his trade, is absolutely privileged from distress; as a horse standing in a smith's shop to be shod, or put up at an inn, or cloth sent to a tailor's shop to be made into clothes, or corn sent to a mill or market to be ground or sold. The goods of a guest at an inn are privileged from distress; but this exemption does not extend to the case of a chariot standing in the coach-house of a livery-stable keeper; nor does it protect goods on other premises belonging to the inn but at a distance from it; and even within the inn itself the exemption does not extend to the goods of a person dwelling there as a tenant rather than a guest. Goods in the hands of a factor for sale are privileged from distress; so goods consigned for sale, landed at a wharf, and placed in the wharfinger's warehouse. Beasts of the plough may be distrained where no other distress can be found. And it is sufficient if the distrainor use diligence to find some other distress. A distress is not said to be found unless it be accessible to the party entitled to distrain, the doors of the house being open, or the gates of the fields unlocked. Beasts of the plough may be distrained upon where the only other sufficient distress consists of growing crops, which though now subjected to distress, are not, as they cannot be sold until ripe, immediately available to the landlord. A temporary privilege from distress arises when the chattel is in actual use, as an axe with which a man is cutting wood, or a horse on which a man is riding. Implements in trade, as frames for knitting, weaving, &c., are absolutely privileged from distress whilst they are in actual use, otherwise they may be distrained upon if no other sufficient distress can be found. By 7 Ann. c. 12, s. 3, process whereby the goods of any ambassador or other public minister of any foreign prince or state, or of their domestic servants, may be distrained, seized, or attached, is declared to be null and void. But the privilege of a domestic servant of an ambassador does not invalidate a distress for the rent, rate, or taxes of a house occupied for purposes unconnected with the service. By 6 Geo. IV. c. 16, s. 74, no distress for rent made and levied after an act of bankruptcy upon the goods of any bankrupt shall be available for more than one year's rent accrued prior to the date of the fiat; but the party to whom the rent is due shall be allowed to come in as a creditor for the overplus of the rent due, and for which the distress shall not be available. Where a tenancy for life or at will is determined by death or by the act of the landlord, the tenant, or his personal representatives, may reap the corn sown before such determination, and therefore such corn though sold to a third person, cannot be distrained upon for rent due from a subsequent tenant. [EMBLEMENTS.] Neither the goods of the tenant nor those of a stranger can be distrained upon for rent if they are already in the custody of the law, as if they have been taken damagefeasant, or under process of execution. But although the landlord cannot distrain, yet by 8 Ann. c. 14, he has a lien or privilege upon the goods of his tenant taken in execu tion for one year's rent. [EXECUTION.] IV. Time of making a distress.-Rent is not due until the last moment of the day on which it is made payable. No distress therefore can be taken for it until the following day. And as a continuing relation of landlord and tenant is necessary to support a distress for rent-service, there could at common law be no distress for rent becoming due on the last day of the term. But now, by 8 Ann. c. 14, s. 6 and 7, any persons having rent in arrear upon leases for lives, for years, or at will, may, after the determination of such lease, distrain for the arrears, provided that such distress be made within six calendar months after the determination of the lease and during the continuance of the landlord's title or interest, and the possession of the tenant from whom such arrears are due. If the possession of the tenant continue in fact, it is immaterial whether that possession be wrongful and adverse, or whether it continues by the permission of the landlord; and if a part only of the land remain in the possession of the tenant, or of any person deriving his possession from the tenant, a distress for the whole of the arrears may be taken in such part during the six months. Where a tenant is entitled by the terms of his lease, or by the custom of the country, to hold over part of the land or buildings for a period extending beyond the nominal term, the original tenancy will be considered as continuing with reference to the land, &c. so retained, and the landlord may distrain at common law for the arrears during such extended period in the