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 connexion) makes it lawful in him to do himself that immediate justice, to which he "is prompted by nature, and which no pru- [ *4 ] dential 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 aggressor (2).

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, whereever 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 himself 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 public 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 [ 5 ] must occasion strife and bodily contention, or endanger the peace

of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully 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 (3).

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

(c) 3 Inst. 134. Hal. Anal. ◊ 46.

(2) See 2 R. S. 660. § 3, and book 4. note 6, p. 182.

(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 seised or attempted to be seized forcibly, the owner cannot justify doing any thing more than gently laying his hands

(f) 2 Roll. Rep. 55, 56. 208. 2 Roll. Abr. 565, 566.

on the wrongdoer in order to recover it, 8 T. R. 78. 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, F.

person without any right has taken possession thereof (4). This depends in some measure on like reasons with the former; and like that too, must be peaceable and without force. There is some nicety required to define and distinguish the cases, in which such entry is lawful or otherwise; it will therefore be more fully considered in a subsequent chapter (5); being only mentioned 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 (6). What nusances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions (7). 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 peace-
ably 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 (i). *And the [ *6 ]
reason why the law allows 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 imme-
diate 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 (8); or, distreining another's cattle

(g) Rep. 101. 9 Rep. 55.
(h) Salk. 459.

(i) Cro. Car. 184.

(8) As to distresses in general, see Gilbert the consequence that if a landlord, after rent
on Distresses by Hunt; Bradby on Dist.; has become due and before payment, conveys
Com. Dig. Distress; Bac. Ab. Distress; Vin. his legal estate to another, he cannot distrain.
Ab. Distress; 2 Saunders, index, Distress; Gilb. Action Debt,.411. Bro. Debt, pl. 93.
Wilkinson on Replevin. As the law allows a Vaughan, 40. Bac. Ab. Distress, A. And
creditor to arrest the person of his debtor as a for the same reason, it is necessary to aver in
security for his being forthcoming at the de- an avowry and cognizance, that at the time of
termination of the suit; so in certain cases, it the distress the tenancy subsisted. The com-
permits a landlord to distrain for arrear of mon law was altered as far as regards tenants
rent, in order to compel the payment of it. It holding over, by the 8 Ann. c. 14. which pro-
is laid down that the remedy for recovery of vided, that if a person retain possession of the
rent, by way of distress, was derived from the estate after the expiration of his tenancy, the
civil law; for anciently, in the feudal law, the landlord, if his interest continue, may distrain
neglect to attend at the lord's courts, or not within six months. Before this statute it was
doing feudal service, was a forfeiture of the usual, and still may be expedient, to provide
estate; but these feudal forfeitures were after that the last half year's rent shall be paid at a
wards turned into distresses according to the day prior to the determination of the lease, so
pignotary method of the civil law, that is, the as to enable the landlord to distrain before the
fand let out to the tenant is hypothecated, or removal of the tenant. Co. Lit. 47. b. If by
as a pledge in his hands, to answer the rent agreement or custom the tenant has an away
agreed to be paid to the landlord, and the going crop, and right to hold over to clear the
whole profits arising from the land are liable same, the landlord may, during such excre-
to the lord's seizure for the payment and sa- scence of the term, distrain at common law.
tisfaction of it. Gilb. Dis. 2. Gilb. Rents, 3. 1 Hen. Bla. 8. So the 11 Geo. II. c. 19. s. 18.
Bacon on Gov. 77. Vigillius, 257. 271. 326. enables a landlord to distrain for double rent,
Cromp. Int. 9. 2 New. R. 224. The distress if a tenant do not deliver up possession after
could not at common law, before the stat. 2 W. the expiration of his own notice to quit, by
& M. c. 5. be sold, but could only be impound- which he incurs double rent so long as he
ed and detained, in order to induce the tenant holds over. When a lessor has not the legal
to perform the feudal service.* Distresses, estate or a reversion, he should reserve a pow-
therefore, were at common law only allowed er to distrain, which will entitle him to do so.
when the relation of landlord and tenant sub- Co. Lit. 47. a. 5 Co. 3. But though the prin-
sisted, and when consequently there remained cipal object of a distress was to compel the per-
feudal service to be performed; and hence the formance of feudal services, and consequent-
necessity at the present day, that the landlord ly if rent be reserved on a letting merely of
distraining should, at the time of the distress, personal property, no distress can be taken. 5
be entitled to the legal reversion; and hence Co. 17. 3 Wils. 27. Yet a distress may be
rent reserved out of any lands or tenements,
shall not be paid or rendered when due, the
person entitled thereto may distrain for the
same. Does not this authorize a distress even
where there is no reversion in the owner of
the rent? No distress for rent can be made
unless the warrant to distrain be accompanied
by an affidavit of the amount due, and of the
time when it became due. 2 R. S. 501, § 8.
4

*See 2 R. S. 500, detailing the mode of proceeding on distress for rent. By that act it is provided (§ 1), that within 6 months after the determination of any lease for life, years, or at will, any one to whom rent is due on such demise, may distrain either the goods remaining on the premises, or such as have been removed, in the same way as if the lease had not ended. By 1 R. S. 747, § 18, it is enacted that when any certain services, or certain VOL. II.

abolished

damage-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 the day of payment is an injury to him that is entitled to receive it (9).. 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. For amercements 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 sus(5) 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.

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 pro-
perty demised. 2 New. Rep. 224.

Accepting a note of hand, and giving a re-
ceipt for the rent, does not, till payment, pre-
clude 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 dis-
tress. 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 for rent fixed and certain in its nature; and therefore, if a person be let into possession under an agreement for a lease which

(7) Bro. Abr. tit. distress, 15.
(m) Co. Litt. 47.
(n) Brownl. 36.

does not contain words of immediate demise, no distress can be made, unless from a previous payment of rent 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 estate has been let without in any way fixing the amount of rent, the only remedy is by action. (9) See, however, 2 book, p. 42. and Co. Lit. 162, b. n. 6.

See accordingly 2 R. S. 580, § 2.

tained (10). 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, 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 faciaș, of which here

2. Secondly; as to the things which may be distreined, or taken in distress (11), we may lay it down as a general rule, that all chattels personal are liable 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,