[8] cats, rabbits, and *all animals fere nature) cannot be distreined. Yet if 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 merchandize, that they may be distreined for rent (s). 2. Whatever is in the personal use or occupation of any man, is for the time privileged and protected from any distress; as an axe with which a man is cutting wood, or a horse while a man is riding him. But horses, drawing a cart, may (cart and all) be distreined for rent-arrere; and also, if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another's grounds, the horse (notwithstanding his rider) may be distreined and led away to the pound (13). Valuable things in the way of trade shall not be liable to distress. As a horse standing in a smith's shop to be shoed, or in a common inn; or cloth at a taylor's house; or corn sent to a mill or a market. For all these are protected and privileged for the benefit of trade; and are supposed in common presumption not to belong to the owner of the house, but to his customer (14). But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distreinable by him for rent: for otherwise a door would be open to infinite frauds upon the landlord; and the stranger has his

(3) Davis v. Powel. C. B. Hil. 11 Geo. II. (12).

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

(13) But this doctrine is contrary to Sayer Rep. 139. 2 Keb. 596. Cro. Eliz. 596. Co. Litt. 47. a. Rol. Ab. Distress, A. pl. 4; and was expressly overruled in 6 Term. R. 138. on the ground that the distraining a horse, as damage-feasant, whilst any person is riding him, would perpetually lead to a breach of the peace. And it has been held, that nets or ferréts cannot be taken damage-feasant in a war ren, if they are in the hands of the person using them, Harg. Co. Litt. note 13. Cro. Eliz. 550. So a loom cannot be distrained while in the hands of the weaver, Willes, 517; nor wearing apparel, if in actual use; but if put off, though only for the purpose of repose, it is liable to be distrained. 1 Esp. Rep. 206. Peake's Rep. 36. S. C.

(14) As to this exception in favour of trade, see Gilb. Dis. by Hunt, 39; so cattle and goods of a guest at an inn are not distrainable for rent, but a chariot or horses standing at livery are not exempt. 3 Burr. 1498. Mr. Sergt. Williams, in 2 Saund. 290. n. 7. suggests, that it should seem that at this day a court of law would be of opinion, that cattle belonging to a drover being put into ground with the consent of the accupier, to graze only one night on their way to a fair or market, are not liable to the distress of the landlord for rent; and lord Nottingham intimated the same opinion in 2 Vern. 130; and Mr. Christian, in his edition, has the following note of a decision to the same effect: "Cattle driven to a distant market, and put into land to rest for one night, cannot be distrained for rent by the owner of the land, such protection being absolutely for the public interest." Tate v. Gleed. C. P. Hil. 24 Geo. III. Gilb. Dis. by Hunt, 47. It was before held, that cattle going to London,

(t) 1 Sid. 440.

and put into a close with the consent of the landlord and leave of the tenant, to graze for a night, might be distrained by the landlord for rent, 3 Lev. 260. 2 Vent. 50. 2 Lutw. 1161; but the owner of the cattle was afterwards relieved in equity on the ground of fraudulent connivance and concealment of the demand for rent by the landlord, and he was decreed to pay all costs both of law and equity. 2 Vern. 129. Prec. Ch. 7. Gilb. Dis. by Hunt, 47. As courts of law now take notice of fraud as well as courts of equity, when it can be fully proved, there would now be the same result at law.

Goods of a principal in the hands of a factor are privileged from distress for rent due from such factor to his landlord, on the ground that the rule of public convenience, out of which the privilege arises, is within the exception of a landlord's general right to distrain, and therefore that such goods are protected for the benefit of trade. 6 Moore Rep. 243. 3 B. & B. 75. S. C. So goods landed at a wharf and consigned to a broker, as agent of the consignor, for sale, and placed by the broker in the wharfinger's warehouse for safe custody until an opportunity for selling them should occur, are not distrainable for rent due in respect of the wharf and warehouse, as they were brought to the wharf in the course of trade. Bing. 283. So goods carried to be weighed, even at a private beam, if in the way of trade, are exempt; so is a horse that has carried corn to a mill to be ground, and during the grinding of the corn is tied to the mill-door. Cro. Eliz. 549. 596. Goods in a public fair are exempt from distress, unless for toll duc from the owner. 2 Lutw. 1380. Goods in possession of a carrier are also exempt, and this though the carrier be not a public one. 1 Salk, 249,

