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nuisance 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 nuisance, 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 nuisance, any of the king's subjects passing that way, may cut it down and destroy it (.). "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 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 distraining cattle or goods for non-payment of rent, or other duties (8); or, distraining another's cattle
(1) Cro. Car. 184.
(g) Rep. 101. 9 Rep. 55. (h) Salk. 459.
(8) As to distresses in general, see Gilbert the consequence, that is 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 compermita 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 prois 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 land 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 excresto the lord's seizure for the payment and sa- cence 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 perfeudal service to be performed; and hence the formance of feudal services, and consequentnecessity 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
+ See 2 R. S. 500, detailing the mode of rent reserved out of any lands or tenements, proceeding on distress for rent. By that act shall not be paid or rendered when due, the it is provided (01), that within 6 months after person entitled thereto may distrain for the the determination of any lease for life, years, same. Does not this authorize a distress even or at will, any one to whom rent is due on such where there is no reversion in the owner of demise, may distrain either the goods remain the rent? No distress for rent can be made ing on the premises, or such as have been re- unless the warrant to distrain be accompanied moved, in the same way as if the lease had by an affidavit of the amount due, and of the Dot ended. By 1 R. S. 747, o 18, it is enact. time when it became due. 2 R. S. 501, 9 8. ed, that when any certain services, or certain VOL. II.
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 distrained ; 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 the 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. [ *7 ] 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 (7), or other certain personal service (m), the lord may distrain, of common right. 3. For amercements in a court-leet a distress may he 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 distrain them, till satisfaction be made him for the injury he has thereby sus
(1) 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. til. distress, 15.
made for rent of a ready furnished house or does not contain words of immediate demise, lodging, because it is then considered that the no distress can be made, unless from a previ. rent issues out of the principal, the real pro- ous payment of rent or other circumstance, a perty demised. 2 New. Rep. 224.
tenancy from year to year can be inferred, and Accepting a note of hand, and giving a re- the only remedy is by action for use and occuceipt for the rent, does not, till payment, pre: pation. 2 Taunt. 148. 5 B. & A. 322. 13 clude the landlord from distraining; and so if East, 19. So as lord Coke quaintly says, the landlord accept a bond ; but a judgment(Co. Lit. 96. a.) it is a maxim in law, that no obtained on either of such instruments, would distress can be taken for any services that are preclude the right of distress.* See Bull. N. not put into certainty, nor can be reduced to P. 182. An agreement to take interest on rent any certainty, for id certum est quod certum in arrear, does not take away the right of dis- reddi potest, but yet in some cases there may tress. 2 Chit. R. 245. Where there are rents be a certainty in uncertainty. Therefore if á for which the party cannot distrain, although man hold land, paying so much per acre, al. he may have an assize, yet remedy may be though in the terms of the demise the number had in equity. Per Comyns, B. Exch. Trin. of acres be not fixed, the lord may distrain. 5 & 6 Geo. II. 1 Selw. N. P. 6. ed. 673. Vin. Ab. Distress, E. See form of avowry, 3
To entitle a person to distrain for non-pay. Chilly on Pl. 4th edit. 1051. But where an ment of money, it must be due under a demise, estate has been let without in any way fixing the and for rent fixed and certain in its nature; amount of rent, the only remedy is by action. and therefore, if a person be let into posses- (9) See, however, 2 book, p. 42. and Co. sion under an agreement for a lease which Lit. 162, b. n. 6.
* See accordingly 2 R. S. 500, $ 2.