lands, &c. so held over, and he may distrain under the statute during six months after such partial right of possession has entirely ceased. When different portions of rent are in arrear the landlord may distrain for one or more of those portions, without losing his right to take a subsequent distress for the residue; so, although the first distress be for the rent iast due. But if there be a sufficient distress to be found upon the premises, the landlord cannot divide a rent accruing at one time into parts, and distrain first for a part and afterwards for the residue. If however he distrain for the entire rent, but from mistaking the value of the goods takes an insufficient distress, it seems that a second distress for the deficiency will be lawful although there were sufficient goods on the premises to have answered the whole demand at the time of the first taking; and it is clear that he may take such second distress upon goods which have come upon the premises subsequently to the first taking, if in the first instance he distrain all the goods then found thereon and for the entire rent, the amount of which exceeds the value of the goods first taken. A distress for rent or other duties or services can be taken only between sunrise and sunset; but cattle or goods found, damage-feasant may be distrained at any time of the day or night. By the common law the remedy by distress was in general lost upon the death of the party to whom it accrued. But the king and corporations aggregate never die; and as the law authorizes a surviving joint tenant to act as if he had been originally the sole owner, he may distrain for rent or other services accruing in the lifetime of his companion. The statutes of 32 H. VIII. c. 37, and 3 and 4 W. IV. c. 42, have extended the remedy by distress to husbands and executors in respect of rent accruing due to their deceased wives or testators. [RENT.] No distress can be taken for more than six years' arrears of rent; nor can any rent be claimed where non-payment has been acquiesced in for twenty years, 3 and 4 W. IV. c. 27. V. In what place a distress can be made.-The remedy being given in respect of property, not of the person, a distress for rent or other service could at common law be taken only upon the land charged therewith, and out of which such rent or services were sad to issue. But this restriction did not apply to the king, who might distrain upon any lands which were in the actual occupation of his tenant, either at the time of the distress or when the rent became due. The assumption of a similar power by other lords was considered oppressive, and it was ordained by the statute of Marlbridge, that no one should make distress for any cause out of his fee, except the king and his ministers thereunto specially authorized. The privilege of distraining in all lands occupied by the party chargeable, is communicated by 22 Car. II. c. 6; 26 Geo. III. c. 87; 30 Geo. III. c. 50; and 34 Geo. III. c. 75, to the purchasers of certain crown rents. At common law if the tenant or any other person seeing the lord or his bailiff come to distrain for rent or other service, drove the cattle away from the land holden, they might be distrained off the land. Not so when the cattle without being driven went off before they were actually taken, though the lord or bailiff saw the cattle upon the land (which for some purposes is a constructive possession). Nor if after the view the cattle were removed for any other purpose than that of preventing a distress. On the other hand, cattle of which the lord or bailiff has no view whilst they are on the land, although the tenant drove them off purposely to avoid a distress, could not be distrained. Under 8 Ann. c. 14, and 11 Geo. II. c. 19, where a lessee fraudulently or clandestinely carries off his goods in order to prevent a distress, the landlord may within five days afterwards distrain them as if they had still continued on the demised premises; provided they have not been (bona fide) sold for a valuable consideration. And by the 7th section of the latter statute, where any goods fraudulently and clandestinely carried away by any tenant or lessee, or any person aiding therein, shall be put in any house or other place, locked up or otherwise secured, so as to prevent such goods from being distrained for rent, the landlord or his bailiff may, in the day time, with the assistance of the constable or peace officer (and in case of a dwelling-house, oath being also first made of a reasonable ground to suspect that such goods are therein), break open and enter into such house or place, and take such goods for the arrears of rent, as he or they might have done if such goods had been put in an open field or place. To entitle the landlord to