find a more proper place to inquire under some of the subsequent divisions. 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 by party thereby, so as he commits no riot in the doing of it (g). If grieved. 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 peaceably pull it down (h). Or if a Where gate new gate be erected across the public highway, which is common nusance, any of the king's subjects passing that way may cut it down, and destroy it (i) (5). * And the rea- destroy it. son why the law allows this private and summary method The reason. 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 (6). a erected across highway any body may cut it down and [*6 ] damage-feasant. V. A fifth case, in which the law allows a man to be V. Of distrainhis own avenger, or to minister redress to himself, is that ing for rent or of distreining cattle or goods for non-payment of rent, or other duties; or, distreining another's cattle damagefeasant, 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 (g) 5 Rep. 101. 9 Rep. 55. (h) Salk. 459. (5) Whether the law would justify more than a sufficient removal of the gate may be doubtful; its total destruction, if unnecessary, may be ill justified. See Dalt. c. 50. 9 R. 53. Godb. 221. Str. 686. (i) Cro. Car. 184. Com. Dig. titles Action upon the (6) Consult for the former decisions i. 393. 1. Distress, the taking of what chattel from whom by whom, to pro for the wrong committed. 1. Distress for 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 dis tresses. 1. And, first, it is necessary to premise, that a distress (j), districtio, is the taking of a personal chattel out of the possession of the wrongdoer into the custody of the cure satisfaction 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 nonpayment of rent. It was rent most usual. observed in a former volume (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 2. For neglect injury to him that is entitled to receive it (8). 2. For neglecting to do suit to the lord's court (4), 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). [*7 ] of suit at the lord's court. 3. For amercements in courtleet. (j) The thing itself taken by this process, as well as the process itself, is in our law books very frequently called a distress. (7) See vol. ii. p. 42. (8) In order to entitle a landlord to this remedy for rent due, there must be an actual demise; mere occupation of (k) Book ii. ch. 3. (1) Bro. Abr. tit. Distress, 15. premises is insufficient. See 2 Taunt. 148. 5 B. & A. 322. And distress lies though for ready-furnished lodgings, 2 N. R. 224. beasts. 4. Another injury, for which distresses may be taken, is 4. For damagewhere a man finds beasts of a stranger wandering in his feasant by 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 sustained. 5. Lastly, for several duties and penalties inflicted by 5. For duties and penalties special acts of parliament, (as for assessments made by inflicted by acts commissioners of sewers (o), or for the relief of the of parliament. 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 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 distreined, 2. All chattels or taken in distress, we may lay it down as a general rule, personal may that all chattels personal are liable to be distreined, unless unless exparticularly protected or exempted. Instead therefore of empted, as mentioning what things are distreinable, it will be easier no man can to recount those which are not so, with the reason of their particular exemptions (r). And, 1. As every thing which things in which is distreined is presumed to be the property of the wrong- have absolute doer, it will follow that such things wherein no man can property, as dogs, cats, rabhave an absolute and valuable property (as dogs, cats, bits, and all rabbits, and all animals feræ naturæ) 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 occupa- So whatever is animals fere nature; except sale, &c. (p) Stat. 43 Eliz. c. 2. (q) 4 Burr. 589. Davis v. Powel, C. B. Hil. 11 Geo. II. use of a man; as an ax while cutting wood; a horse whilst feasant. But horse in a be shod, or in a in the personal tion of any man, is for the time privileged and protected from any distress; as an ax with which a man is cutting wood, or a horse while a man is riding him. But horses, he is riding him; drawing a cart, may (cart and all) be distreined for rentunless damage- arrere; and also, if a horse, though a man be riding him, see note below. be taken damage-feasant, or trespassing in another's grounds, the horse (notwithstanding his rider) may be 3. Things in the distreined and led away to the pound (t) (9). 3. Valuable way of trade, as things in the way of trade shall not be liable to distress (10). smith's shop to As a horse standing in a smith's shop to be shoed, or in a common inn; or cloth at a taylor's house (11); or corn sent to a mill, or a market (12). 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 customers. 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 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. With regard to a stranger's beasts which are found on the tenant's land, the following But generally all goods on the premises, whether belonging to tenant or stranger, are liable to rent. As stranger's beasts. (t) 1 Sid. 440. (9) That the law is otherwise, see the authorities collected Harg. Co. Litt. 47. And it appears to be now settled that the horse when ridden damage-feasant cannot be distrained. 6 T. R. 138. (10) Goods at a factor's are not distrainable. 6 J. B. Moore, 243. 3 B. & B. 75. S. C. (11) A man's letting out a close as a halting place of cattle on the way to market, &c. can scarcely be said to be following a trade, and therefore proba bly the reason for such cattle being still liable to distress for rent; and I do not find the MS. case of Tate v. Gleed, cited by Mr. Christian in a subsequent edition, recognized. It would be strange anomaly in our law, indeed, were cattle whilst resting, held undistrainable for the rent of the close, and the goods of a mere lodger held liable to be distrained for rent due to the original landlord of the house. (12) 4 T. R. 568. * and couchant is tress. 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) (13). 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 [*9 ] sufficiently fenced so as to keep out cattle, the landlord But if lands not cannot distrein them, till they have been levant and couch- fenced, levant ant (levantes et cubantes) on the land; that is, have been necessary to long enough there to have laid down and rose up to feed; warrant diswhich in general is held to be one night at least: 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 But if lessor were bound to repair the fences, and did not, and thereby and do not, catthe cattle escaped into their grounds without the negli- tle escaping into his ground not gence or default of the owner; in this case, though the distrainable, cattle may have been levant and couchant, yet they are though levant 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. 4. There Tools and utenare also other things privileged by the ancient common law; as a man's tools and utensils of his trade (14); the ax 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 (v) Cro. Eliz. 549. (u) Co. Litt. 47. (13) 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 an action against the farmer: the principle of this law extends to (w) Lutw. 1580. public livery stables, to which, if horses bound to fence and couchant, unless after notice. sils of trade. |