tained (10). 5. Lastly, for several duties and penalties inflicted by special acts of parliament (as for assessments made by commissioners of sewers (6), or for the relief of the poor) (P), remedy by distress and sale is giren; for the particulars of which we must have recourse to the statutes themselves : remarking only, that such distress (9) 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 seizing 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 distrained, or taken in distress (11), we may lay it down as a general rule, that all chattels personal are liable to be distrained, unless particularly protected or exempted. Instead therefore of mentioning what things are distrainable, 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 distrained 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,
(10) See law of New York, 2 R. S. 517. Stra. 97. 3 B. & A. 440. But no specific
(11) Besides the rules in the text, it is a and formal notice is necessary. 3 B. & A. masim of law, that goods in the custody of the 645. 4 Moore, 473. 2 B. & B. 67. S. C. The law cannot be distrained; thus goods distrain action lies, though part only of the goods be ed, darnage-leasant, cannot be distrained, Co. removed, i Moore, 473. 2 B. & B. 67. S. C. ; Litt. 47. a. ; $0 goods taken in execution, but the landlord's consenting to the removal Willes, 131 ; but the goods so taken must be waives his remedy. 3 Camp. 24. An execu. removed from the premises within a reason- tor or administrator, 1 Stra. 212. or a trustee able time, or they will not be protected, 1 of an outstanding satisfied term to attend the Price, 277. 1 M. & S. 711; however, grow. inheritance, may sue. 4 Moore, 473. 2 B. & ing corn, sold under a writ of fi. fa., cannot be B. 67. S. C. Instead of an action, the landlord distrained, unless the purchaser, allow it to re. may move the court out of which the execumain uncut an unreasonable time after it is tion issued, that he may be paid what is due ripe. 2 B. & B. 362. 5 Moore, 97. S. C.; but to him out of the money levied, and in the shefoods, taken under a void outlawry, are liable riff's hands, Cas. Tem. Hardw. 255. 2 Wils. to distress. 7 T. R. 259. For the protection 140; and the court will grant the motion, of landlords, by the 8 Ann. c. 14. s. 1. no goods though the sheriff had no notice of the rent taken in execution upon any premises demised, due till after the removal. 3 B. & A. 440 ; can be removed until rent,* not exceeding one and see further on this point, Tidd's Prac. 8th Fear's arrear, be paid. Under this act the she- edit. 1053, 4, 5. riff is bound to satisfy the rent in the first in- The recent bankrupt act provides, that in stance, 4 Moore, 473. In cases to which the case of bankruptcy, no distress made after act statute applies, the landlord is entitled t be of bankruptcy shall be available for more than paid his whole rent, without deducting pound- a year's rent, but the landlord inay prove for age, 1 Stra. 643 ; rent only due at the time of the excess. 1 Geo. IV. c. 16. sect. 74. and see the levy can be obtained under the act, 1 M. ante, 2 book, 473.+ & S. 245. I Price, 274; but forehand rent, or For the protection of landlords, by the 56 rent stipulated to be paid in advance, may be Geo. III. c. 50, no sheriff or other officer shall obtained, 7 Price, 690; so rent that falls due carry off, or sell or dispose of, for the purpose on the day of the levy, Tidd. Prac. 8th edit. of being carried off from any lands, any straw, 1054. After the landlord has had one year's chaff, or turnips, in any case, nor any hay or rent paid him, he is not entitled to another up. other produce, which, according to any coveon a second execution, 2 Stra. 1024. 2 B. & nant or written agreement, ought not to be so B. 362 5 Moore, 97. S. C., unless, as we carried off, provided notice be given to the have just seen, the goods be not removed sheriff of the existence of such covenant ; but within a reasonable time. The ground land. by 3d section, the sheriff may sell, on condi. lord is not within the act, where there is an tion of such crops being consumed on the land. esecution against the under lessce. 2 Stra. The 6th section provides, that landlords shall 767. If the sheriff remove the goods without not distrain for rent on the purchaser of any payment of the rent, and after notice and a such crops, sold according to 3d section; nor formal demand of the rent, an aetion on the on articles or cattle, &c. employed for the case lies against him. Vin. Ab. Dist. c. 3. purpose of consuming such crops.
* See accordingly in New York, 1 R. S. + See 2 R. S. 39. 9 28. corresponding pro. 746, $ 12, &c.
vision under the insolvent laws of Nev-York. landlord and leave of the tenant, to graze sor (13) But this doctrine is contrary to Sayer a night, might be distrained by the landlord Rep. 139. 2 Keb. 596. Cro. Eliz. 596. Co. for rent, 3 Lev. 260. 2 Vent. 50. 2 Lutw. Litt. 47. a. Rol. Ab. Distress, A. pl. 4 ; and 1161 ; but the owner of the cattle was afterwas expressly overruled in 6 Term R. 138. wards relieved in equity on the ground of frauon the ground that the distraining a horse as dulent connivance and concealment of the de. damage-feasant, whilst any person is riding mand for rent by the landlord, and he was de. him, would perpetually lead to a breach of the creed to pay all costs both of law and equity. peace. And it has been held, that nets or fer. 2 Vern. 129. Prec. Ch. 7. Gilb. Dis. by rets cannot be taken damage-feasant in a war. Hunt, 47. As courts of law now take notice ren, if they are in the hands of the person of fraud as well as courts of equity, when it using them. Harg. Co. Litt. note 13. Cro. can be fully proved, there would now be the Eliz. 550. So a loom cannot be distrained same result at law, while in the hands of the weaver, Willes, Goods of a principal in the hands of a factor 517; nor wearing apparel, if in actual use; are privileged from distress for rent due from but if put off, though only for the purpose of such factor to his landlord, on the ground that repose, it is liable to be distrained. 1 Esp. Rep. the rule of public convenience, out of which 206. Peake's Rep. 36. S. C.