follow the goods, the removal must have taken place after the rent became due, and for the purpose of eluding a distress. It is not however necessary that a distress should be in progress, or even contemplated. Nor need the removal be clandestine. Although the goods be removed openly, yet if goods sufficient to satisfy the arrears are not left upon the premises, and the landlord is turned over to the barren remedy by action, the removal is fraudulent and the provisions of these statutes may be resorted to. These provisions apply to the goods of the tenant only. The goods of a stranger or of an under-tenant may be removed at any time before they are actually distrained upon, and cannot be followed. Where two closes are let by separate demises and separate rents, though such demises be made at the same time and are even contained in the same deed, a distress cannot be taken in one close for both rents. If a rent-charge or rent-service also issue out of land which is in the hands or separate possession of two or more persons, a distress may be taken for the whole rent upon the possession of any one of them. The lord may enter a house to distrain if the outer door be open, although there be other sufficient goods out of the house. It is not lawful to break open outer doors or gates; but if the outer door be open, an inner door may be forced. And where the lord having distrained is forcibly expelled, he may break open outer doors or gates in order to retake the distress. If a window be open, a distress within reach may be taken out at it. At common law a distress might be taken for rent in a street or other highway being within the land demised. But now, by the statute of Marlbridge, private persons are forbidden to take distresses in the highway. This statute applies only to distresses for rent or for services and not to toll. Nor does the statute make the distress absolutely void; for though the tenant may lawfully rescue cattle distrained in the highway, or may bring his action on the case upon the statute, yet if he brings trespass or replevin, it seems to be no answer to a justification or an avowry made in respect of the rent. No rent can be reserved out of an incorporeal hereditament; and therefore at common law the lord could not distrain for rent in a place in which the tenant had merely an incorporeal right-as a right of common. By 11 Geo. II. c. 19, s. 8, landlords are enabled to take a distress for rent upon cattle belonging to their tenants feeding upon any common appendant or appurtenant to the land demised. But in cases not within this enactment, the rule of the common law applies; and therefore upon a demise of a wharf and the appurtenances, with liberty to land and load goods, the landlord cannot distrain the tenant's barges lying opposite and attached to the wharf. VI. Mode of making a distress.—A distress may be made either by the party himself or his agent, and as distresses in manors were commonly made by the bailiff of the manor, any agent authorized to distrain is called a bailiff. The authority given to the bailiff is usually in writing, and is then called a warrant of distress; but a verbal authority, and even the subsequent adoption of the act by the party on whose behalf the distress is made, is sufficient. In order that the distrainee may know what is included in the distress, an inventory of the goods should be delivered, accompanied, in the case of a distress for rent, by a notice stating the object of the distress, and informing the tenant that unless the rent and charges be paid within five days, the goods and chattels will be sold according to law. This notice is required by 2 W. & M., sess. i. c. 5, s. 2, which enacts, that where any goods shall be distrained for rent due upon any demise, lease, or contract, and the tenant or owner of the goods shall not, within five days next after such distress taken, and notice thereof with the cause of such taking, left at the chief mansion house, or other most notorious place on the premises, replevy the same, with sufficient security to be given to the sheriff,-that after such distress and notice and expiration of the five days, the person distraining shall and may, with the sheriff or under-sheriff, or with the constable of the place, cause the goods to be appraised by two sworn appraisers, and after such appraisement may sell the goods distrained towards satisfaction of the rent, and of the charges of distress, appraisement, and sale, leaving any surplus in the hands of the sheriff, undersheriff, or constable, for the owner's use.' At common law, goods distrained were, within a reasonable time, to be removed to and confined in an enclosure called a pound, which is either a pound covert, i. e. a complete enclosure, or a