CHAPTER XVI. DISTRESS. I. Of the Nature and Origin of a Distress, II. Of the Causes for which a Distress may be taken, III. Of the Things which may or may not be distrained, .. 676 V. Of the Time at which a Distress may be taken, VIII. Of Pound Breach and Rescue, 678 680 685 .. 687 IX. Of abusing the Distress, and of Irregularity in the 699999 I. Of the Nature and Origin of a Distress. THE power of distraining was given to the lord (in lieu of the forfeiture of the land), for the purpose of forcing the tenant to perform those services which were the consideration of his enjoyment of it. Hence the distress was considered merely as a pledge, and the detention thereof was justifiable only so long as the duties incident to the tenure of the land remained undischarged. If the tenant offered gages and pledges for the performance of the services, and the lord, after such offer, persisted in detaining the distress, the tenant might sue out a writ of replevin, the tenor of which was, that the defendant had taken and unjustly detained the goods, 'against gages and pledges." This form is still preserved in the proceedings in replevin, but the offer of gages and pledges has fallen into disuse. The replevin was considered as so much a matter of right, that if a person by deed granted a rent with a clause of distress, and granted further, that the distresses taken should be irreplevisable, yet they might be replevied, such a restriction being against the nature of a distress (a). Goods distrained are not liable to the distress of another subject, (a) 1 Inst. 145, b. because they are in the custody of the law (b); nor to another subject's execution, for the same reason (c). But an extent against the king's debtor shall prevail before actual sale, notwithstanding the custody of the law, on the ground of the general preference allowed by law to the king's debts (d). The right of distress is not so inseparable an incident to rent service that it cannot be postponed by contract between the parties (e). II. Of the Causes for which a Distress may be taken. 1. At Common Law.-A distress may be taken for the nonperformance of services, either certain or such as may be reduced to certainty-e. g. to shear the sheep of the lessor within the manor (f), to pay so much per yard for all marl got, and so much per thousand for all bricks made (g)—viz. heriot-service (h), rentservice (i), suit-service (k), that is, suit to a hundred court, or courtbaron; for non-payment of a fine imposed on an inhabitant of a manor by the steward of a court leet for refusing to take the customary oath, when elected to the office of a constable (1); for nonpayment of an amerciament in a court leet (m) for a nuisance (n), or for an offence done in court (o); lastly, at common law, goods or cattle damage feasant may be distrained (p). A landlord cannot distrain unless there be an actual demise to the tenant at a fixed rent. Hence, where the tenant holds under an agreement for a future lease, and no lease has been executed, and no rent subsequently paid, the landlord cannot distrain (q). But payment of rent under such an agreement will constitute an acknowledgment of a tenancy from year to year, under which the landlord will be authorized to distrain (r); and so will an admission of a charge of half a year's rent in an account between the parSecus, where the tenant holds over after notice to quit by ties (s). (b) Bro. Distr. 75, cited by Lord C. B. Parker, 2 Ves. sen. 294. (c) Bro. 28; Finch, 11, cited by Lord C. B. Parker, in R. v. Cotton, Parker, 120. (d) R. v. Cotton, Parker, 112, recognized in Giles v. Grover, 9 Bingh. 128, where it was held that the goods of a debtor seized under a fi. fa., but not sold, might be taken under an extent in chief, or in aid. Grove v. Aldridge, 9 Bingh. 428, acc. (k) 1 Roll. Abr. 665, E. pl. 2. (1) 8 Co. 41, a; but see per Gibbs, C. J., Clears v. Stevens, 8 Taunt. 416; Fletcher v. Ingram, 1 Salk. 175. (m) 8 Co. 41, a. (n) Prat v. Stern, Cro. Jac. 382. (p) 1 Inst. 142, a., 161, a. (q) Dunk v. Hunter, 5 B. & Ald. 322; Regnart v. Porter, 7 Bingh. 451; Riseley v. Ryle, 11 M. & W. 16; Mechelin v. Wallace, 7 A. & E. 54. (r) Knight v. Benett, 3 Bingh. 361; Mann v. Lovejoy, Ry. & M. 355. (s) Cox v. Bent, 5 Bingh. 