[ 8 ] cats, rabbits, and all animals fere nature) cannot be distrain
ed. 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 distrained 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 distrained 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 distrained 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 shop to be shoed, or in a common inn ; or cloth at a tailor'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 distrainable by him for rent : for otherwise a door would be open to infinite frauds upon the landlord ; and the stranger has his
(12) See this case fully reported, Willes and put into a close with the consent of the Rep. 46.
the privilege arises, is within the exception of (14) As to this exception in favour of trade, a landlord's general right to distrain, and see Gilb. Dis. by Hunt, 39; 80 cattle and therefore that such goods are protected for the goods of a guest at an inn are not distrainable benefit of trade. 6 Moore Rep. 243. 3 B. & for rent, but a chariot or horses standing at B. 75. S. C. So goods landed at a wharf and livery are not exempt. 2 Burr. 1498. Mr. Sergt. consigned to a broker, as agent of the consignWilliams, in 2 Saund. 290. n. 7. suggests, that or, for sale, and placed by the broker in the it should seem that at this day a court of law wharfinger's warehouse for safe custody until would be of opinion, that cattle belonging to a an opportunity for selling them should occur, drover being put into ground with the consent are not distrainable for rent due in respect of of the occupier, to graze only one night on the wharf and warehouse, as they were brought their way to a fair or market, are not liable to to the wharf in the course of trade. 1 Bing. the distress of the landlord for rent; and lord 283. So goods carried to be weighed, even Nottingham intimated the same opinion in 2 at a private beam, if in the way of trade, are Vern. 130; and Mr. Christian, in his edition, exempt; so is a horse that has carried corn to has the following note of a decision to the a mill to be ground, and during the grinding same effect: “Cattle driven to a distant mar. of the corn is tied to the mill.door. Cro. Eliz. ket, and put into land to rest for one night, 549. 596. Goods in a public fair are exempt cannot be distrained for rent by the owner of from distress, unless for toll due from the the land, such protection being absolutely for owner. 2 Lutw. 1380. Goods in possession the public interest." Tate v. Gleed, C. P. of a carrier are also exempt, and this though Hil. 24 Geo. III. Gilb. Dis. by Hunt, 47. Jt the carrier be not a public one. 1 Salk. 249. was before held, that cattle going to London,
remedy over by action on the case against the tenant, if by the tenant's default the chattels are distrained, 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 distrainable 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 distrainable 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 distrain 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 of 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 distrainable 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 (71). 3. 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
(10) Lutw. 1580.
(c) Cro. Eliz. 319. (s) Co. Litt. 47.
(15) As if horses or cattle are sent to agist, (16) Levant and couchant in this sense they may be immediately distrained by the means, that the cattle must be lying down and landlord for rent in arrear, and the owner must rising up on the premises for a night and a seek his rernedy by action against the farmer; day, without pursuit made by the owner of the principle of this rule extends to public them. Gilb. Dis. by Hunt, 3d edit. 47. livery stables, lo which, if horses and carriages (17) In the case of Poole v. Longuevill, 2 are sent to stand, it is determined that they Saund. 289. the contrary was determined, but are distrainable by the landlord, as if they that case was overruled in 2 Lutw. 1580. and were in any public place, 3 Burr. 1498 ; so up- the result of the cases seems to be, that if a on the same principle the goods of lodgers, or stranger's beasts escape into another's land, any other person, on the premises, are liable to by default of the owner of the beasts, as by be distrained ; and to exempl goods from dis. breaking the fences, otherwise sufficient, they tress on the ground of their being in an inn, may be distrained for rent immediately, withthey must be within the very precincts of the out being levant and couchant ; but that if they inn, and not on other premises at a distance escape there by default of the tenant of the belonging to it, Barnes, 472; and even within land, or for want of his keeping a sufficient the inn itself the exemption does not extend fence, then they cannot be distrained for rent to a person dwelling therein, as a tenant, ra- or service of any kind till they have been lether than a gueul. 1 Bla. Rep. 484.
vant and couchant, nor afterwards by a landAs to the remedy over by an under-tenant lord for rent on a lease, unless the owner of or lodger, see the cases clied in 3 Bar. & the beasts neglect or refuse, after actual notice, Cres. 789, in which it was beld, that where to remove them within a reasonable time; the tenant of premises had underlet a part by but it is said, that such notice is not necessary deed, and the original landlord distrained for where the distress is by the lord of the fee, or Tent upon the under.tenant, the latter could by the grantee of a rent-charge. 2 Lutw. 1573. poi support assumpsit against his immediate Co. Litt. 47. b. n. 3. Gilb. Dis. by Hunt, 3d lessor, upon an implied promise to indemnify edit. 45. 2 Saund. 290. n. 7. 285. n. 4. See him against the rent payable to the superior further, Vin. Ab. Fences. landlord.