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be forcibly attacked in his person or property, it is lawful for him to repel✅ force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray. (d) For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connex- [4] ion) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly, it is held an excuse for breaches of the peace, nay even for homicide itself; but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an ag.


II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant : in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace. (e) The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing him. self justice his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants, concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again, without force or terror, the law favours and will justify his proceeding. But, as the pub. lic peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature for these reasons it is provided, that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, [ 5 ] or endanger the peace of society. If, for instance, my horse is ta ken away, and I find him in a common, a fair, or a public inn, I may law. fully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen ; (ƒ) but must have recourse to an action at law.

d 2 Roll. Abr. 546. 1 Hawk. P. C. 131.
e 3 Inst. 134. Hal. Anal. § 46.
f 2 Roll. Rep. 55, 56, 203. 2 Roll. Abr. 565, 566.

See Reeve's Domestic Relations, and Comyn's Digest, titles Baron & Feme, Master & Ser vant, &c.

(3) In the case of personal property improperly detained or taken away, it may be retaken from the house and custody of the wrongdoer, even without a previous request; but unless it was seized or attempted to be seized forcibly, the owner cannot justify doing any thing more than gently laying his hands on the wrongdoer in order to recover it, 8 T. R. 18. 2 Roll. Abr. 56. 208. 2 Roll. Abr. 565. pl. 50. 2 Leonard, 202. Selw. N. P. tit. Assault and Battery; nor can he without leave enter the door of a third person, not privy to the wrongful detainer, to take his goods therefrom. 2 Roll. Abr, 55, 6, 208, 2 Roll. Abr. 565. I. pl. 2. Bac. Ab. Trespass, U.

III. As recaption is a remedy given to the party himself, for an injury to his personal property, so thirdly, a remedy of the same kind for injuries to real property, is by entry on lands and tenements, when another person without any right has taken possession thereof. This depends in some measure on like reasons with the former; and like that too, must be peace. able and without force. There is some nicety required to define and distinguish the cases in which such entry is lawful or otherwise; it will there. fore be more fully considered in a subsequent chapter; being only men. tioned in this place for the sake of regularity and order.

IV. A fourth species of remedy by the mere act of the party injured, is the abatement, or removal of nusances. What nusances are, and their several species, we shall find a more proper place to inquire under some of

(4) With respect to land and houses also, resumption of possession by the mere act of the party is frequently allowed. Thus, if a tenant omit at the expiration of his tenancy to deliver up possession, the landlord may legally, in his absence, break open the outer-door and resume possession, though some articles of furniture remain therein; and if the landlord put bis cattle on the land, and the tenant distrain them as damage-feasant, he inay be sued. 1 Bing. R. 158. 7 T. R. 431, 2 1 Price R. 53. Andr. 109 6 Taunt 202 If the landlord, in resuming pos session, be guilty of a forcible entry with strong haud, or other illegal breach of the peace, he will be liable to an indictment. 7 T. R. 432. 3 T. R. 295 6 Taunt. 202. 8 T. R. 364. 403. But the circumstance of the owner of property using too much force in regaining possession, but taking care to avoid personal injury to the party resisting, will not enable the latter to see him. See cases in last two notes. But if any unnecessary violence to the person be used in rescuing or defending possession of real or personal property, the party guilty of it is liable to be sued. 8 T. R. 299. id. 78. 1 Saund. 296 n. 1. So, as the law allows retaking of the possession of land, it also sanctions the due defence of the possession thereof; and therefore, though if one enter into my ground, I must request him to depart before I can lay hands on him to turn him out, yet if he refuse I may then push him out, and if he enter with actual force I need not first request him to be gone, but may lay hands on him immediately. 8 T. R. 78. 1 Salk. 641. (5) Post, 174.


(6) Thus, in case of a public nuisance, if a house be built across a highway any person may pull it down; and, it is said, he need not observe particular care in abating it, so as to prevent injury to the materials. And though a gate, illegally fastened, might have been opened without cutting it down, yet the cutting would be lawful. However, it is a general rule, that the abatement must be limited by its necessity, and no wanton or unnecessary injury must be committed. 2 Salk. 453. As to private nuisances, they also may be abated; and therefore it was recently held, that if a man in his own soil erect a thing which is a nuisance to another, as by stopping a rivulet, and so diminishing the water used by the latter for his cattle, the party injur ed may enter on the soil of the other and abate the nuisance and justify the trespass and this right of abatement is not confined merely to a house, inill, or land. 2 Smith's Rep. 9. 2 Ro!. Ab. 565. 2 Leon. 202. Com. Dig. Pleader. 3 M. 42. 3 Lev. 92. So it seems that a libellous print or paper, affecting a private individual, may be destroyed, or, which is the safer course, taken and delivered to a magistrate. 5 Coke, 125. b. 2 Camp. 511. Per Best, J. in the Ear! Lonsdale v. Nelson, 2 Bar. & Cres. $11, "nuisances, by an act of commission, are committed in defiance of those whom such nuisances injure, and the injured party may abate then, without notice to the person who committed them; but there is no decided case which sanctions the abatement, by an individual, of nuisances from omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees, is an unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it; in such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances persons should not take the law into their own hands, but follow the advice of lord Hale and appeal to a court of justice;" and see further, 3 Dowl. & R. 556. And it was held in the same case, that where a person is bound to repair works connected with a port aud neglects to do so, another person cannot justify an entry to repair with out averring and proving that immediate repairs were necessary, and the parties' right to use the port. As to cutting trees, "if the boughs of your trees grow out into my land, I may cut them." Per Croke, J. Rol. Rep. 394. 3 Buls. 198. Vin. Ab. Trees, E. & tit. Nuisance, W. 2. pl 3.