remedy over by action on the case against the tenant, if by the tenant's default the chattels are distreined, so that he cannot render them when called upon (15). With regard to a stranger's beasts which are found on the tenant's land, the following distinctions are however taken. If they are put in by consent of the owner of the beasts, they are distreinable immediately afterwards for rent-arrere by the landlord (v). So also if the stranger's cattle break the fences, and commit a trespass by coming on the land, they are distreinable immediately by the lessor for his tenant's rent, as a punishment to the owner of the beasts for the wrong committed through his negligence (u). But if the lands were not *suffi- [ *9 ] ciently fenced so as to keep out cattle, the landlord cannot distrein them, till they have been levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have lain down and rose up to feed; which in general is held to be one night at least (16): and then the law presumes, that the owner may have notice whether his cattle have strayed, and it is his own negligence not to have taken them away. Yet, if the lessor or his tenant were bound to repair the fences and did not, and thereby the cattle escaped into their grounds, without the negligence or default of the owner; in this case, though the cattle may have been levant and couchant, yet they are not distreinable for rent, till actual notice is given to the owner that they are there, and he neglects to remove them (w): for the law will not suffer the landlord to take advantage of his own or his tenant's wrong (17). 4. There are also other things privileged by the ancient common law; as a man's tools and utensils of his trade, the axe of a carpenter, the books of a scholar, and the like: which are said to be privileged for the sake of the public, because the taking them away would disable the owner from serving the common

(v) Cro. Eliz. 549. (u) Co. Litt. 47.

(15) As if horses or cattle are sent to agist, they may be immediately distrained by the landlord for rent in arrear, and the owner must seek his remedy by action against the farmer; the principle of this rule extends to public livery stables, to which, if horses and carriages are sent to stand, it is determined that they are distrainable by the landlord, as if they were in any other place,3 Burr, 1498; so upon the same principle the goods of lodgers, or any other person, on the premises, are liable to be distrained; and to exempt goods from distress on the ground of their being in an inn, they must be within the very precints of the inn, and not on other premises at a distance belonging to it, Barnes, 472; and even within the inn itself the exemption does not extend to a person dwelling therein, as a tenant, rather than a guest. 1 Bla. Rep. 484.

As to the remedy over by an under-tenant or lodger, see the cases cited in 3 Bar. & Cres. 789. in which it was held, that where the tenant of premises had underlet a part by deed, and the original landlord distrained for rent upon the under-tenant, the latter could not support assumpsit against his immediate lessor, upon an implied promise to indemnify him against the rent payable to the superior Landlord,

(w) Lutw. 1580.

(16) Levant and couchant in this sense means, that the cattle must be lying down and rising up on the premises for a night and a day, without pursuit made by the owner of them. Gilb. Dis. by Hunt, 3d edit. 47.

(17) In the case of Poole v. Longuevill, 2 Saund. 289. the contrary was determined, but that case was overruled in 2 Lutw. 1580. and the result of the cases seems to be, that if a stranger's beasts escape into another's land, by default of the owner of the beasts, as by breaking the fences, otherwise sufficient, they may be distrained for rent immediately, without being levant and couchant; but that if they escape there by default of the tenant of the land, or for want of his keeping a sufficient fence, then they cannot be distrained for rent or service of any kind till they have been levant and couchant, nor afterwards by a landlord for rent on a lease, unless the owner of the beasts neglect or refuse, after actual notice, to remove them within a reasonable time; but it is said, that such notice is not necessary where the distress is by the lord of the fee, or by the grantee of a rent-charge. 2 Lutw. 1573. Co. Litt. 47. b. n. 3. Gilb. Dis. by Hunt, 3d edit. 45. 2 Saund. 290. n. 7. 285. n. 4. See further, Vin. Ab. Fences.

