Assignors cannot distrain. Yearly tenant may. Distress by joint tenants tenants in OBSERVATIONS AND CASES. A LESSEE for years who assigns cannot distrain for rent. (d) And where the agreement (intended as stipulations between lessee and undertenant) was held to constitute an absolute assignment of the lessee's interest in the premises, it was considered that he was not entitled to distrain for rent in arrear. (e) And so where a person having a term lets the same verbally for the whole of the term, it was held that he had not right to distrain.(ƒ) But a tenant from year to year, underletting from year has year, a reversion which entitles him to distrain.(g) to A tenant holding under two tenants in common cannot pay the whole to one, after notice from the common,&c. other not to pay it; and if he do, the other tenant in common may distrain for his share. (h) One of several co-heirs in gavelkind may distrain for rent due to himself and his co-heirs, without any express authority from them.(i) One of several joint tenants may sign a warrant of distress, and appoint a bailiff to distrain for rent due to all, if the others do not forbid him; and if, when applied to, they merely decline to act, that will not prevent him from proceeding.(j) Where one of several persons who had together leased premises at one entire rent, to be divided and paid separately in equal portions, and one of them distrained upon the tenant for his own share of the rent, it was held that the distress was regular; for whatever might have been the interests of the landlords among themselves, (whose (d) 2 Wils. 375. (e) Parmenter v. Webb, 2 Moore, 656. (f) Preece v. Corrie, 5 Bing. 24. 2 M. & P. 57. (g) Curtis v. Wheeler, M. & M. 493. (h) Harrison v. Barnby, 5 T. R. 246; and see 1 B. & B. 11. Leigh v. Shepherd, 5 Moore, 297. 2 B. & B. 465. (j) Robinson v. Hoffman, 1 M. & P. 474. 4 Bing. 562. 3 Carr. & P. original interests did not appear upon the face of the demise,) as between them and the terre-tenant they were tenants in common, and entitled each to a separate distress.(k) An receivers. A receiver appointed by the court of chancery Agents and has a right to distrain for rent, without any special authority from the court for that purpose. (7) authority to tenants to pay rent to a person whose receipt shall be their discharge, will not enable such person to distrain, although he receives the rent for his own benefit.(m) and others leases, &c. A mortgagee, after giving notice to the tenant of Mortgagees the mortgage to him, although the lease be made under agreeprior to the mortgage, is entitled to rent in arrear ments for at the time of the notice, as well as to what accrues afterwards, and he may distrain for it after such notice.(n) A landlord who treats the occupier as a trespasser, by serving him with an ejectment, cannot afterwards distrain on him for rent. (o) mise to dis There must be an actual demise (oral or written) The necesat a specific rent to enable the landlord to dis- sity of a detrain. (p) And where a landlord has assigned his train. interest in the premises, he has no power of distress remaining.(7) If, under an agreement for a lease at a certain rent, the tenant is let into possession before the lease is executed, the lessor cannot during the first year distrain for rent, for there is no demise, express or implied. (r) A tenant holding over after notice to quit given Holding (k) Whitley v. Roberts, M'Clel. & Y. 107. (1) Bennet v. Robins, 5 C. & P. 379. S. P. Brandon v. Brandon, 5 Madd. 473; and see Hughes v. Hughes, 3 Bro. C. C., 87. (1) Ward v. Shew, 9 Bing. 638. 2 M. & Scott, 756. (n) Moss v. Gallimore, 1 Doug. 279. (o) Although the ejectment is directed against the claim of a third person, who comes in and defends in lieu of the occupier, and the occupier is aware of that circumstance, and is never turned out of possession. -Bridges v. Smith, 5 Bing. 410. 2 M. & P. 470. (p) Dunk v. Hunter, 5 B. & A. 322. This means before any rent has been paid; for, if rent be paid, it will constitute a yearly tenancy, and the landlord may then distrain. (9) Parmenter v. Webber, 2 Moore, 656 (r) Hegan v. Johnson, 2 Taunt. 148. But as soon as rent is paid under the agreement, then the occupier becomes tenant under an implied demise from year to year.-Hammerton v. Steed, 3 B. & C.478; and see Knight v. Bennett, 3 Bing. 361. 11 Moore, 227. notice. over after by the landlord is not liable to a distress, without some evidence of a renewal of the tenancy.(s) A landlord has no right to distrain for double rent upon a weekly tenant who holds over after a notice to quit.(t) A landlord may distrain for rent for ready furnished lodgings. (u) Where rent was reserved, payable quarterly or half-quarterly, (if required,) the landlord having received the rent quarterly for a twelvemonth, he cannot legally distrain for half a quarter without notice.(v) What goods liable to distress. Growing crops. A threshing machine (not being a fixture) is liable to a distress for rent, unless in actual use at the time, or there being other sufficient distress upon the premises. (w) A threshing machine left on the premises of a tenant till the following Monday, the owner not having taken the same home with him in consequence of the distance, it was held that it might be distrained by the landlord for rent, if there was no other distress sufficient on the premises.(x) A tenant whose standing corn and growing crops have been seized as a distress for rent before they were ripe, cannot maintain an action on the case, under 2 W. and M., sess. 1, c. 5, for sealing the same, before five days had elapsed after the seizure, as such sale was altogether void. (y) A distress on growing crops of corn of a purchaser thereof from the sheriff, for rent accruing due to the landlord subsequently to the entry under the execution and sale, cannot be sustained, unless the vendee allow the crops to remain uncut an unreasonable time after they have become ripe.