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, the landlord cannot distrain them till they have been levant and [*9 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 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.13 3. There are also other things privileged by the antient 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 wealth in his station. So, beasts of the plough, averia carucæ, 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.(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 (v) Co. Litt. 47. () Lutw. 1580. (*) Stat. 51 Hen. III. st. 4, de districtiones caccania. 15 () 1 Burr. 589. 12 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. 13 In the case of Poole vs. 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. Dist. by Hunt, 3d edit. 45. 2 Saund. 290, n. 7, 285, n. 4. See further, Vin. Abr. Fences.-CHITTY. 14 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. 1 Burr. 579. Lord Raym. 384. 1 Salk. 249, S. C.,) nor where the distress is for damage-feasant. Com. Dig. Distress, B. 4.-CHITTY. 15 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 freehold, distrainable.—CHITTY. *10] *common law being only in the nature of pledge or security, to be restored in the same plight when the debt is paid. So, antiently, 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.16 6. Lastly, things fixed to the freehold may not be distrained; and 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 cut and gather them when ripe.18 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 antient 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. *11] *In the first place then, all distresses must be made by day," unless in the case of damage-feasant; an exception being there allowed, lest the 16 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. 17 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. II. Chitty's Law of Descents, 256, 257. 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.-CHITTY. 18 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 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 11 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 vs. Gaskarth, 8 Taunt. 431.-COLERIDGE. 19 Mirrour, c. 2, s. 26. See also 7 Rep. 7, a. The distress cannot be made until the day after the rent falls due, unless, indeed, there be any agreement or local custom to 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.20 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 bond fide sold for 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. 22 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)” 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) a) Co. Litt. 142. Stat. 8 Anne, c. 14. (e) Stat. 8 Anne, c. 14. 11 Geo. II. c. 19. () Stat. 11 Geo. II. c. 19. (#) Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 1 Burr. 590. [*12 contrary. Gilb. Dist. 56, &c. Hargrave's Co. Litt. 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. and M. c. 5, a sale of the distress after tender of the rent and costs would be illegal.-CHITTY. 20 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. 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 waygoing crop remained. See 1 Selw. N. P. 6 ed. 681.-CHITTY. 21 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.—CHITTY. 22 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. 23 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. 1 Salk. 248 11 East, 54.-CHITTY. BOOK 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.() A pound (parcus, which signifies any enclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 P. and M. c. 12, no distress of cattle can be driven out of the hundred where it is taken, *13] *unless to a pound-overt within the same shire, and within three 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)25 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 24 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 dis trained, the parties came to an arrangement respecting the sale, (1 Bing. 401. 4 D. & R. 539. 2 B. & C. 821, S. C.;) and the action is sustainable though there was a tender of the rent before the distress was made. 2 D. & 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, s. 5. Stra. 151. 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, s. 5.-CHITTY. 25 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.-CHITTY. 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 *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. [*14 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 law.(0) 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 statutedistresses 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,26 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 parlia ment. 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 committed it vitiated the whole and made the distrainors trespassers ab initio.(s) But now, by the But now, by the [*15 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, 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 heriot-service, and is only a species of rent, the lord may distrain for this as well as seize; but for heriot-custom (which Sir Edward Čoke says(t) lies only in prender, and not in () Bro. Abr. tit. distress, 71. (P) 8 Rep. 41. (9) Bro. ibid. 12 Mod. 330. (*) 2 W. and M. c. 5. 8 Anne, c. 14. 4 Geo. II. c. 28. 11 Geo. II. c. 19. () 1 Ventr. 37. 26 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 first, they must not be sold before the sixth. 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. 4 B. & A. 208. 1 B. & C. 145. Though the act authorizes a sale after the five days, it does not take away the right to replevy after the five days in case the distress is not sold; but it would be otherwise after a sale. 5 Taunt. 451. 1 Marsh. 135. By the consent of the tenant, the landlord may continue in possession longer than the five days without incurring any liability; and his so continuing in possession will not of itself create any presumption of collusion between him and the tenant to defeat an execution. 7 Price, 690.-CHITTY. |