wealth in his station (18). So, beasts of the plough (19), avería carucae, and sheep, are privileged from distresses, at common law (x); while dead goods, or other sort of beasts, which Bracton calls catalla otiosa, may be distreined. But as beasts of the plough may be taken in execution for debt, so they may be for distresses by statute, which partake of the nature of executions (y). And perhaps the true reason why these and the tools of a man's trade were privileged at the common law, was because the distress was then merely intended to compel the payment of the rent, and not as a satisfaction for its non-payment and therefore, to deprive the party of the instruments and means of paying it, would counteract the very end of the distress (z). 5. Nothing shall be distreined for rent, which may not be rendered again in as good plight as when it was distreined:

for which reason milk, fruit, and the like, cannot be distreined, a [*10] distress at *common law being only in the nature of a pledge or security, to be restored in the same plight when the debt is paid. So, anciently, sheaves or shocks of corn could not be distreined, because some damage must needs accrue in their removal, but a cart loaded with corn might; as that could be safely restored. But now by statute 2 W. & M. c. 5. corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distreined as well as other chattels (20), (21). 6. Lastly, things fixed to the freehold may not be distreined; as caldrons, windows, doors, and chimney-pieces: for they savour of the realty (22), (z) Stat. 51 Hen. III. st. 4. de districtione scacca

ria.

(18) A stocking frame, Willes, 512. or a loom, 4 T. R. 565. being implements of trade, cannot be distrained; but it must be observed, that utensils and implements of trade may be distrained where they are not in actual use, and no other sufficient distress can be found on the premises. Co. Litt. 47. a. 4T. R. 565, And it should seem, that if there be reasonable ground for presuming there are not sufficient other goods, the party may distrain implements of trade, and is not bound to sell the other goods first. 6 Price Rep. 3. 2 Chitty's R. 167. And this rule of exemption does not extend to cases where a distress is given in the nature of an execution by any particular statute, as for poor-rates and the like, 3 Salk. 136. 1 Burr. 579. Lord Raym. 384. 1 Salk. 249. S. C.; nor where the distress is for damage-feasant. Com. Dig. Distress, B. 4.

(19) In actual use, but not otherwise. 4T. R. 566. Also see 2 Inst. 132, where other authorities are collected. The modern case just cited contains much learning upon what is, and what is not, with reference to the freehold, distrainable.

(20) See accordingly in New-York, 2 R. S. 501, 10, pt. 2.

(21) This provision extends to corn in whatever state it may be, whether thrashed or unthrashed, 1 Lutw. 214; and, as observed by Mr. Bradby, inasmuch as this statute directs the distress to be sold, unless replevied within five days, perhaps the rule of the ancient common law, with respect to the perishable nature of the distress, no longer extends in the case of a distress for rent, to any thing which is not liable to deterioration within the five days. Bradby on Distr. 213. A sale by a landlord of

(y) 1 Burr. 589.
(z) Ibid. 588.

standing corn, taken as a distress before it is ripe, is void, and the tenant need not replevy, neither can he sue the seller, in an action on the case, for selling such corn before the expiration of five days. 3 B. & A. 470.

(22) But if annexed for the purpose of trade or manufacture, and not fixed into the wall so as to be necessary for its support, they are distrainable in New-York. (2 R. S. 501, § 10, pt. 2.) By 2 R. S. 501, § 10, whatever is exempt from execution is exempt from distress: (see specifications below). Beasts of the plough, sheep, and the implements of a mechanic's trade, cannot be distrained for rent, if other sufficient property can be found. (Id. 502,

13). A landlord cannot distrain for rent personal property deposited, hired, or lent with his consent to the tenant, nor property of a stranger accidentally straying on the premises, or deposited with a tavern-keeper, or the keeper of any warehouse in the usual course of business, or deposited with any one to be repaired or manufactured, (id. 502, 14); the officer distraining is not, however, liable for taking the property mentioned in the last section without notice. The property exempt from execution and distress by 2 R. S. 367, 22, is the following, when owned by a householder, and the moveable articles continue exempt while the owner or his family is removing viz. 1. All spinning wheels, weaving looms, and stoves put up or kept for use in any dwelling house. 2. The family bible, family pictures, and school books used in the family; and books of the family not exceeding 50 dollars in value. 3. A seat or pew in a church occupied by the family. 4. Ten sheep with their fleeces, and the yam or cloth manufactured from them:

(23). For this reason also corn growing could not be distreined; till the statute 11 Geo.II. c. 19. empowered landlords to distrein corn, grass, or other products of the earth, and to cut and gather them when ripe (24), (25).