The abater of a private nuisance cannot remove the materials further than necessary; or convert them to his own use. Dalt. c. 50. And so much only of the thing as causes the nuisance should be removed; as if a house be built too high, only so much of it as ts too high should be pulled down. 9 Rep. 53. God. 221. 2 Stra. 686, Chitty.

the subsequent divisions." At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nusance; and such nusance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it. (g) If a house or wall is erected so near to mine that it stops my ancient lights, which is a private nusance, I may enter my neighbour's land, and peaceably pull it down. (h) Or if a new gate be erected across the public highway, which is a common nusance, any of the king's subjects passing that way, may cut it down and destroy it. (?) And the reason why the law al. [ 6 ] lows this private and summary method of doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice.

V. A fifth case, in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distreining cattle or goods for non-payment of rent, or other duties; or, distreining another's cattle da

g Rep. 101. 9 Rep. 55.


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(7) Post, 216.

(8) As to distresses in general see Gilbert on Distresses by Hunt; Bradby on Dist.: Com. Dig. Distress; Bac. Ab. Distress; Vin. Ab. Distress; 2 Saunders, index, Distress; Wilkinson on Replevin. As the law allows a creditor to arrest the person of his debtor as a security for his being forthcoming at the determination of the suit; so in certain cases, it permits a landlord to distrain for arrear of rent, in order to compel the payment of it. It is laid down that the remedy for recovery of rent, by way of distress, was derived from the civil law: for anciently, in the feudal law, the neglect to attend at the lord's courts, or not doing feudal service, was a forfeiture of the estate; but these feudal forfeitures were afterwards turned into distresses according to the pignotary method of the civil law, that is, the land let out to the tenant is hypothecated, or as a pledge in his hands, to answer the rent agreed to be paid to the landlord, and the whole profits arising from the land are liable to the lord's seizure for the payment and satisfaction of it. Gilb. Dis. 2. Gilb. Rents, S. Bacon on Gov. 77. Vigillius, 257 271. 326. Cromp. Int. 9. 2 New. R. 224. The distress could not at common law, before the stat. 2 W. & M. c. 5. be sold, but could only be impounded and detained, in order to induce the tenant to perform the feudal service. Distresses, therefore, were at common law only allowed when the relation of landlord and tenant subsisted, and when consequently there remained feudal service to be performed; and hence the necessity at the present day, that the landlord distraining should, at the time of the distress, be entitled to the legal reversion; and hence the consequence that if a landlord, after rent has become due and before payment, conveys his legal estate to another, he cannot distrain. Gilb. Action Debt, 411. Bro. Debt, pl 93. Vaughan, 40. Bac. Ab. Dis. tress, A. And for the same reason, it is necessary to aver in an avowry and cognizance, that at the time of the distress the tenancy subsisted. The common law was altered as far as regards tenants holding over, by the 8 Ann. c. 14. which provided, that if a person retain possession of the estate after the expiration of his tenancy, the landlord, if his interest continue, may distrain within six months. Before this statute it was usual, and still may be expedient, to provide that the last half year's rent shall be paid at a day prior to the determination of the lease, so as to enable the landlord to distrain before the removal of the tenant. Co. Lit. 47. b. If by agreement or custom the tenant has an away going crop, and right to hold over to clear the same, the landlord may, during such excrescence of the term, distrain at common law. 1 Hen. Bla. 3. So the 11 Geo. II. c. 19. s. 18. enables a landlord to distrain for double rent, if a tenant do not deliver up possession after the expiration of his own notice to quit, by which he incurs doable rent so long as he holds over. When a lessor has not the legal estate or a reversion, he should reserve a power to distrain, which will entitle him to do so Co. Lit. 47. a. 5 Co. 3. But though the principal object of a distress was to compel the performance of feudal services, and consequently if reat be reserved on a letting merely of personal property, no distress can be taken. 5 Co. 17. 3 Wils. 27. Yet a distress may be made for rent of a ready furnished house or lodging, because it is then considered that the rent issues out of the principal, the real properperty demised. 2 New. Rep. 224.

Accepting a note of hand, and giving a receipt for the rent, does not, till payment, preclude the landlord from distraining; and so if the landlord accept a bond; but a judgment, obtained on either of such instruments, would preclude the right of distress. See Bull. N. P. 182. An agreement to take interest on rent in arrear, does not take away the right of distress. 2 Chit. R. 245. Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had in equity. Per Comyns, B. Exch. Trin. 5 & 6 Geo. II. 1 Selw. N. P. 6 ed. 673.

