wealth irr his station (18). So, beasts of the plough (19), averia 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 distrained. But as beasts of the plough may be taken in execution for debt, so they may be for distress 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 (2). 5. Nothing shall be distrained for rent, which may not be rendered again in as good plight as when it was distrained :

for which reason milk, fruit, and the like, cannot be distrained, a [ *10 ] distress at *common law being only in the nature of 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 distrained, because some damage must needs accure 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 distrained, as well as other chattels (20), (21). 6. Lastly, things fixed to the freehold may not be distrained ; and caldrons, windows, doors, and chimney-pieces: for they savour of the realty (22),

(2) Stat. 31 Hen. III. st. 4. de districtiones cacca. nia.

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

(18) A stocking frame, Willes, 512. or a standing corn, taken as a distress before it is loom, 4 T. R. 565. being implements of trade, ripe, is void, and the tenant need not replevy. cannot be distrained; but it must be observed, neither can he sue 'the seller, in an action on that utensils and implements of trade may be the case, for selling such corn before the ex. distrained where they are not in actual use, piration of five days. 3 B. & A. 470. and no other sufficient distress can be found (22) But if annexed for the purpose of trade on the premises. Co. Litt. 47. a. 4 T. R. 565. or manufacture, and not fixed into the wall so And it should seem, that if there be reasonable as to be necessary for its support, they are dis. ground for presuming there are not sufficient trainable in New York. (2 R. S. 510, § 10, other goods, the party may distrain implements pt. 2). By 2 R. S. 510, Ø 10, whatever is ex. of trade, and is not bound to sell the other empt from execution is exempt from distress : goods first. 6 Price Rep. 3. 2 Chitty's R. (see specifications below). Beasts of the 167. And this rule of exemption does not ex. plough, sheep, and the implements of a meiend to cases where a distress is given in the chanic's trade, cannot be distrained for rent, if nature of an execution by any particular sta. other sufficient property can be found. (Id. 502. tute, as for poor-ra:es and the like, 3 Salk. $ 13). A landlord cannot distrain for rent 136. 1 Burr. 579. Lord Raym, 384. 1 Salk. personal property deposited, hired, or lent with 249. s. C.; nor where the distress is for his consent to the tenant, nor property of a damage-feasant. Com. Dig. Distress, B. 4. stranger accidentally straying on the premises,

(19) In actual use, but not otherwise. 4T. or deposited with a tavern-keeper, or the keepR. 566. Also see 2 Inst. 132, where other er of any warehouse in the usual course of bu. authorities are collected. The modern case siness, or deposited with any one to be repair. just cited contains much learning upon what ed or manufactured, (id. 502-14); the officer is, and what is not, with reference to the free. distraining is not, however, liable for taking the hold, distrainable.

property mentioned in the last section without (20) See accordingly in New York, 2 R. notice. The property exempt from execution S. 501, g 10, pt. 2.

and distress by 2 R. S. 367, 9 22, is the follow. (21) This provision extends to corn in what. ing, when owned by a householder, and the ever state it may be, whether thrashed or un- moveable articles, continue exempt while the thrashed, 1 Lutw. 214; and, as observed by owner or his family is removing : viz. I. All Mr. Bradby, inasmuch as this statute directs spinning wheels, weaving looms, and stoves the distress to be sold, unless replevied within put up or kept for use in any dwelling house. five days, perhaps the rule of the ancient com. 2. The family bible, family pictures, and school mon law, with respect to the perishable nature books used in the family, and books of the of the distress, no longer extends in the case family not exceeding 50 dollars in value. of a distress for rent, to any thing which is not A seat or pew in a church occupied by the liable to deterioration within the five days, family. 4. Ten sheep with their feeces, and Bradby on Diatr. 213. A sale by a landlord of the yarn or cloth manufactured froin them:

3.

(23). For this reason also corn growing could not be distrained; till the statute 11 Geo. II. c. 19. empowered landlords to distrain 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 distrainor 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 distraining, 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 distrain within six months after the determination of the lease ; provided his own (a) Co. Litt. 142.

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 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 ihe 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 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 distrain for an entire duty, he ought to distrain 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

(8) Cro. Eliz. 13. Stat. 17 Car. II. c.7.

1 Burr

(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.

590.

(h) 2 Inst. 107.