pound overt, an enclosure sufficiently open to enable the owner to see, and, if necessary, to feed the distress, the former being proper for goods easily re moved or injured, the latter for cattle; and by 5 and 6 Will. IV. c. 59, s. 4, persons impounding cattle or animals in a common open or close pound, or in enclosed ground, are to supply them with food, &c., the value of which they may recover from the owner. By 11 Geo. II. c. 19, s. 10, goods distrained for any kind of rent may be impounded on any part of the tenant's ground, to remain there five days, at the expiration of which time they are to be sold, unless sooner replevied. The landlord is not however bound to remove the goods immediately after the expiration of the five days; he is allowed a reasonable time for selling. After the lapse of a reasonable time he is a tres passer if he retain the goods on the premises without the express assent of the tenant, which assent is generally given in writing. The 1 and 2 Ph. & M., c. 12, requires that no distress of cattle be removed out of the hundred, except to a pound overt in the same county, not above three miles from the place where such distress is taken, and that no cattle or other goods distrained at one time be impounded in several places, whereby the owner would be obliged to sue out several replevins. The 2 Will. & Mary, sess. 1, c. 5, s. 3, directs that corn, grain, or hay distrained be not removed, to the damage of the owner, out of the place where the same shall be found or seized, but be kept there until replevied or sold; and 11 Geo. II. c. 19, which gives a distress for rent-service upon growing crops, directs, ss. 8 and 9, that they shall be cut, gathered, and laid up, when ripe, in the barn or other proper place on such premises, or if none, then in some other barn, &c., to be procured for that purpose, and as near as may be to the premises, giving notice within one week of the place where such crops are deposited; and if the tenant, his executors, &c., at any time before the crops distrained are ripe and cut, pay or tender the rent, costs, and charges, the goods distrained are to be restored. In all other cases, if the rent or other duty be paid, or performed, or tendered to be paid or performed before the distress is impounded, a subsequent detainer is unlawful, and a subsequent impounding or driving to the pound is a trespass. the person aggrieved by such irregularity, &c., may recover satisfaction for the special damage sustained. And see Bradby on Distresses; Gilbert, Distr.; Bracton; Fleta, Coke upon Littleton; Bacon, Comyns, and Viner's Abridg ments; Willes's Reports; 6 Nevile and Mann 606. DITCH. [BASTION.] The statutes authorising the sale of distresses extend DITHMARSH (DITMARSKEN, Dan.), the most only to those made for rent. At common law distresses westerly of the four districts of the Danish duchy of Hol cannot in general be either sold or used for the benefit of stein, has the German ocean for its western boundary, and the party distraining. But a distress for fines and amercia- Holstein Proper for its eastern, to which last it was united ments in a court leet, or for other purposes of public bene-in 1459. On the north the Eider separates it from the fit, may be sold; and a special custom or prescription will duchy of Schleswig, and on the south the Elbe divides it warrant the sale of a distress in cases where the public has from the Hanoverian duchy of Bremen. Its area is about no immediate interest. 500 square miles, and its population about 47,000. It is protected against the inroads of the sea by strong dykes, is very productive in corn, pulse, linseed, &c., and rears a considerable number of cattle. Its subdivisions are the bailiwicks of North and South Dithmarsh. North Dithmarsh has thirteen parishes and four market-towns, with a population of about 22,500. The principal town is Heyde, in the heart of the bailiwick, which has a spacious marketplace, a church, and public school, with about 2900 inhabitants, and is the seat of administration: the three other towns are Lunden, near the Eider, with a church and school, and about 430 inhabitants; Büsum, on the sea, with a church and harbour, and about 320 inh.; and Weslingbüren, not far from the sea, with a church and public school, and about 640 inh. Close to the latter is Schilpe, a spot well known to navigators, at the mouth of the Eider South Dithmarsh is divided into thirteen parishes, and contains four market-towns, with a population of about 24,900. The chief town is Meldorf, at the mouth of the Miele; it is well built, and was formerly fortified, has a handsome church, a grammar-school, three other schools. public gardens, and about 2020 inhabitants. The other towns are Wörden, on an arm of the sea, with a small harbour, a church, public school, and about 850 inhabitants; Brunsbüttel, on the Elbe, across which there is a royal ferry, with a church, custom-house, a public school, and about 1500 inhabitants; and Marne, with a church and public school, and about 750 inhabitants. VII. Rights and Remedies of the Distrainee.