find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unla vfully annoys or doth damage to another is a nuisance; and such 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 neighbor'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. (2) *And the reason why the law allows this private and sum[*6] mary 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. Distress for rent.— 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; or, distraining another's cattle, 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. When allowed. And, first, it is necessary to premise, that a distress, () 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 (g) 5 Rep. 101. 9 Rep. 55. (h) Salk. 459. (i) Cro. Car. 184. The thing itself taken by this process, as well as the process itself, is in our law-books very frequently called a distress. Lean, 70; United States v. New Bedford Bridge, 1 Wood. and M. 401; Wheeling Bridge Case, 13 How. 518. A statutory penalty or other remedy for abating a private nuisance does not exclude the private remedy. Wetmore v. Tracy, 14 Wend. 250; State v. Moffett, 1 Greene, Iowa, 247. But in exercising the right to abate, as little injury is to be done as possible. Moffett v. Brewer, id. 348. And if the nuisance consists in occupying a building for an unlawful purpose, it seems that this does not justify tearing down the building: Welch v. Stowell, 2 Doug., Mich., 332; State v. Paul, 5 R. I. 185; Ely v. Supervisors, 36 N. Y. 297; Miller v. Burch, 32 Texas, 208; S. C., 5 Am. Rep. 242; though if the occupation is such as to breed disease, it has been held that it might be destroyed if necessary. Meeker v. Van Rensselaer, 15 Wend. 397. As to the right to abate private nuisances in general, see, further, Dimes v. Petley, 15 Q. B. 276; Jones v. Williams, 11 M. and W. 176; Davies v. Williams, 16 Q. B. 546; Hyde v. Graham, 1 H. and C. 593; Indianapolis v. Miller, 27 Ind. 394. The abatement must be without doing unnecessary injury. Roberts v. Rose, L. R. 1 Exch. 82; Indianapolis v. Miller, 27 Ind. 394. 1[Rockwell v. Nearing, 35 N. Y. 302.] usual injury, for which a distress may be taken, is that of nonpayment of rent. It was observed in a 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. So that now we may lay it down as an universal [*7] 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. 2. For neglecting to do suit to the lord's court, () or other certain personal service, (m) the lord may distrain 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) 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 sustained. 5. Lastly, for several duties and penalties inflicted by special acts of parliament (as for assessments made by commissioners of sewers, (o) or for relief of the 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 (4) 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 (that you cause to be made), of which hereafter. 2. Secondly, as to the things which may be distrained, or taken in distress, 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, cats, rabbits, and *all animals fera natura) (of a wild nature) cannot be dis[*8] trained. Yet if deer (which are fera natura) 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 merchandise, that they may be distrained for rent. (s) Whatever is in the personal use or occupation of any man, is for the time privileged and protected from 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 (k) Book II, ch. 3. (1) Bro. Abr. tit. Distress, 15. (m) Co. Litt. 46. (g) 1 Burr. 589. 1 be distrained and led away to the pound. (t) 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 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 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 distrainable 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 distrained, so that he cannot render them when called upon. With regard to a stranger's beasts which are found upon 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. (u) 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. (v) But if the lands were not sufficiently fenced so as to keep out cattle, [*9] 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: 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 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. 3 (v) Co. Litt. 47. 1 The court of king's bench, in Story v. Robinson, 6 T. R. 138, decided, contrary to this dictum, that such a distress could not be made, as it would lead to a breach of the peace. And see Field v. Adames, 12 Ad. and Ell. 649; Bunch v. Kennington, 1 Q. B. 679. As to what may and what may not be taken by distress, see Simpson v. Hartopp. Willes, 512, and notes thereto, 1 Smith Lead Cas. 187. Upon the subject of exemptions from distress, the following American cases are referred to: Himely v. Wyatt, 1 Bay, 102; Phaelon v. McBride, 1 Bay, 170; Youngblood v. Lowrey, 2 McCord, 39; Walker v. Johnson, 4 McCord, 552; Hoskins v. Paul, 9 N. J. 110; Brown v. (w) Lutw. 1580. Sims, 17 S. and R. 138; Stone v. Mathews, 7 Hill, 428; Connah v. Hale, 23 Wend. 462. These cases hold, generally, that wherever the tenant, in the regular course of his business, comes into possession of the goods of his customers, they are not subject to distress for his rent. See Riddle v. Welden, 5 Whart. 9. Many of the United States have, by statute, abolished the landlord's remedy by distress. [And it follows that the owner may under such circumstances reclaim them and enter to retake if he can do so peaceably. Ante, p. 5; 1 Addison, Torts, §§ 375-78.] 4. Things exempt.-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 commonwealth in his station. So, beasts of the plough averia carucæ, and sheep, are privileged from distresses at common law; (2) while dead goods or other sorts of beasts, which Bracton calls catalla otiosa (chattels not privileged from distraint), may be distrained. 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. (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 distress at *common law [*10] 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 distrained, 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. and 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. 6. Lastly, things fixed to the freehold may not be distrained; as caldrons, windows, doors and chimney-pieces: for they savour of the realty. 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 cup and gather them when ripe. Procedure on distress.- 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. 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 (x) Stat. 51 Hen. III, st. 4, de districtione scaccarii (of exchequer distraint). (z) 1bid. 588. (y) 1 Burr. 589. necessary, the differences between such distress, and one taken for other causes. Time.-*In the first place then all distresses must be made by day unless in the case of damage-feasant; an exception [*11] being there allowed, lest the beasts should escape before they are taken. (a) Place. 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 title or interest, as well as the tenant's possession, continue at the time of the distress. If the lessor does not find sufficient distress on the premises, formerly he could resort nowhere 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 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 a valuable consideration: and all persons privy to, or assisting in, such fraudulent conveyance, forfeit double the value to the landlord. The landlord may also distrain the beasts of his tenant, feeding upon any commons or wastes, appendant or appurtenant to the demised premises. 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 daytime 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. Amount of seizure.- 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 another. (f) But if he distrains for the whole, and there is not sufficient on the premises, or he happens to mistake in the value of the thing distrained, and [*12] 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 twelvepence rent; the taking 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. (2) For as these distresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. (a) Co. Litt. 142. (b) Stat. 8 Ann. c. 14. (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, (9) Cro. Eliz. 13. Stat. 17 Car. II, c. 7. 1 Burr. 590. (h) 2 Inst. 107. (i) Bro. Abr. t. assise, 291, prerogative, 98. |