To entitle a person to distrain for non-payment of money, it must be due under a demise, and

mage-feasant, 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 things may be distreined; 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 wrongdoer 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 a former Book, (k) that distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges 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 an universal principle, that a distress may be

taken for any kind of rent in arrear; the detaining whereof beyond [7] the day of payment is an injury to him that is entitled to receive it."

2. For neglecting to do suit to the lord's court, (1) or other certain personal service, (m) the lord may distrein, of common right. 3. Foramercements 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 distrein 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 for assessments made by commissioners of sewers, (o) 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 (q) are partly analogous to the ancient distress at common law, j The thing itself taken by this process, as well as the process itself, is in our law-books very frequently called a distress. k Book II. ch. 3. 1 Bro. Abr. tit, distress, 15. m Co. Litt. 47. o Stat 7 Aun. c. 10.

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p Stat. 43 Eliz. c. 2.

n Brown), 36.
q 1 Burr. 589.

for rent fixed and certain in its nature; and therefore, if a person be let into possession under an agreement for a lease which does not contain words of imunediate demise, no distress can be made, unless from a previous payment of reat or other circumstance, a tenancy from year to year can be inferred, and the only remedy is by action for use and occupation. 2 Taunt 148. 5 B. & A 322. 13 East, 19. So as Lord Coke quaintly says, (Co. Lit. 96. a.) it is a maxim in law, that no distress can be taken for any services that are not put into certainty, nor can be reduced to any certainty, for id certum est quod certum reddi potest, but yet in some cases there may be a certainty in uncertainty. Therefore if a man hold land, paying so much per acre, although in the terms of the demise the, number of acres be not fixed, the lord may distrain. Vin. Ab. Distress, E. See form of avowry, 3 Chitty on Pl. 4th edit. 1051. But where an es tate has been let without in any way fixing the amount of rent, the only remedy is by action.

Chitty. (9) The remedy by distress is limited to a Lessor.-If a Lessee assign his term he cannot distrein otherwise, if he has underlet the premises. See Book 2. p. 42. & Co. Litt. 162. b. n. 6. (10) Where cattle have trespassed on a party's land, it is not advisable to distrain, where his title to the locus in quo is doubtful, but the party should proceed by action of trespass on the case. 1 Saund 346. e. n. 2. So also, no goods or chattels that were removed from the premises, after the determination of the lease, are subject to distress, for rent previously accrued.

as being repleviable and the like; but more resembling the common law process of execution, by seising and selling the goods of the debtor under a writ of fieri facias, of which hereafter.

2. Secondly; as to the things which may be distreined, or taken in distress, we may lay it down as a general rule, that all chattels personal are fiable to be distreined, unless particularly protected or exempted. Instead therefore of mentioning what things are distreinable, 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 distreined is presumed to be the property of the wrongdoer, it will follow that such things wherein no man can have an absolute and valuable property as dogs, cats, rabbits, and all animals feræ naturæ) cannot be distreined. Yet if [ 8 ] deer (which are feræ naturæ) are kept in a private inclosure 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 distreined for rent. (s) s Davis v. Powel. C. B. Hil. 11 Geo. II. (12)

r Co. Litt. 47.

(11) 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, I Price, 277. 1 M. & S. 711; however, growing corn, sold under a writ of fi. fa, cannot be distrained unless the purchaser 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 Ann. c. 14 s. 1. no 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 landlord is entitled to be paid his whole rent, without deducting poundage, 1 Stra. 643. rent 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 demand of the rent, an action on the case lies against him. Vin. Ab. Dist. c. 3. Stra. 97 3 B & A 440 But no specific and formal notice is necessary. 3 B. & A. 645. & Moore, 473 2 B. & B. 67 S. C. 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 his 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 him out of the money levied, and in the sheriff's hands, Cas Tem. 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, 4. 5.


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 prove for the excess. 1 Geo. IV. c. 16 sect. 74. and see ante, 2 Book, 473.

For 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, or 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 3d section, the sheriff may sell, on condition of such crops being consumed on the land. The 6th section provides, that landlords shall not distrain for rent on the purchaser of any such crops, sold according to 3d section; nor on articles or cattle, &c. employed for the purpose of consuming such crops.

By the 7 Ann. c. 12. s. 3. it is enacted and declared, that process of distress against the goods of any ambassador or other public minister of a foreign state, or of their domestic servants, shall be void. But the goods to entitle them to protection must be for the necessary convenience of the ambassador or other public minister: and in the late war, where a British-born subject, employed as first chorister at the Portuguese ambassador's chapel, with a salary, rented and occupied a house, and let part of it in lodgings, and a distress was levied on his goods for a poorrate; it was held that they were not protected by the statute, even assuming him to be a domes. tic servant of the ambassador. 2 Dow. & Ryl 833. 1 B. & C. 554. S. C. Chilty.

(12) See this case fully reported, Willes Rep. 46.

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