Let us next consider, thirdly, how distresses may be taken, disposed of, or avoided. And, first, I must premise, that the law of distresses is greatly altered within a few years last past. Formerly, they were looked upon in no other light than as a mere pledge or security, for payment of rent or other duties, or satisfaction for damage done. And so the law still continues with regard to distresses of beasts taken damage-feasant, and for other causes, not altered by act of parliament; over which the distreinor has no other power than to retain them till satisfaction is made (26). But distresses for rent-arrere being found by the legislature to be the shortest and most effectual method of compelling the payment of such rent, many beneficial laws for this purpose have been made in the present century; which have much altered the common law, as laid down in our ancient writers.

In pointing out therefore the methods of distreining, I shall in general suppose the distress to be made for rent; and remark, where necessary, the differences between such distress, and one taken for other

causes.

*In the first place then, all distresses must be made by day (27), [ *11 ] unless in the case of damage-feasant; an exception being there allowed, lest the beasts should escape before they are taken (a). And, when a person intends to make a distress, he must, by himself or his bailiff, enter on the demised premises; formerly during the continuance of the lease, but now (b), if the tenant holds over, the landlord may distrein within six months after the determination of the lease; provided his own

(a) Co. Litt. 142.

one cow, two swine, and their necessary food: all necessary pork, beef, fish, flour, and vegetables actually provided for the family; and fuel necessary for the family for 60 days. 5. All necessary wearing apparel, beds, bedsteads and bedding for the family; arms and accoutrements required to be kept by law; necessary cooking utensils; one table, six chairs, six knives and forks, plates, teacups and saucers, and spoons; one sugar dish, milk pot, teapot, crane and its appendages, one pair of andirons, and a shovel and tongs. 6. The tools and implements of a mechanic necessary for his trade not exceeding 25 dollars in value. (Id. 367, § 22).

(23) Co. Litt. 47. b. This rule extends to such things as are essentially parts of the freehold, although for a time removed therefrom, as a millstone, removed to be picked. Bro. Ab. Distress, pl. 23. 4 T. R. 567; as to what are fixtures, see 2 Chit. Com. Law, 268. Com. Dig. Biens. H. Chitty's Law of Descents, 256, 7. 4 Moore, 281. 440. 2 D. & R. 1. 5 B. & A. 826. 2 Stark. 403. 2 B. & C. 608. 4 D. & R. 62. S. C. 1 M'Clelan Rep. Ex.

217.

(24) The act applies only to corn and other produce of the land which may become ripe, and are capable of being cut and laid up; therefore trees, shrubs, and plants, growing on land which the defendant had demised to the plaintiffs for a term, and which they had

(b) Stat. 8 Ann, c. 14.

converted into a nursery ground, and planted subsequently to the demise, were held not distrainable by the former for rent, 2 Moore, 491. 8

Taunt. 431. S. C. 3 Moore, 114. S. P.; and see ante, note 18. as to time of sale. 3 B. & A. 470.

(25) In New-York, the produce of the soil, or articles annexed to the freehold, cannot be removed till sold. (2 R. S. 502, § 11).

(26) In New-York they may be sold by the sheriff or keeper of the pound. (2 R. S. 518, 5, 13).

a.