(z) Trees growing on a nurseryman's ground, who is a yearly tenant, and removable by such tenant from time to time, are not distrainable for rent under the 11 crops. taken a tradesman G. II., c. 19, s. 8. (a) It seems standing crops can- Standing not be distrained upon under a clause in an annuity deed, giving a power to enter and distrain for areas in like manner as for arrears of rent. (b) A te- When crops nant's growing crops taken in execution and sold, execution. and remaining on the premises a reasonable time for the purpose of being reaped, are not distrainable by the landlord for rent becoming due after the taking in execution. (c) All goods sent to a trades- Goods with man for the purpose of being wrought upon in the in the way of way of his trade are, during the time they remain his trade. in his custody, protected from distress. (d) An action is not maintainable for distraining beasts of the plough, when there is no other sufficient subject for distress on the premises but growing crops. (e) Wearing apparel may be distrained for rent. (ƒ) So implements of trade may be distrained for rent, if they be not in actual use at the time, and if there be no other sufficient distress on the premises. (g) A stocking frame in actual use is not distrainable, Machinery unless there is not sufficient distress besides. (h) Materials delivered by a manufacturer to a weaver, Materials to (a) Clarke v. Calvert, 3 Moore, 96. S. P. Clark v. Gaskarth, 2 Moore, 8 Taunt. 431. 491. (b) Miller v. Green, 2 Tyr. 1. 2 C. & I. 143. 8 Bing. 92. 1 M. & Scott, 199. (c) Wright v. Dewes, 3 Nev. & M. 790. 1 Adol. & Ellis, 641. Such crops having been so taken, sold, and left, on the premises, and the arrears of rent paid pursuant to statute 8 Anne, c. 14, s. 1, the landlord cannot distrain them for rent subsequently due, on the ground that the purchaser has not entered into the agreement with the sheriff (to use and expend the produce in a proper manner) directed by statute 56 G. III., c. 50, s. 3. Nor is he entitled to presume, from the absence of such agreement, that the straw of such crops was sold for the purpose of being carried off the land contrary to section 1.-Id. (d) Brown v. Shevil, 4 Nev. and M. 277. 2 Adol. & Ellis, 138. As the carcass of a beast in the custody of a butcher, sent to him for the purpose of being slaughtered for the sender.-Id. So although the sender be also a butcher.-Id. (e) Pigot v. Burtles, 1 Mees. & Wels. 441. And where a landlord distrains beasts of the plough, though there are other goods on the premises, he is not liable to an action for an illegal distress if he use due diligence to ascertain whether such goods are a sufficient distress without them; and he is not to be affected by a subsequent sale at a higher price than was expected.-Jenner v. Yolland, 2 Chitt. 167. 6 Price, 5. (f) Bisset v. Coldwell, Peake 36. 1 Esp. 206, n. S. P. Baines v. Smith, 1 Esp. 206. (g) Gorton v. Falkner, 4 T. R. 565, S. P. Roberts v. Jackson, Peake Add. Cases. (h) Watts v. Davies, 1 Selw. N. P. 676. Gorton v. Falkner, 4 T. R. 568. in use. be manufac. to be by him manufactured at his own home, are tured. privileged from distress for rent.(i) Chattels not. A landlord may distrain horses in a stable let by privileged or his tenant to an innkeeper during races.(j) Goods of a principal in the hand of a factor for sale, are privileged from distress for rent due from such factor to his landlord.(k) Goods deposited on the premises of an auctioneer for the purposes of sale, are privileged from being distrained for the rent of those premises. (7) A landlord distraining is prima facie liable for the act of his bailiff, in taking goods privileged from distress, though they never come to his hands. (m) If goods taken under an execution by the sheriff, and they remain upon the premises under a fictitious bill of sale, the landlord may distrain as before. (n) Where a sheriff's officer took possession of goods of a tenant under an execution, and locked up the warrant in a table drawer there, and took the key away with him without leaving any person in possession, and after the fi. fa. was returnable the landlord distrained the goods for his rent, it was held that the sheriff could not maintain trespass against him.(0) A landlord's right to distrain revives upon an execution being waived. (p) A landlord may distrain upon the goods of his tenant, for a year's rent, notwithstanding an outlawry in a civil suit. (q) When to be made. A landlord who permits his tenant to retain pos (1) Wood v. Clark, 1 C. & I. 494. 1 Tyr. 315. 1 Price P. C. 26. But a frame or machinery delivered by the manufacturer to the weaver, together with the materials, is not privileged unless there be other goods upon the premises sufficient to satisfy the rent due.-Id. (j) Crosier v. Tomkinson, 2 Ld. Ken. 439. (k) Gilman v. Elton, 6 Moore, 243. 3 B. & B. 75. But if, when he knows the circumstance, he disclaims and repudiates the act, he is not bound by it. -Id. (n) Smith v. Russell, 3 Taunt. 400. (0) Blades v. Arundale, 1 M. & S. 711. (p) Seven v. Mihil, 1 Ld. Ken. 370. (7) Saint John's College, Oxford, v. Murcott, 7 T. R. 259. In this case the sheriff's officer being in possession of the tenant's effects under an outlawry, made a distress for rent, sold the goods so distrained, and afterwards the outlawry was reversed;-ruled that the officer was liable to pay the produce of the goods to the landlord, in an action for money had and received.-Id. |