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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, (7) 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) cannot be [*8] distrained. Yet if deer (which are fere nature) 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 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. (t) (8) 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. (9) But, generally speaking, whatever goods and chattels the landlord
(r) Co. Litt. 47.
(8) Davis v. Powell, C. B. Hil. 11 Geo. II.
(t) 1 Sid. 440.
(7) [Besides the rules in the text, it is a maxim of law, that goods in the custody of the law cannot be distrained; thus goods distrained, damage-feasant, cannot be distrained: Co. Litt. 47, a; so goods taken in execution: Willes, 131: but the goods so taken must be removed from the premises within a reasonable time, or they will not be protected, 1 Price, 277; 1 M. and S. 711; however, growing corn, sold under a writ of fi. fa., cannot be distrained, unless the purchaser allow it to remain uncut an unreasonable time after it is ripe: 2 B. and B. 362: 5 Moore, 97, S. C.: but goods, taken under a void outlawry, are liable to distress. 7 T. R. 259. For the protection of landlords, by the 8 Ann. c. 14. s. 1, no goods taken in execution upon any premises demised can be removed until rent, not exceeding one year's arrear, be paid. Only rent due at the time of the levy can be obtained under the act: 1 M. and S. 245; 1 Price, 274; but forehand rent, or rent stipulated to be paid in advance, may be obtained. 7 Price, 690. If the sheriff remove the goods without payment of the rent, and after notice and a formal demand of the rent, an action on the case lies against him. 3 Stra. 97; 3 B. and A. 440. But no specific and formal notice is necessary. 3 B. and A. 645; 4 Moore, 473; 2 B. and B. 67, S. C. The action lies, though part only of the goods be removed; 4 Moore, 473; 2 B. and B. 67, S. C.; but the landlord's consenting to the removal waives his remedy. 3 Camp. 24. Instead of an action, the landlord may move the court out of which the execution issued, that he may be paid what is due to him out of the money levied, and in the sheriff's hands: Cas. Tem. Hardw. 255; 2 Wils. 140; and the court will grant the motion, though the sheriff had no notice of the rent due till after the removal. 3 B. and A. 440.
The county court act, 19 and 20 Vic. c. 103, contains a provision analogous to that of the statute of Anne. It enacts that where goods in a tenement for which rent is due are taken in execution under the warrant of a county court, the landlord may claim the rent due him bydelivering a notice to the bailiff making the levy, and such bailiff shall then, in making the levy, distrain also for the rent so claimed. See Beard v. Knight, 8 E. and B. 865.]
(8) The court of king's bench, in Storey 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 the notes thereto, 1 Smith Lead. Cas. 187.
(9) Goods of a principal in the hands of a factor are privileged from distress for rent due from such factor to his landlord, on the ground that the rule of public convenience, out of which the privilege arises, is within the exception of a landlord's general right to distrain, and therefore that such goods are protected for the benefit of trade. 6 Moore Rep. 243; 3 B. and B. 75, S. C. So goods landed at a wharf and consigned to a broker, as agent of the con siguor, for sale, and placed by the broker in the wharfinger's warehouse for safe custody until
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) (10) So also of 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, the landlord cannot distrain them, till they have [*9] 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: (11) 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. (12) 4. 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. (13) So, beasts of the
an opportunity for selling them should occur, are not distrainable for rent due in respect of the wharf and warehouse, as they were brought to the wharf in the course of trade. 1 Bing. 283. So goods carried to be weighed, even at a private beam, if in the way of trade, are excmpt; so is a horse that has carried corn to a mill to be ground, and during the grinding of the corn is tied to the mill door. Cro. Eliz. 549, 596. Goods in a public fair are exempt from distress, unless for toll due from the owner. 2 Lutw. 1380. Goods in possession of a carrier are also exempt, and this though the carrier be not a public one. 1 Salk. 249.]
Upon the subject of exemptions from distress the following American cases are referred to: Himely v. Wyatt, 1 Bay, 102; Phaelon v. McBride, id. 170; Youngblood v. Lowrey, 2 McCord, 39; Walker v. Johnson, 4 id. 552; Hoskins v. Paul, 4 Halst. 110; Brown v. 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. (10) [Except where they are on the way to a distant market, and are put in to rest for the night, in which case they are privileged for the public benefit. Tate v. Gleed, 2 Wms. Saund. 290, n. 7.] (11) [Levant and couchant in this sense means, that the cattle must be lying down and rising up on the premises for a night and a day, without pursuit made by the owner of them. Gilb. Dis. by Hunt, 3d ed. 47.]
(12) [In the case of Poole v. Longuevill, 2 Saund. 289, the contrary was determined, but that case was overruled in 2 Lutw. 1580, and the result of the cases seems to be, that if a stranger's beasts escape into another's land, by default of the owner of the beasts, as by breaking the fences, otherwise sufficient, they may be distrained for rent immediately, with out being levant and couchant; but that if they escape there by default of the tenant of the land, or for want of his keeping a sufficient fence, then they cannot be distrained for rent or service of any kind till they have been levant and couchant, nor afterwards by a landlord for rent on a lease, unless the owner of the beasts neglect or refuse, after actual notice, to remove them within a reasonable time; but it is said, that such notice is not necessary where the distress is by the lord of the fee, or by the grantee of a rent-charge. 2 Lutw. 1573; Co. Litt 47, b. n. 3; Gilb. Dis. by Hunt, 3d ed. 45; 2 Saund. 290, n. 7, 285, n. 4. See also Singleton v. Williamson, 7 H. and N. 410.]