(27) Mirrour, c. 2. s. 26. see also 7 Rep. 7. The distress cannot be made till the day after the rent falls due, unless, indeed, there be any agreement or local custom to the contrary. Gilb. Dist. 56. &c. Hargrave's Co. Litt. 47. b. n. 6. The distress must not be made after tender of payment of the entire rent due. According to 8 Co. 147. a. Gilb. Dist. by Hunt, 76, &c. 3 Stark. 171. 1 Taunt. 261. tender upon the land before the distress, makes the distress tortious; tender after the distress and before the impounding, makes the detainer, and not the taking, wrongful; tender after impounding makes neither the one nor the other wrongful, but in the case of a distress for rent upon the equity of the 2 W. & M. c. 5; a sale of the distress, after tender of the rent and costs, would be illegal.

title or interest, as well as the tenant's possession, continue at the time of the distress (28). If the lessor does not find sufficient distress on the premises, formerly he could resort no where else; and therefore tenants, who were knavish, made a practice to convey away their goods and stock fraudulently from the house or lands demised, in order to cheat their landlords. But now (c) the landlord may distrein any goods of his tenant, carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bona fide sold for a valuable consideration: and all persons privy to, or assisting in, such fraudulent conveyance, forfeit double the value to the landlord (29), (30). The landlord may also distrein the beasts of his tenant, feeding upon any commons or wastes, appendant or appurtenant to the demised premises (31), (32). The landlord might not formerly break open a house, to make a distress, for that is a breach of the peace. But when he was in the house, it was held that he might break open an inner door (d); and now (e) he may, by the assistance of the peace-officer of the parish, break open in the day-time any place, whither the goods have been fraudulently removed and locked up to prevent a distress; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein (33.) Where a man is entitled to distrein for an entire duty, he ought to distrein for the whole at once; and not for part at one time, and part at ano

ther (ƒ) (34). But if he distreins for the whole, and there is not [*12] sufficient on the premises, or he happens *to mistake in the value

of the thing distreined, and so takes an insufficient distress, he may take a second distress to complete his remedy (g).

Distresses must be proportioned to the thing distreined for. By the statute of Marlbridge, 52 Hen. III. c. 4. if any man takes a great or unreasonable distress, for rent-arrere, he shall be heavily amerced for the same. As if (h) the landlord distreins two oxen for twelve-pence rent; the taking

(28) Ante 8. n. 8. Although this proviso is in terms confined to the possession of the tenant, yet it has been holden, that where the tenant dies before the term expires, and his personal representative continue in possession during the remainder and after the expiration of the term, the landlord may distrain within six calendar months after the end of the term for rent due for the whole term. 1 H. Bla. 465. And in 1 H. Bla. 7. n. a. it was holden, that the term was continued by the custom of the country for the purpose of giving a right to the landlord to distrain on the premises in which the way going crop remained. See 1 Selw. N. P. 6 ed. 681.

(29) See 11 Geo. II. c. 19. sects. 1, 2, 3. The act is remedial, not penal, 9 Price, 30. It applies to the goods of the tenant only which are fraudulently removed, and not those of a stranger. 5 M. & S. 38. And the rent must be in arrear at the time of the removal. 1 Saund. 284. a. 3 Esp. 15. 2 Saund. 2. n. b. sed vid. 4 Camp. 136.

(30) In New-York, the goods may be followed within 30 days after their removal, if rent were due at the time of their removal or

(g) Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 1 Burr 590. (h) 2 Inst. 107.

becomes due in 30 days after: if not then due, they must be followed in 30 days after the rent does become due. (2 R. S. 502, § 15.)

(31) See accordingly in New-York. (2 R. S. 502, § 12).

(32) If the lord come to distrain cattle which he sees within his fee, and the tenant or any person, to prevent the lord from distraining, drive the cattle out of the lord's fee into some other place, yet he may pursue and take the cattle. Co. Litt. 161. a. But this rule does not hold to distresses damage-feasant, which must be made on the land. Id.

(33) See 2 R. S. 503, § 18.

(34) It may be as well here to observe, that if a landlord come into a house and seize upon some goods as a distress, in the name of all the goods of the house, that will be a good seizure of all. 6 Mod. 215. 9 Vin. Ab. 127. But a fresh distress may be made on the same goods, which have been replevied, for subsequent arrears of rent. 1 Taunt.. 218. So if the cattle distrained die in the pound, the loss. will fall on the party distrained on, and not upon the distrainor. Burr. 1738. 1 Salk. 248. 11 East, 54.