-A distress made by a party who has no right to distrain, or made for rent or other service which the party offers to pay or perform, or made in the public highway, or upon goods privileged from distress either absolutely or temporarily, is called a wrongful distress. Where no right to distrain exists, or where the rent or duty is tendered at the time of the distress, the owner of the goods may rescue them or take them forcibly out of the possession of the distrainer, or bring an action of replevin, or of trespass, at his election. In replevin, the cattle or goods taken are to be redelivered to the owner upon his giving security by a replevin bond, for returning them to the distrainer, in case a return shall be awarded by the court; and therefore in this action damages are recovered only for the intermediate detention and the costs of the replevin bond. REPLEVIN.] In the action of trespass the plaintiff recovers damages to the full value of the goods; because upon such recovery, the property in the goods is transferred to the defendant. The 2 W. & M., sess. i. c. 5, s. 5, provides 'That in case of any distress and sale for rent pretended to be due, where n truth no rent is due, the owner of the goods so distrained and sold may, by action of trespass or upon the case, recover double the value of such goods, with full costs of suit.' For a wrongful distress in taking goods protected by being in a street or highway, or goods privileged from distress, the remedy is by an action on the statute, in which the plaintiff is entitled to an immediate return as in replevin. If the cattle or goods distrained cannot be found, the sheriff may take other cattle or goods in wither-nam (by way of counter-distress) of the same or of a different kind, belonging to the distrainor, and deliver them to the distrainee instead of his own. Another species of wrongful distress is recaption, or the taking of the same or other goods of the distrainee for the same causes pending an action of replevin, in which the legality of the first distress is questioned. Wherever a distress is wrongful, the owner of the goods may rescue them from the distrainer; but after they are actually impounded, they are said to be in the custody of the law, and must abide the determination of the law. Whether goods are rightfully or wrongfully distrained, to take them out of the pound is a trespass and a public offence. The proceeding by action is a more prudent course than making a rescue, even before an impounding, where any doubt exists as to the lawfulness of the distress. Independently of the danger of provoking a breach of the peace by the rescuer's thus taking the law into his own hands, he will be liable to an action for the injury sustained by the distrainer by the loss of the security of the distress, should the distress ultimately turn out to be lawful; and in such action, as well as in the action for poundbreach, the rescuer will be liable, under 2 W. & M. sess. i. c. 5, s. 4, to the payment of treble damages and treble costs. A distress for more rent, or greater services than are due, or where the value of the property taken is visibly disproportionate to the rent or other appreciable service, is called an excessive distress, for which the party aggrieved is entitled to recover compensation in an action on the case; but he cannot rescue, nor can he replevy or bring trespass. Upon a distress rightfully taken being afterwards irregularly conducted, the subsequent irregularity at common law made the whole proceeding wrongful, and the party was said to be a trespasser ab initio. But now, by 11 Geo. II., c. 19. where distress is made for rent justly due, and any irregularity or unlawful act is afterwards done by the party distraining or his agent, the distress itself is not to be deemed unlawful nor the party making it a trespasser; but P: C., No. 535 DITHYRAMBUS, the name of a hymn in honour of Bacchus, sung by a chorus of fifty men or boys as they danced round the blazing altar of the god: from this peculiarity it was also called the cyclic or circling chorus. The original subject of the song was the birth of Bacchus, as the name seems to have implied. (Plato, Legg. iii.) The music was Phrygian, and the accompaniment_originally the flute. (Aristot. Polit. viii. 7, 9.) The Dithyrambus is particularly interesting from the circumstance that Aristotle attributes to it the origin of the Greek tragedy. Tragedy and comedy,' says he (Poet. iv. 14), 'having originated in a rude and unpremeditated manner, the first from the leaders in the Dithyrambic hymns, the other from the Phallic songs, advanced gradually to perfection.' These leaders (EdoxovTEC), and not as has been wrongly inferred from the words of Aristotle, the whole chorus, recited trochaic tetrameters, and are to be considered as the immediate predecessors of the actors. [DRAMA] In the Appendix to Welker's Treatise on the Trilogy (Nachtrag zur Schrift über die Eschylische Trilogie, p. 228, and following), the reader will find a learned disquisition on the Dithyrambus, deformed however by some serfous errors. After the leading properties of the Dithyrambus had merged in the Greek tragedy, it became very bombastic, and in the Greek and even in modern languages the epithet Dithyrambic is a synonym for turgid and hyperbolical expressions. The ety mology of the word is unknown. DITRU'PA, a genus of Annelids, founded by the Rev M. J. Berkeley, and which, from its having been previously confounded with the species of an entirely distinct genus (Dentalium), and some circumstances respecting its capture in a living state, requires particular notice. Generic Character.-Shell, free, tubular, open at both ends Operculum fixed to a conical pedicellated cartilaginous body, thin, testaceous, concentrically striate. Branchia, twenty-two in two sets, not rolled up spirally flat, broadest at the base, feathered with a single row of cilia. Mantle rounded behind, slightly crisped, denticulated in front, strongly puckered on either side. Fascicles of bristles, six on each side. (Berkeley.) parallel with the north-west coast of Ireland, obtained by Captain A. Vidal, R.N., during the extensive soundings made by that officer in the summer of 1830, whilst in search of Aitkin's Rock, were placed in his hands, when he found among them several specimens of the shell of a testaceous animal, which proved to be the Dentalium subulatum of Deshayes, and identical with the Madeira specimens, the only points of difference being a paler hue, and an almost total absence of the constriction near the orifice, the former being, as Mr. Berkeley observes, exactly such as might be expected from the occurrence of the species in a higher latitude, and the latter so variable as not to throw any doubt on its specific identity. Having previously been convinced, from Mr. Lowe's specimen, that the animal was not a Dentalium, but an Annelid, Mr. Berkeley requested Captain Vidal to preserve in spirit during the following summer, when operations on the bank were to be resumed, whatever animals he should procure alive in sounding, and, if possible, specimens of the so-called Dentaliun, at the same time noting the depth at which they were taken. The result was the capture of the shell with the included animal, which enabled Mr. Berkeley to establish the genus named at the head of this article. The animals of the Madeira and British specimens proved to be perfectly identical. Habits, depth, &c.-It appears from Mr. Berkeley's paper, that the shells first handed to him by Captain Vidal occurred in fine sand, at various distances from the coast, in lat. 55, at great depths-from 60 to 120 fathoms. After speaking of the animals preserved in spirit, and stating that Captain Vidal noted the depth at which each specimen was taken, Mr. Berkeley remarks that the so-called Dentalium did not occur at any less depth than 634 fathoms, and twice (on one occasion off St. Kilda) it occurred at 171 fathoms. Nothing could be concluded as to habit, from the manner in which the shells were imbedded in the tallow (with which the lead was armed); but this was of the less consequence, says Mr. Berkeley, because it had appeared, from Mr. Lowe's information, that the animals are found in great numbers together, in masses of a conglomerate (if it may be so called) of mud and various marine substances, the broader end only appearing above the surface. Mr. Berkeley infers, from the great difference in the diameter, that the narrow or posterior end is gradually absorbed in the course of growth. Geographical Distribution.-Madeira, British seas, and probably a much more extensive range. Place in the Animal Series.