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.

J

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 (1), 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 sus

(j) 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.

made for rent of a ready furnished house or lodging, because it is then considered that the rent issues out of the principal, the real property demised. 2 New. Rep. 224.

Accepting a note of hand, and giving a receipt for the rent, does not, till payment, preclude the landlord from distraining; and so if the landlord accept a bond; but a judgment, obtained on either of such instruments, would preclude the right of distress.* See Bull. N. P. 182. An agreement to take interest on rent in arrear, does not take away the right of distress. 2 Chit. R. 245. Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had in equity. Per Comyns, B. Exch. Trin. 5 & 6 Geo. II. 1 Selw. N. P. 6. ed. 673.

To entitle a person to distrain for non-pay. ment of money, it must be due under a demise, and for rent fixed and certain in its nature; and therefore, if a person be let into possession under an agreement for a lease which

(1) Bro. Abr. tit. distress, 15.
(m) Co. Litt. 47.
(n) Brownl. 36.

13

does not contain words of immediate demise,
no distress can be made, unless from a previ-
ous payment of rent or other circumstance, a
tenancy from year to year can be inferred, and
the only remedy is by action for use and occu-
pation. 2 Taunt. 148. 5 B. & A. 322.
East, 19. So as lord Coke quaintly says,
(Co. Lit. 96. a.) it is a maxim in law, that no
distress can be taken for any services that are
not put into certainty, nor can be reduced to
any certainty, for id certum est quod certum
reddi potest, but yet in some cases there may
be a certainty in uncertainty. Therefore if a
man hold land, paying so much per acre, al-
though in the terms of the demise the number
of acres be not fixed, the lord may distrain.
Vin. Ab. Distress, E. See form of avowry, 3
Chitty on Pl. 4th edit. 1051. But where an
estate has been let without in any way fixing the
amount of rent, the only remedy is by action.

(9) See, however, 2 book, p. 42. and Co. 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 (0), or for the 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 distress (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 here

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,

[ *8] cats, rabbits, and all animals feræ naturæ) cannot be 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 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

(s) Davis v. Powl. C. B. Hil. 11 Geo. II. (12).

(12) See this case fully reported, Willes Rep. 46.

(13) But this doctrine is contrary to Sayer Rep. 139. 2 Keb. 596. Cro. Eliz. 596. Co. Litt. 47. a. Rol. Ab. Distress, A. pl. 4; and was expressly overruled in 6 Term R. 138. on the ground that the distraining a horse as damage-feasant, whilst any person is riding him, would perpetually lead to a breach of the peace. And it has been held, that nets or ferrets cannot be taken damage-feasant in a warren, if they are in the hands of the person using them. Harg. Co. Litt. note 13. Cro. Eliz. 550. So a loom cannot be distrained while in the hands of the weaver, Willes, 517; nor wearing apparel, if in actual use; but if put off, though only for the purpose of repose, it is liable to be distrained. 1 Esp. Rep. 206. Peake's Rep. 36. S. C.

(14) As to this exception in favour of trade, see Gilb. Dis. by Hunt, 39; so cattle and goods of a guest at an inn are not distrainable for rent, but a chariot or horses standing at livery are not exempt. 2 Burr. 1498. Mr. Sergt. Williams, in 2 Saund. 290. n. 7. suggests, that it should seem that at this day a court of law would be of opinion, that cattle belonging to a drover being put into ground with the consent of the occupier, to graze only one night on their way to a fair or market, are not liable to the distress of the landlord for rent; and lord Nottingham intimated the same opinion in 2 Vern. 130; and Mr. Christian, in his edition, has the following note of a decision to the same effect: "Cattle driven to a distant market, and put into land to rest for one night, cannot be distrained for rent by the owner of the land, such protection being absolutely for the public interest." Tate v. Gleed, C. P. Hil. 24 Geo. II. Gilb. Dis. by Hunt, 47. It was before held, that cattle going to London,

() 1 Sid. 440.

and put into a close with the consent of the landlord and leave of the tenant, to graze for a night, might be distrained by the landlord for rent, 3 Lev. 260. 2 Vent. 50. 2 Lutw. 1161; but the owner of the cattle was afterwards relieved in equity on the ground of fraudulent connivance and concealment of the demand for rent by the landlord, and he was decreed to pay all costs both of law and equity. 2 Vern. 129. Prec. Ch. 7. Gilb. Dis. by Hunt, 47. As courts of law now take notice of fraud as well as courts of equity, when it can be fully proved, there would now be the same result at law.

