(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. one cow, two swine, and their necessary food: all necessary pork, beef, fish, flour, and vegetables actually provided for the family; and fuel necessary for the family for 60 days. 5. All necessary wearing apparel, beds, bedsteads and bedding for the family; arms and accoutrements required to be kept by law; necessary cooking utensils; one table, six chairs, six knives and forks, plates, teacups and saucers, and spoons; one sugar dish, milk pot, teapot, crane and its appendages, one pair of andirons, and a shovel and tongs. 6. The tools and implements of a mechanic necessary for his trade not exceeding 25 dollars in value. (Id. 367, § 22). (23) 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. BroAb. Distress, pl. 23. 4 T. R. 567; as to what are fixtures, see 2 Chit. Com. Law, 268. Com. Dig. Biens. H. Chitty's Law of Descents, 256, 7. 4 Moore, 281. 440. 2 D. & R. 1. 5 B. & A. 826. 2 Stark. 403. 2 B. & C. 608. 4 D. & R. 62. S. C. 1 M'Clelan Rep. Ex. 217. (24) 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 defendant had demised to the plaintiffs for a term, and which they had (b) Stat. 8 Ann. c. 14. 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.; and see ante, note 18. as to time of sale. 3 B. & A. 470. (25) In New-York, the produce of the soil, or articles annexed to the freehold, cannot be removed till sold. (2 R. S. 502, ◊ 11.) (26) In New-York they may be sold by the sheriff or keeper of the pound. (2 R. S. 518, 5, 13). a. (27) Mirrour, c. 2. s. 26. see also 7 Rep. 7 The distress cannot be made till the day after the rent falls due, unless, indeed, there be any agreement or local custom to the con trary. Gilb. Dist. 56, &c. Hargrave's Co.' Lit. 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, &c. 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. & M. c. 5, a sale of the distress, after tender of the rent and costs, would be illegal. 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 the 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 (c) Stat. 8 Ann. c. 14. 11 Geo. II. c. 19. (28) Ante 8. n. 8. Although this proviso is in terms confined to the possession of the tenant, yet it has been holden, that where the tenant dies before the term expires, and his personal representative continue in possession during the remainder and after the expiration of the term, the landlord may distrain within six calendar months after the end of the term for rent due for the whole term. 1 H. Bla. 465. And in 1 H. Bla. 7. n. a. it was holden, that the term was continued by the custom of the country for the purpose of giving a right to the landlord to distrain on the premises in which the way going crop remained. See 1 Selw. N. P. 6 ed. 681. (29) See 11 Geo. II. c. 19. sects. 1, 2, 3. The act is remedial, not penal, 9 Price, 30. It applies to the goods of the tenant only which are fraudulently removed, and not those of a stranger. 5 M. & S. 38. And the rent must be in arrear at the time of the removal. 1 Saund. 284. a. 3 Esp. 15. 2 Saund. 2. n. b. sed vid. 4 Camp. 136. (30) In New-York, the goods may be followed within 30 days after their removal, if rent were due at the time of their removal or (g) Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 1 Burr 590. (h) 2 Inst. 107. becomes due in 30 days after: if not then due, they must be followed in 30 days after the rent does become due. (2 R. S. 502, § 15). (31) See accordingly in New-York. (2 R. S. 502, § 12). (32) If the lord come to distrain cattle which he sees within his fee, and the tenant, or any person, to prevent the lord from distraining, drive the cattle out of the lord's fee into some other place, yet he may pursue and take the cattle. Co. Litt. 161. a. But this rule does not hold to distresses damage-feasant, which must be made on the land. Id. (33) See 2 R. S. 503, § 18. (34) It may be as well here to observe, that if a landlord come into a house and seize upon some goods as a distress, in the name of all the goods of the house, that will be a good seizure of all. 6 Mod. 215. 9 Vin. Ab. 127. But a fresh distress may be made on the same goods, which have been replevied, for subsequent arrears of rent. 1 Taunt. 218. So 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 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 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 (1). 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 & 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. (i) Bro. Abr. t. assise, 291. prerogative, 98. (35) See 2 R. S. 503, § 19, in New-York. 5 (2) Co. Litt. 47. and full costs. 2 W. & M. sess. 1. c. 5. s. 5. 2 R. S. 504, § 27, in New-York. (37) In New-York, if the distress be for rent, the pound must be a pound overt in the county, or such other convenient place as the officer distraining may approve. (2 R. S. 503, 20). If the distress be for damage-feasant, the pound must be the nearest in the county. (Id. 517, § 4). The owner may feed them; if he do not do it, it would seem the pound keeper should. (Id. § 5, &e). (38) The distrainor cannot tie up cattle impounded; and if he tie a beast and it is strangled, he will be liable in damages. 1 Salk. 248. If the distress be lost by act of God, as by death, the distrainor may distrain again. 11 East, 51. Burr. 1738. 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 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 (o). 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 (q); 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. (39) A reasonable time after the expiration of the five days is allowed to the landlord for appraising and selling the goods. 4 B. & A. 208. sed vid. 1 H. Bla.. 15. The five days are reckoned inclusive of the day of sale; as if the goods are distrained on the 1st, they must not be sold before the 6th. 1 H. Bla. 13. An action lies on the equity of this act for selling within the five days. Semb. id. If the distrainor continue in possession more than a reasonable time beyond the five days, an action of case or trespass lies on the equity of the statute. 11 East, 395. Stra. 717. (g) Bro. Ibid. 12 Mod. 330. (r) 2 W. & M. c. 5. 8 Ann. c. 14. 4 Geo. II. c. 28. 11 Geo. II. c. 19. Though the 4 B. & A. 208. 1 B. & C. 145. Before I quit this article, I must observe, that the many particulars which attend the taking of a distress, used formerly to make it a hazardous kind of proceeding: for, if any one irregularity was [15] committed, it vitiated the whole, and made the distrainors tres passers ab initio (s) (40). But now by the statute 11 Geo. II. c. 19. it is provided, that, for any unlawful act done, the whole shall not be unlawful, or the parties trespassers ab initio: but that the party grieved shall only have an action for the real damage sustained (41), and not even that, if tender of amends is made before any action is brought. VI. The seizing of heriots, when due on the death of a tenant, is also another species of self-remedy; not much unlike that of taking cattle or goods in distress. As for that division of heriots, which is called heriotservice, and is only a species of rent, the lord may distrain for this, as well as seize, but for heriot-custom (which sir Edward Coke says (t) lies only in prender, and not in render) the lord may seize the identical thing itself, but cannot distrain any other chattel for it (u). The like speedy and effectual remedy, of seizing, is given with regard to many things that are said to lie in franchise; as waifs, wrecks, estrays, deodands, and the like; all which the person entitled thereto may seize, without the formal process of a suit or action. Not that they are debarred of this remedy by action; but have also the other and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature, as might be out of the reach of the law before any action could be brought. These are the several species of remedies which may be had by the mere act of the party injured. I shall next briefly mention such as arise from the joint act of all the parties together. And these are only two, accord and arbitration. I. Accord is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar of all actions upon this account. As if a man contract *to build a house or [*16] deliver a horse, and fail in it; this is an injury for which the suf ferer may have his remedy by action; but if the party injured accepts a sum of money, or other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action (w) (42). By several late sta (s) 1 Ventr. 37. (1) Cop. 25. (u) Cro. Eliz. 590. Cro. Car. 260. (40) In the case of a distress for damage- tiff and defendant should each deliver up his feasant, this is still the law. (41) See 2 R. S. 504, § 28. (42) See in general, Com. Dig. Accord, Bac. Ab. Accord. The mere consent of a party to accept a satisfaction, without an actual satisfaction, is not sufficient to discharge the other; the accord and satisfaction must be perfect, complete, and executed, for were it otherwise, it would be only substituting one cause of action for another, which might go on to any extent. 9 Rep. 79. b. 5. T. R. 141. Satisfaction must be made to the whole of the original demand, and a party will not be discharged upon performance of a satisfaction to part of such demand, the residue remaining unperformed. 1 Taunt. 526. 5 East, 230. The performance of one of two things stipulated for by an accord is nugatory, Lord Raym. 203; and where it was agreed that the plain part of an indenture to be cancelled, and the defendant had delivered up his part, this was held no accord and satisfaction. 3 Lev. 189. The accord and satisfaction must be certain ; an accord to pay a less sum on the same, or at a subsequent day, is not sufficient. 5 East, 230. So an accord, that the defendant shall employ workmen in two or three days, is bad, 4 Mod. 88; and performance of an uncertain accord will not aid the defect. 3 Lev. 189. Yelv. 124. We have already seen, ante 2 book, how far a contract may be varied, released, or discharged by another contract. A deed before breach cannot be discharged by accord and satisfaction without a deed. I Taunt. 428. Com. Dig. Pleader, 2. v. 8. but after breach accord and satisfaction without deed is a good plea, for there the satisfaction is of the breach. and not of the deed. Com. Dig. Accord, A. |