(13) [A stocking frame, (Wills, 512), or a loom, (4 T. R. 565), being implements of trade, cannot be distrained; but it must be observed, that utensils and implements of trade may bo
plough avaria carucæ, and sheep, are privileged from distresses at common law; (x) while dead goods or other sorts 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 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. (z) 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 being only in the [*10] 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. (14) 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. (15)
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 necessary, the differences between such distress, and one taken for other causes.
*In the first place then all distresses must be made by day (16) unless [*11] in the case of damage-feasant; an exception being there allowed, lest
(x) Stat. 51 Hen. III, st. 4, de districtiones scaccaru.
(y) 1 Burr. 589.
(z) Ibid. 588.
distrained where they are not in actual use, and no other sufficient distress can be found on the premises. Co. Litt 47, a; 4 T. R. 565. This rule of exemption does not extend to cases where a distress is given in the nature of an execution by any particular statute, as for poor rates and the like: 3 Salk. 136; 1 Burr. 579; Lord Raym. 384; 1 Salk. 249; S. C.; nor where the distress is for damage-feasant. Com. Dig. Distress, B. 4.]
(14) [Co. Litt. 47, b. This rule extends to such things as are essentially parts of the freehold, although for a time removed therefrom, as a millstone, removed to be picked. 4 T. R. 567.]
(15) [The act applies only to corn and other produce of the land which may become ripe and are capable of being cut and laid up; therefore trees, shrubs and plants, growing on land which the defendants had demised to the plaintiffs for a term, and which they had converted into a nursery ground, and planted subsequently to the demise, were held not distrainable by the former for rent. 2 Moore, 491; 8 Taunt. 431, S. C.; 3 Moore, 114, S. P.
To these heads of things not distrainable may be added, all goods in the custody of the law, whether as being already distrained damage-feasant, or taken in execution. In this last case, however, so long as they remain on the premises, the statute 8 Ann. c. 14, gives the landlord a beneficial lien on them, for which see post, p. 417.]
As to the exemption from distress of goods in the custody of the law, see Taylor's Land. and Ten. § 594, et seq.
(16) [The distress cannot be made till the day after the rent falls due, unless, indeed, there be an agreement or local custom to the contrary. Gilb. Dist. 56, etc.: Hargrave's Co. Litt
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 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 peaceofficer 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. (17)
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. (ƒ) (18) 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 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 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) (19)
(a) Co. Litt. 142.
(d) Co. Litt. 161.
(b) Stat. 8 Ann. c. 14. (c) Stat. 8 Ann. c. 14. . 11 Geo. 11, c. 19. Comberb. 17. (e) Stat. 11 Geo. II, c. 19. (ƒ) 2 Lutw. 1532. Stat. 17 Carr. II, c. 7. 1 Burr. 590. (h) 2 Inst. 107. (i) Bro. Abr. t. assise, 291, prerogative, 98. (j) 1 Ventr. 104. Fitzgibb. 85. 1 Burr. 590.
(g) Cro. Eliz, 13.
47, b. n. 6. The distress must not be made after tender of payment of the entire rent due. According to 8 Co. 147, a.; Gilb. Dist. by Hunt, 76 etc.; 3 Stark. 171; 1 Taunt. 261, tender upon the land before the distress makes the distress tortious; tender after the distress, and before the impounding, makes the detainer, and not the taking, wrongful; tender after impounding makes neither the one nor the other wrongful; but in the case of a distress for rent, upon the equity of the 2 W. and M. c. 5, a sale of the distress after tender of the rent and costs, would be illegal.]
(17) [A landlord who enters on his tenant's premises to distrain, is justified in breaking an outer door in the ordinary way in which other persons can do it when it is left so as to be accessible to all who have occasion to go into the premises Ryan v. Shilcock, 7 Exch. 72; but he cannot break open an outer door of a stable, although not within the curtilage, to levy a distress. Brown v. Glenn, 16 Q. B. 254. See further as to the mode of entry to distrain, Hancock v. Austin, 14 C. B. N. S. 634; Nash v. Lucas, L. R. 2 Q. B. 590.]
(18) [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 Salk. 248; 11 East, 54.]
(19) [And see 2 Stra. 851; 3 Leon. 48. See exceptions, 1 Burr. 582; 1 H. Bla. 13; 9 East 298. It is no bar to this action, that between the distress and sale of the goods distrained, the
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 like; 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. (7)
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 and 2 P. and 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 same shire; and within three [*13] miles of the place where it was taken. 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 pound-covert, in a stable or the like, the landlord or distrainor must feed and sustain them. (m) (20) 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.
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 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 at 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 law only in nature of a
[*14] 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 at all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always salable at common
(k) Co. Litt. 160, 161.
(8) Co. Litt. 47.
(n) Cro. Jac. 148.
parties came to an agreement respecting the sale; 1 Bing. 401; 4 D. and R. 539; 2 B. and C. 821, S. C.; and the action is sustainable though there was a tender of the rent before the distress was made. 2 D. and R. 250. Where more rent is distrained for than is due, the remedy is at common law, and is not founded on the 52 Hen. III, c. 4; nor on the 2 W. and M. c. 5, §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 and full costs. 2 W. and M. sess. 1, c. 5, $5.]
(20) This subject is covered by the statute 12 and 13 Vic. c. 92, amended by 17 and 18 Vic. c.,60.