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. & B. 75. S. C. So goods landed at a wharf and consigned to a broker, as agent of the consignor, for sale, and placed by the broker in the wharfinger's warehouse for safe custody until 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 exempt; 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.

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

(v) Cro. Eliz. 549. (u) Co. Litt. 47.

(15) 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 action against the farmer; the principle of this rule extends to public livery stables, to which, if horses and carriages are sent to stand, it is determined that they are distrainable by the landlord, as if they were in any public place, 3 Burr. 1498; so upon the same principle the goods of lodgers, or any other person, on the premises, are liable to be distrained; and to exempt goods from distress on the ground of their being in an inn, they must be within the very precincts of the inn, and not on other premises at a distance belonging to it, Barnes, 472; and even within the inn itself the exemption does not extend to a person dwelling therein, as a tenant, rather than a guest. 1 Bla. Rep. 484.

As to the remedy over by an under-tenant or lodger, see the cases cited in 3 Bar. & Cres. 789, in which it was held, that where the tenant of premises had underlet a part by deed, and the original landlord distrained for rent upon the under-tenant, the latter could not support assumpsit against his immediate lessor, upon an implied promise to indemnify him against the rent payable to the superior landlord.

(w) Lutw. 1580.

(16) 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 edit. 47.

(17) 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, without 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 edit. 45. 2 Saund. 290. n. 7. 285. n. 4. See further, Vin. Ab. Fences.

wealth in his station (18). So, beasts of the plough (19), averia carucae, and sheep, are privileged from distresses, at common law (x); while dead goods, or other sort 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 distress 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 [*10] distress at *common law being only in the nature of 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 accure in their removal, but a cart loaded with corn might; as that could be safely restored. But now by statute 2 W. & 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 (20), (21). 6. Lastly, things fixed to the freehold may not be distrained; and caldrons, windows, doors, and chimney-pieces: for they savour of the realty (22),

(z) Stat. 51 Hen. III. st. 4. de districtiones caccania.

(18) A stocking frame, Willes, 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 be 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. And it should seem, that if there be reasonable ground for presuming there are not sufficient other goods, the party may distrain implements of trade, and is not bound to sell the other goods first. 6 Price Rep. 3. 2 Chitty's R. 167. And 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.

(19) In actual use, but not otherwise. 4 T. R. 566. Also see 2 Inst. 132, where other authorities are collected. The modern case

just cited contains much learning upon what is, and what is not, with reference to the free hold, distrainable.

(20) See accordingly in New-York, 2 R. S. 501, 10, pt. 2.

(21) This provision extends to corn in whatever state it may be, whether thrashed or unthrashed, 1 Lutw. 214; and, as observed by Mr. Bradby, inasmuch as this statute directs the distress to be sold, unless replevied within five days, perhaps the rule of the ancient common law, with respect to the perishable nature of the distress, no longer extends in the case of a distress for rent, to any thing which is not liable to deterioration within the five days. Bradby on Distr. 213. A sale by a landlord of

(y) 1 Burr. 589.
(z) Ibid. 589.

standing corn, taken as a distress before it is ripe, is void, and the tenant need not replevy, neither can he sue the seller, in an action on the case, for selling such corn before the expiration of five days. 3 B. & A. 470.

(22) But if annexed for the purpose of trade or manufacture, and not fixed into the wall so as to be necessary for its support, they are distrainable in New-York. (2 R. S. 510, 10, pt. 2). By 2 R. S. 510, 10, whatever is exempt from execution is exempt from distress : (see specifications below). Beasts of the plough, sheep, and the implements of a mechanic's trade, cannot be distrained for rent, if other sufficient property can be found (Id. 502.

13). A landlord cannot distrain for rent personal property deposited, hired, or lent with his consent to the tenant, nor property of a stranger accidentally straying on the premises, or deposited with a tavern-keeper, or the keeper of any warehouse in the usual course of business, or deposited with any one to be repaired or manufactured, (id. 502. 14); the officer distraining is not, however, liable for taking the property mentioned in the last section without notice. The property exempt from execution and distress by 2 R. S. 367, 22, is the following, when owned by a householder, and the moveable articles continue exempt while the owner or his family is removing: viz. 1. All spinning wheels, weaving looms, and stoves put up or kept for use in any dwelling house. 2. The family bible, family pictures, and school books used in the family; and books of the family not exceeding 50 dollars in value. 3. A seat or pew in a church occupied by the family. 4. Ten sheep with their fleeces, and the yarn or cloth manufactured from them: