Sivut kuvina

tle or interest, as well as the tenant's possession, continue at the time o the distress (28). If the lessor does not find sufficient distress on the pre mises, formerly he could resort no where else; and therefore tenants, who were knavish, made a practice to convey away their goods and stocks fraudulently from the house or lands demised, in order to cheat their landlords. But now (c) the landlord may distrain 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 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 distrain 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 prerent a distress; oath being first made, in case it be a dwelling house, of a easonable ground to suspect that such goods are concealed therein (33). Where a man is entitled to distrain for an entire duty, he ought to dis. rain for the whole at once; and not for part at one time, and part at ano. ther (f) (34). But if he distrains for the whole, and there is not [12] sufficient on the premises, or he happens to mistake in the value

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

Distresses must be proportioned to the thing distrained 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 distrains two oxen for twelve-pence rent; the taking

(c) Stat 8 Ann. c. 14. 11 Geo. II. c. 19.
(d) Co. Litt. 161. Comberb. 17
(e) Stat. 11 Geo. II. c. 19.
(f) 2 Lutw. 1532.

(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. 165. And in 1 H. Bla. 7. n. a. t was nolden, 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. 581.

(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 strar ger. 5 M. & S. 38. And the rent must ve 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 folsowed 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 Saik. 248. 11 East, 54

of both is an unreasonable distress; but, if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, it is said that no distress can be excessive (i). For as these dis tresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge, for an action of trespass is not maintainable upon this account, it being no injury at the common law (j) (35), (36). When the distress is thus taken, the next consideration is the disposa. of it. For which purpose the things distrained must in the first place he carried to some pound, and there impounded by the taker.

But, in their way thither, they may be rescued by the owner, in case the distress was taken without cause, or contrary to law as if no rent be due; if they were taken upon the highway, or the like; in these cases the tenant may law. fully make rescue (k). But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law (1).

A pound (parcus, which signifies any inclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 P. & M. c. 12. no distress of cattle can be driven out of the hundred where it is taken, *unless to a pound-overt within the (*13 ] same shire; and within three miles of the place where it was taken (37). This is for the benefit of the tenants, that they may know where to find and replevy the distress. And by statute 11 Geo. II. c. 19. which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises, upon which a distress is taken, into a pound, pro hac vice, for securing of such distress. If a live distress, of animals, be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distrainor must give notice to the owner: and in both these cases, the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they are put in a poundcovert, in a stable or the like, the landlord or distrainor must feed and sustain them (m) (38). A distress of household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert, else the distrainor must answer for the consequences.

(i) Bro. Abr. t. assise, 291. prerogative, 98.
(j) 1 Ventr. 104. Fitzgibb. 85. 4 Burr. 590.
(k) Co. Litt. 160, 161.

(35) See 2 R. S. 503, § 19, in New-York.
(36) And see 2 Stra. 851. 3 Leon. 48. See
exceptions, 1 Burr. 582. 1 H. Bla. 13. 9
East, 298. It is no ar to this action, that
between the distress and sale of the goods
distrained, the parties came to an arrange-
ment respecting the sale, 1 Bing. 401. 4 D.
& R. 539. 2 B. & C. 821. S. C.; and the
action is sustainable though there was a ten-
der of the rent before the distress was made,
2 D. & R. 250. Where more rent is distrain-
ed for than is due, the remedy is at common
law, and is not founded on the 52 Hen. 3. c.
nor on the 2 W. & M. c. 5. s. 5. Stra. 851.
Where no rent is due, the owner of the goods
distrained may, in an action of trespass on the
case, recover double the value of the goods


(1) Co. Litt. 47.
(m) Ibid.

and full cost. 2 W. & M. sess. 1. c. 5. s. 3. 2 R. S. 504, 9 27, in New-York.

(37) In New-York, if the distress be for rent, the pound must be a pound overt in the county, or such other convenient place as the officer distraining may approve. (2 R. S. 503, 20). If the distress be for damage-feasant, the pound must be the nearest in the county. (Id. 517, 4). The owner may feed them; if he do not do it, it would seem the pound keeper should. (Id. § 5, &c).

(38) The distrainor cannot tie up cattle inpounded; and if he tie a beast and it is stran gled, he will be liable in damages. 1 Salk. 248. If the distress be lost by act of God, as by death, the distrainor may distrain again 11 East. 51. Burr. 1738.

When inpounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it hath been held (n), that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded, till the owner makes satisfaction; or contests the right of distraining, by replevying the chattels. To replevy (replegiare, that is, to take back the pledge) is, when a person distrained upon applies to the sheriff or his officers, and has the distress returned into his own possession, upon giving good security to try the right of taking it in a suit of law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, of which more will be said hereafter.

At present I shall only observe, that, as a distress is at common [*14] *law only in nature of a security for the rent or damages done, a

replevin answers the same end to the distrainor as the distress itself; since the party replevying gives security to return the distress, if the right be determined against him.

This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet, if he continues obstinate and will make no satisfaction or payment, it is no remedy all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always saleable at common law (o). And for an amercement imposed at a court-leet, the lord may also sell the distress (p): partly because, being the king's court of record, its process partakes of the royal prerogative (q); but principally because it is in the nature of an execution to levy a legal debt. And so, in the several statute-distresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy And, in like manner, by several acts of parliament (r), in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken (39), and notice of the cause thereof given him, replevy the same with sufficient security; the distrainor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges; rendering the overplus, if any, to the owner himself. And, by this means, a full and entire satisfaction may now be had for rent in arrere, by the mere act of the party himself, viz. by distress, the. remedy given at common law; and sale consequent thereon which is added by act of parliament.

(n) Cro. Jac. 148.

(0) Bro. Abr. t. distress, 71. (p) 8 Rep. 41.

(39) A reasonable time after the expiration of the five days is allowed to the landlord for appraising and selling the goods. 4 B. & A. 208. sed vid. 1 H. Bla. 15. The five days ara reckoned inclusive of the day of sale; as if the goods are distrained on the 1st, they must not be sold before the 6th. 1 H. Bla. 13. An action lies on the equity of this act for selling within the five days. Semb. id. If the distrainor continue in possession more than a reasonable time beyond the five days, an action of case or trespass lies on the equity of the statute. 11 East, 395. Stra. 717.

[blocks in formation]

4 B. & A. 208. 1 B. & C. 145. Though the act authorizes a sale after the five days, it does not take away the right to replevy after the five days in case the distress is not sold, bư it would be otherwise after a sale. 5 Taunt 451. 1 Marsh. 135. By the consent of the tenant, the landlord may continue in posses sion longer than the five days without incur. ring any liability; and his so continuing in possession will not of itself create any presumption of collusion between him and the tenant to defeat an exection. 7 Price, 690.

Before I quit this article, I must observe, that the many particulars which attend the taking of a distress, used formerly to make it a hazardous kind of proceeding: for, if any *one irregularity was [*15 ] committed, it vitiated the whole, and made the distrainors tres

passers ab initio (s) (40). But now by the statute 11 Geo. II. c. 19. it is provided, that, for any unlawful act done, the whole shall not be unlawful or the parties trespassers ab initio : but that the party grieved shall only have an action for the real damage sustained (41), and not even that, if tender of amends is made before any action is brought.

VI. The seizing of heriots, when due on the death of a tenant, is also another species of self-remedy; not much unlike that of taking cattle or goods in distress. As for that division of heriots, which is called heriotservice, and is only a species of rent, the lord may distrain for this, as well as seize, but for heriot-custom (which sir Edward Coke says (t) lies only in prender, and not in render) the lord may seize the identical thing. itself, but cannot distrain any other chattel for it (u). The like speedy and effectual remedy, of seizing, is given with regard to many things that are said to lie in franchise; as waifs, wrecks, estrays, deodands, and the like; all which the person entitled thereto may seize, without the formal process of a suit or action. Not that they are debarred of this remedy by action, but have also the other and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature, as might be out of the reach of the law before any action could be brought. These are the several species of remedies which may be had by the mere act of the party injured. I shall next briefly mention such as arise from the joint act of all the parties together And these are only two, accord and arbitration.

J. Accord is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar of all actions upon this account. As if a man contract to build a house or [*16 ] deliver a horse, and fail in it; this is an injury for which the suf

ferer may have his remedy by action; but if the party injured accepts a sum of money, or other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action (w) (42). By several late sta

(s) 1 Ventr. 37

(t) Cop. 25.

(u) Cro. Eliz. 590. Cro. Car. 260.
(w) 9 Rep. 79

(40) In the case of a distress for damage tiff and defendant should each deliver up his feasant, this is still the law.

(41) See 2 R. S. 504, § 28. (42) See in general, Com. Dig. Accord, Bac. Ab. Accord.

The mere consent of a party to accept a satisfaction, without an actual satisfaction, is not sufficient to discharge the other; the accord and satisfaction must be perfect, complete, and executed, for were it otherwise, it would be only substituting one cause of action for another, which might go on to any exteat. 9 Rep. 79. b. 5. T. R. 141. Satisfaction must be made to the whole of the original demand, and a party will not be discharged upon performance of a satisfaction to part of such demand, the residue remaining unperformed. 1 Taunt. 526. 5 East, 230. The performance of one of two things stipulated for by an accord is nugatory, Lord Raym. 203: and where it was agreed that the plain

[ocr errors]

part of an indenture to be ancelled, and the
defendant had delivered up his part, this was
held no accord and satisfaction. 3 Lev. 189.
The accord and satisfaction must be certain;
an accord to pay a less sum on the same
at a subsequent day, is not sufficient. 5 East,
230. So an accord, that the defendant shall
employ workinen in two or three days, is bad,
4 Mod. 88; and performance of an uncertain
accord will not aid the defect. 3 Lev. 189.
Yelv. 124.

We have already seen, ante 2 book, how far a contract may be varied, released, or discharged by another contract. A deed before breach cannot be discharged by accord and satisfaction without a deed. I Taunt. 428. Com. Dig. Pleader, 2. v. 8. but after breach accord and satisfaction without dee is a good plea, for there the satisfaction is of the breach and not of the deed. Com Dig Accord A

tutes (particu.arly 11 Geo. II. c. 19. in case of irregu. arity in the metnoŭ of distraining, and 24 Geo II. c. 24. in case of mistakes committed by justices of the peace), even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends

or no.

II. Arbitration is where the parties, injuring and injured (43), submi. all matters in dispute, concerning any personal chattels or personal wrong. to the judgment of two or more arbitrators; who are to decide the controversy and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator or impar) (x), to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled. as it could have been by the agreement of the parties, or the judgment of a court of justice (y). But the right of real property cannot thus pass by a mere award (z): which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles; for, if this had been permitted, the land might have been aliened collusively without the con

(x) Whart. Angl. sacr. i. 772. Nicols. Scot. Hist. libr. ch. 1. prope finem.

1 & C. 7 East, 150. 1 J. B. Moore, 358, 460. Cro. Eliz. 46. 2 Wils. 86. 6 Rep. 43. b.

The satisfaction must be a reasonable one. Generally speaking, the mere acceptance of a less sum is not in law a satisfaction of a greater sum, 5 East, 230. and this though an additional security be given. 1 Stra. 426. An agreement between a debtor and creditor, hat part of a larger sum due should be paid by the debtor, and accepted by the creditor as a satisfaction for the whole, might, under special circumstances, operate as a discharge of the whole; but then the legal effect of such an agreement might be considered to be the same as if the whole debt had been paid, and part had been returned as a gift to the party paying. Per Holroyd, J. 2 B. & C. 481 A debtor's assignment of all his effects to a trustee, to raise a fund for the payment of a composition to his creditors, is a sufficient satisfaction, 2 T. R. 24; so if a third person guarantees the payment of the less sum. 11 East, 390. So if a creditor, by his undertaking to accept a composition, induce the debtor to part with his property to his creditors, or induce other creditors to discharge the debtor, to enter into a composition-deed, or deliver up securities to him, such creditor would be bound by such undertaking. 2 Stark. Rep. 407. 2 M. & S. 120. 1 Esp. 236. And where several creditors, with the knowledge of each other, agree on the faith of each other's undertaking to give time to, or accept a composition from a debtor, the agreement will be binding on every creditor who is party to it. 3 Camp. 175. 2 M. & S. 122. 16 Ves. 374; and see further as to composition with creditors, 3 Chitty's Com. L. 687 to 698. It should be here also observed, that when a nond, or other security under sea.. has been given and accepted in satisfaction of a simple Contract debt, the latter is merged in such

(y) Brownl. 55. 1 Freem. 410.

(z) I Roll. Abr. 242. 1 Lord Raym. 115.

higher security; and no action can be sup ported for the non-performance of the simple contract, Cro. Car. 415. Bac. Ab. Debt, G. unless indeed such new security be void: but the mere taking of an instrument of a higaer order as a collateral or additional security, does not preclude the debtor from suing or the original contract, and this though judg ment be obtained on such security. 2 Leon 110. 6 T. R. 176, 7. Payment and accept ance of a part of a debt before the day it falls due, or at a place where the whole debt was not payable, in satisfaction of the whole, is a good satisfaction, Co. Litt. 212. b.; and so if the debtor give a chose in possession for a chose in action, 2 T. R. 24. as the gift of a horse, or other property in specie. Co. Litt 212. b. The mere fulfilment of an act which a party is bound in law to do, is no satisfaction Per Grose, J. 5 East, 302. A release of at equity of redemption is no satisfaction. 2 Wils. 86. Conferring a benefit to a third per son, at the debtor's request, is sufficient. See Skin. Rep. 391.

The satisfaction should proceed from the party who wishes to avail himself of it, for when it proceeds entirely from a stranger, it will be a nullity. See 5 East, 294. 1 Smith, 515. Cro. Eliz. 541.

Accord and satisfactior by copartner, is a bar to any action against the other partners, 9 Rep. 79. b. ; so the acceptance of satisfac tion from a joint tort-feasor discharges the other wrongdoers, Sembl. 3 Taunt. 117. and accord and satisfaction to one of several coplaintiffs, will operate as a discharge from all See 13 Ed. IV. 6. 5 Co. 117. b.

(43) For the law of arbitrations in general, see Com. Dig. Arbitrament Tidd. Prac. 8th ed. 873 to 885. Caldwell on A bitration : Kyd on Arbitration; 3 Chit Com. Law, 67* to 668.

« EdellinenJatka »