8

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. (27)

goods of a guest at an inn are not distrainable for rent, but a chariot or horses standing 2 Burr. 1498. Mr. Sergt. Williams, in 2 Saund. 290, n. 7, sugat livery are not exempt. gests 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. III. Gilb. Dist. by Hunt, 47. It was before held that cattle going to London, 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 As courts of law now take notice of Vern. 129. Prec. Ch. 7. Gilb. Dist. by Hunt, 47. 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 6 Moore 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.

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 I Bing. 283. So goods carried to be weighed, even at a wharf in the course of trade. 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 I Salk. 249.-CHITTY. So also are goods dethough the carrier be not a public one. posited in a warehouse by one other than the occupant and in the ordinary course of trade. Owen v. Boyle, 9 Shepley (Maine) 47 (1842). Walker v. Johnson et al., 4 McCord (S. Carolina) 552 (1828). And goods which have been sent to an auctioneer to be Adams v. Grane & Osborne, I sold on the premises cannot be distrained for rent. Exche'r (C. & M.) 380 (1833).

The American courts have adopted the principle stated in the text, and carried it out in application with great liberality. Thus, goods in an auctioneer's room, or in the store of one who takes merchandise on storage or on commission to sell, have been held to be Brown v. Simms, 17 Serg. & Rawle, 138. exempt. Hinely v. Wyatt, 1 Bay, 102. Walker v. Johnson, 4 McCord, 552. Bevan v. Crooks, 7 Watts & Serg. 452. So it has been held that the goods of a boarder are not liable to be distrained for rent due by the keeper of the boarding-house. Riddle v. Welden, 5 Wharton, 9. Stone v. Matthews, 7 Hill, 428.-SHARSWOOD.

(27) 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 I Bla. Rep. 484. dwelling therein as a tenant rather than a guest.

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.-CHITTY. Goods of a 1028

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. (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 the 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: (28) 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. (29) 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 commonwealth in his station. (30) So, beasts of the plough, 4, averia carucæ, (31) and sheep, are (u) Cro. Eliz. 549. (w) Lutw. 1580. (v) Co. Litt. 47.

stranger on the premises of a delinquent taxable are not exempt. Sears v. Cotterell, 6 Mich. 251, 266 (1858).

(28) 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. Dist. by Hunt, 3 edit. 47.-CHITTY.

(29) 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 t 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, b., n. 3. Gilb. Dist. by Hunt. 3d edit. 45. 2 Saund. 290, n. 7, 285, n. 4. See further, Vin. Abr. Fences.-CHITTY.

(30) 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's 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. I Burr. 579. Lord Raym. 384. I Salk. 249, S. C.,) nor where the distress is for damage-feasant. Com. Dig. Distress, B. 4.-CHITTY. Materials delivered by a manufacturer to a weaver cannot be distrained for rent due by the weaver. Wood v. Clark, I C. & J. 483, 497 (1831). Neither can goods left for sale at a store, Conah v. Hale, 23 Wend. 462, 478 (1840), nor pianos hired by tenants be taken by the landlord, Lazarus v. Dose, 3 Cape Good Hope, 42, 43 (1884-5); but things which are on a person's property to be manufactured, but which were not sent or delivered to such person by the owner, can be distrained for rent due by the tenant of the premises. Clark v. Millwall Dock Co., Law Rep. of Q. B. Div. 494, 500 (1886). Owen v. Boyle, 22 Me. 47, 76 (1842). (31) In actual use, but not otherwise. 4 T. R. 566. Also see 2 Inst. 132, where other

privileged from distresses at common law; (x) while dead goods, or other sort of beasts, which Bracton calls catalla otiosa, (32) 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:(33) 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, *10] and the like cannot be distrained, a 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. (34) 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. (35) 6. Lastly, things fixed to the freehold may not be distrained; and caldrons, windows, doors, and chimney-pieces; for they savor of the realty. (36) For this reason also corn growing could not be distrained, till the statute II Geo. II. c. 19 empowered landlords to distrain corn, grass, or other products of the earth, and to cut and gather them when ripe. (37)

(x) Stat. 51 Hen. III. st. 4, de districtiones caccania, [Of exchequer distraint].

(y) 1 Burr. 589.
(z) Ibid. 588.

authorities are collected. The modern case just cited contains much learning upon what is, and what is not with reference to the freehold, distrainable.—CHITTY.

(32) [Chattels not privileged from distraint.]

(33) Cook v. Wise, and Newton v. Wilson, 3 H. & M. (Va.) 483, 495 (1809).

(34) Binn's Justice (10 ed.) 338 (1895).

(35) This provision extends to corn in whatever state it may be, whether threshed or unthreshed, (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 Dist. 213. A sale by a landlord of 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.-CHITTY. Given v. Blann, 3 Blackford (Ind.) 64 (1832).

(36) Co. Litt. 47, b. This rule extends to such things as are essentially part of the household, although for a time removed therefrom, -as a millstone, removed to be picked. Bro. Abr. 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, 257. 4 Moore, 281, 440. 2 D. & R. I. 5 B. & A. 826. 2 Stark. 403. 2 B. & C. 608. 4 D. & R. 62, S. C. I M'Clelan Rep. Ex. 216.-CHITTY. The landlord cannot pursue and seize the goods of the tenant till the rent is due. If the tenant removed the goods when rent was due, the landlord may pursue and seize the goods within thirty days, and if no rent was due at the time of the removal, he may seize the goods within thirty days after the rent became due. Reynolds v. Shuler, 5 Cowen (N. Y.) 323, 329 (1826). Gilb. Dist. 56, etc. Hargrave's Co. Litt. 47, b. n. 6.

(37) 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 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. 3 B. & A. 470.-CHITTY.

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

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. (38) But, distresses for rentarrere 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, (39) [*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 title or interest as well as the tenant's possession, continue at the time of the distress. (40) 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 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

(a) Co. Litt. 142.

(b) Stat. 8 Anne, c. 14.

(c) Stat. 8 Anne, c. 14. 11 Geo. II. c. 19.

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last case, however, so long as they remain on the premises, the statute 8 Anne, c. 14 gives the landlord a beneficial lien on them, for which see post, p. 417. The words of the statute II Geo. II. c. 19 are, corn, grass, hops, roots, fruits, or other product growing on the estate demised." The court of Common Pleas has determined that the general word "product" does not extend beyond things of a similar nature with those before specified, to all of which the process of becoming ripe, and of being cut, gathered, made and laid up when ripe, was incidental. It was held therefore that nursery trees and shrubs could not be distrained. Clark v. Gaskarth, 8 Taunt. 431. -COLERIDGE.

(38) 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, I 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.-CHITTY. Brantley's Personal Property, 82. I Lomax's Digest, 550.

(39) Pulling v. The People, 8 N. V. 384, 388 (1850).

(40) 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 continues 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. I 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 I Selw. N. P. 6 ed. 681.-CHITTY. But a landlord cannot distrain goods belonging to the tenant which never have been upon the premises. Bradley v. Piggott, I Miss. 348. 349 (1829).

fraudulent conveyance forfeit double the value to the landlord. (41) The landlord may also distrain the beasts of his tenant feeding upon any commons or wastes appendant or appurtenant to the demised premises. (42) 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.

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)(43) But if he distrains for the whole, and there is not sufficient on the pre*12] mises, 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) (44)

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)

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)

(d) Co. Litt. 161. Comberb. 17.

(e) Stat. 11 Geo. II. c. 19.

(f) 2 Lutw. 1532.

(g) Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 1 Burr. 590.

(h) 2 Inst. 107.

(i) Bro. Abr. tit. assize, 291; prerogative, 98.
(j) 1 Ventr. 104. Fitzgibb. 85. 4 Burr. 590.
(k) Co. Litt. 160, 161.

(1) Co. Litt. 47.

(41) See II 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. I Saund. 284, a. 3 Esp. 15. 2 Saund. 2 n. b; sed vid. 4 Camp. 136.-CHITTY.

(42) 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.-CHITTY.

(43) 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. Abr. 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. I Salk. 248. II East, 54.-CHITTY.

(44) Where the distress is excessive, an action on the case is the proper remedy. Jamison v. Reefsneider, 97 Pa. 141 (1881).