(28) Ante 8. n. 8. Although this proviso is becomes due in 30 days after: if not then due, in terms confined to the possession of the they must be followed in 30 days after the rent tenant, yet it has been holden, that where the does become due. (2 R. S. 502, $ 15). tenant dies before the term expires, and his (31) See accordingly in New-York (2 R. personal representative continue in possession S. 502, 912). during the remainder and after the expiration (32) If the lord come to distrain cattle of the term, the landlord may distrain within which he sees within his fee, and the tenant, six calendar months after the end of the term or any person, to prevent the lord from dis. for rent due for the whole term. I H. Bla. training, drive ihe catile out of the lord's fee 465. And in 1 H. Bla. 7. n. a. it was holden, into some other place, yet he may pursue and that the term was continued by the custom of take the cattle.' Co. Litt. 161. a. But this the country for the purpose of giving a right rule does not hold to distresses damage-fea. to the landlord to distrain on the premises in sant, which must be made on the land. Id. which the way going crop remained. See 1 (33) See 2 R. S. 505, $ 18. Selw. N. P. 6 ed. 081.

(31) It may be as well here to observe, that (29) See 11 Geo. II. c. 19. sects. 1, 2, 3; if a landlord come into a house and seize upon The act is remedial, not penal, 9 Price, 30. It some goods as a distress, in the name of all applies to the goods of the tenant only which the goods of the house, that will be a good are fraudulently removed, and not those of a seizure of all. 6 Mod. 215. 9 Vin. Ab. 127. stranger. 5 M. & S. 38.' And the rent must But a fresh distress may be made on the same be in arrear at the time of the removal. 1 goods, which have been replevied, for subse. Saund. 284. a. 3 Esp. 15. 2 Saund. 2. n. b. quent arrears of rent,

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 distresses 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 disposal of it. For which purpose the things distrained must in the first place be 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 fike; in these cases the tenant may lawfully 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 (?).

A pound (parcus, which signifies any inclosure) is either pound-overt, that is, open overhead ; or pound-covert, that is, close. By the statute i & 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. (1) Bro. Abr. 1. assise, 291. prerogative, 98.

(1) Co. Litt. 47. ( 1 Ventr. 104. Fitzgibb. 85. 4 Burr. 590. (£) Co. Litt. 160, 161. (35) See 2 R. S. 503, $ 19, in New York. and full costs. 2 W. & M. sess. I. c. 5. s. 5.

(36) And see 2 Stra. 851. 3 Leon. 48. See 2 R. S. 504, 27, in New York. exceptions, 1 Burr. 582. 1 H. Bla. 13. 9 (37) In New-York, if the distress be for Easi, 299. It is no bar to this aetion, that rent, the pound must be a pound overt in the between the distress and sale of the goods county, or such other convenient place as the distrained, the parties came to an arrange- officer distraining may approve. (2 R. S. ment respecting the sale, 1 Bing. 401. 4 D. 503, 9 20). If the distress be for damage-fea. & R. 539. 2 B. & C. 821. S. C.; and the sant, the pound must be the nearest in the action is sustainable though there was a ten- county. (ta. 517, 0 4). The owner may feed der of the rent before the distress was made, them; if he do not do it, it would seem the 2 D. & R. 250. Where more rent is distrain- pound keeper should. (Id. 0 5, &c). ed for than is due, the remedy is at common (38) The distrainor cannot tie up cattle im. law, and is not founded on the 52 Hen. 3. c. pounded; and if he tie a beast and it is stran. 4; nor on the 2 W. & M. c. 5. s. 5. Stra. 851. gled, he will be liable in damages. 1 Salk. Where no rent is due, the owner of the goods 248. If the distress be lost by act of God, as distrained may, in an action of trespass on the by death, the distrainor may distrain again. case, recover double the value of the goods 11 East, 51. Burr. 1738. VOL. II.

5

(m) Ibid.

When impounded, 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 continu 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 (0). 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 (9); 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.

(9) Bro. Ibid. 12 Mod. 330.

(r) 2 W. & M. c. 5. 8 Ann. c. 14. 4 Geo. II. c. 23. 11 Geo. II. c. 19.

; as

(39) A reasonable time after the expiration 4 B. & A. 208. 1 B. & C. 115. Though the of the five days is allowed to the landlord for act authorizes a sale aster the five days, it does appraising and selling the goods. 4 B. & A. not take away the right to replevy after the 208. sed vid. 1 H. Bla. 15. The five days five days in case the distress is not sold, but are reckoned inclusive of the day of sal it would be otherwise after a sale. 5 Taunt. if the goods are distrained on the 1st, they 451. I Marsh. 135. By the consent of the must not be sold before the 6th. 1H. Bla. 13. tenant, the landlord may continue in possesAn action lies on the equity of this act for sion longer than the five days without incurselling within the five days. Semb. id. If ring any liability; and his so continuing in the distrainor continue in possession more possession will not of itself create any prethan a reasonable time beyond the five days, sumption of collusion between him and the an action of case or trespass lies on the equi. tenant to defeat an execution. 7 Price, 690. ty of the statute. 11 East, 395. Stra. 717.