-Mr. Berkeley is of opinion that, notwithstanding the resemblance of the shell to that of true Dentalia, it is most nearly allied to Serpula; but evidently distinct, in having an unattached shell (for there is no evidence to lead to a suspicion that it is attached, even in infancy), and especially in possessing a posterior as well as anterior aperture. He thinks that other species of socalled Dentalia may be found to belong to the genus Ditrupa. One at least, he observes, does so belong, viz., Dentalium Gadus, Mont. (Dent. coarctatum, Lam.). Mr. Berkeley thinks it highly probable that the other minute British Dentalia will prove to possess an animal of like structure, though possibly, even in that case, it would be requisite to place them in a distinct genus. Ditrupa subulata, magnified. Example. Ditrupa subulata, Berke.ey; Dentalium subr latum, Deshayes. DITTANY OF CRETE, the common name of the wooll laoiate plant called Origanum Dictamnus or Amaracus Dictamnus. DITTON, HUMPHREY, an eminent divine and mathematician, was born at Salisbury, May 29, 1675. He was an only son; and manifesting good abilities for learning, his father procured for him an excellent private education. It does not appear that he was ever at either of the universities, a circumstance owing, probably, to the religious principles of his parents. Contrary, it is understood, to his own inclination, but in conformity with his father's wishes, he chose the profession of theology; and he filled a Dissenting pulpit for several years at Tunbridge with great credit and usefulness. His constitution being delicate, and the restraints of his father's authority being removed-he also having married at Tunbridge-he began to think of turning his talents int another channel. His mathematical attainments having gained for him the friendship of Mr. Whiston and Dr. Harris, they made him known to Sir Isaac Newton, by whom he was greatly esteemed, and by whose recommendation and influence he was elected mathematical master of Christ's Hospital. This office he held during the rest of his life, which, however, was but short, as he died in 1715, in the 40th year of his age. Ditton was highly esteemed amongst his friends; and great expectations were entertained that he would have proved one of the most eminent men of his time. He however attained a high degree of celebrity, and published several works and papers of considerable value, of which the following list contains the principal. 1. On the Tangents of Curves, &c., 'Phil. Trans.,' vol. 23. 2. A Treatise on Spherical Catoptrics, in the Phil. Trans.' for 1705; from whence it was copied and reprinted in the Acta Eruditorum,' 1707. 3. General Laws of Nature and Motion, 8vo. 1705. Wolfius mentions this work, and says that it illustrates and renders easy the writings of Galileo, Huygens, and the Principia' of Newton. 4. An Institution of Fluxions, containing the first Principles, Operations, and Applications of that admirable Method, as invented by Sir Isaac Newton, 8vo. 1706. 5. In 1709 he published the Synopsis Algebraica' of John Alexander, with many additions and corrections. 6. His Treatise on Perspective' was published in 1712 In this work he explained the principles of that art mathematically; and besides teaching the methods then generally practised, gave the first hints of the new method, afterwards enlarged upon and improved by Dr. Brook Taylor, and which was published in the year 1715. 7. In 1714 Mr. Ditton published several pieces, both theological and mathematical, particularly his Discourse on the Resurrection of Jesus Christ' and the New Law of Fluids, or a Discourse concerning the Ascent of Liquids, in exact Geometrical Figures, between two nearly contiguous Surfaces.' To this was annexed a tract to demonstrate the impossibility of thinking or perception being the result of any combination of the parts of matter and motion: a subject which was much agitated about that time. To this work was also added an advertisement from him and Mr Whiston concerning a method for discovering the longitude, which it seems they had published about half a year before. This attempt probably cost our author his life; for though it was approved and countenanced by Sir Isaac Newton before it was presented to the Board of Longitude, and the method has since been successfully put in practice in finding the longitude between Paris and Vienna, yet that board determined against it. The disappointment, together with some ridicule (particularly in some verses written by Dean Swift), so far affected his health, that he died in the ensuing year, 1715 In the account of Mr. Ditton, prefixed to the German translation of his discourse on the Resurrection, it is said that he had published, in his own name only, another method for finding the longitude; but this Mr. Whiston denied. However, Raphael Levi, a learned Jew, who had studied under Leibnitz, informed the German editor that he well knew that Ditton and Leibnitz had made a delineation of a machine which he had invented for that purpose, that it was a piece of mechanism constructed with many a, the animal; b, one of the branchia; c, a portion of the anterior part of wheels like a lock, and that Leibnitz highly approved the mantle; d, operculum. (Zool. Journ. vol. v. |