185; Braythwayte v. Hitchcock, 10 M. & W. 494, acc. the landlord, and there is not any evidence of a renewal of the tenancy (t). By 12 & 13 Vict. c. 106, s. 129, no distress for rent levied after an act of bankruptcy, upon the goods of any bankrupt (whether before or after the issuing the fiat, or the filing the petition), shall be available for more than one year's rent, accrued prior to the date of the fiat or the filing of the petition, but the landlord, or person to whom the rent is due, shall be allowed to come in as a creditor for the overplus of the rent due, and for which the distress shall not be available (u). — This section applies only to rent accrued due before the bankruptcy (a), and is intended for the protection of the assignees only, and not for that of mortgagees, although in actual possession of the goods, upon which, therefore, if on the premises, the landlord may distrain (y). The landlord must distrain in order to enforce his claim against the assignees (z); and he retains such right until the removal of the goods (a); although the messenger be in possession (b). If the assignees decline the lease, the property remains in the bankrupt, and the landlord may distrain for the rent (c); but he cannot prove and distrain for the same rent (d). The certificate does not operate as a release of the rent (e). By the Insolvency Act, 7 & 8 Vict. c. 96, s. 18, no distress for rent made and levied, after the filing of any petition for protection, upon the goods of the petitioner shall be available for more than one year's rent due before the filing the petition, but the landlord or party to whom the rent shall be due shall be a creditor for the overplus.-This section does not apply to a distress "made" before the filing of the petition, but not sold till after (f). The discharge of the insolvent does not release the rent, which may still be distrained for (g). 2. By Prescription.-By prescription, a distress may be taken for an amerciament in a court baron (h); for penalty imposed for a breach of a by-law (i); for a toll in a fair (j). A distress may be taken, where the custom warrants it, for an amerciament or fine imposed by the steward of a court baron. Co. Ent. tit. Replevin, pl. 1. 3. By Statute.-It would be an endless task to enumerate all (t) Jenner v. Clegg, 1 M. & Rob. 213; Waring v. King, 8 M. & W. 571, per Lord Abinger, C. B. (u) This provision is similar to the 6 Geo. IV. c. 16, s. 74. (x) Briggs v. Sowry, 8 M. & W. 729. (z) Gethin v. Wilks, 2 Dowl. 189. (c) Brocklehurst v. Lawes, supra. (e) Newton v. Scott, 10 M. & W. 471. (g) Phillips v. Shervill, 6 Q. B. 944. (i) Lord Crumwell's case, Dyer, 322, a. 1 the statutes which give a remedy by distress; the following, however, cannot be omitted: : By 4 Geo. II. c. 28, s. 5-Every person, body politic and corporate may have the like remedy by distress, and by impounding and selling the same, in cases of rent-seck, rents of assize, and chief rents, which have been duly answered or paid, for the space of three years, within the space of twenty years before the 23rd day of January, 1731, or shall be thereafter created, as in case of rent reserved upon lease.-In Bradbury v. Wright, Dong. 624, the court were of opinion that a rent reserved on a grant in fee (k) made after the statute of Quia emptores, and before the 4 Geo. II. c. 28, was in its nature a rent-seck, and that it could not be distrained for except under the preceding statute: in which case the distrainor, in his avowry, ought to have alleged, that the rent had been duly answered or paid for the space of three years (1), within the space of twenty years, before the first day of the session of parliament in which this statute was made. By 11 Geo. II. c. 19, s. 18 (ante, p. 633), landlords may distrain for double rent, upon tenants who do not deliver up possession after having given notice of their intention to quit, during all the time such tenants continue in possession. This statute applies to those cases only, where the tenant has the power of determining his tenancy by a notice; and where he actually gives a valid notice sufficient. to determine it (m). III. Of the Things which may, and the Things which may not be distrained. 1. Of the Things which may be distrained.—It may be laid down as a general proposition, that all moveable chattels of the tenant may be distrained for rent arrear, if they are found upon the land out of which the rent issues, but nowhere else (n). Hence, where the exclusive use of the land of the river Thames, in front of a wharf It is (k) A rent of this kind, prior to the statute of quia emptores, would have been properly denominated a fee-farm rent. The word fee-farm imports every rent or service, whatever the quantum may be, which is reserved on a grant in fee. not properly applicable to any rents, except rent-service. Hence, since the statute of quia emptores, the granting in feefarm, except by the king, is become impracticable; for, by the operation of that statute, the grantor parting with the fee is without any reversion, and without a reversion there cannot be a rent-service. Litt. sect. 216. But a grant in fee, reserving a perpetual rent, with a power of distress, will be good as a rent-charge. Harg. 1 Inst. 143, b, n. 5. And it seems, that if such a rent were created at this day, without a power of distress, as it must be considered as a rent-seck, it would be distrainable for under the above statute. See Vigers v. Dean and Chapter of St. Paul's, 14 Q. B. 909. (1) They need not be consecutive years. Musgrave v. Emmerson, 10 Q. B. 326. (m) Johnstone v. Hudlestone, 4 B. & C. 922. (n) Com. Dig. Distress, B. 1; 4 T. R. 567, Gorton v. Falkner, per Lord Kenyon, C. J. between high and low water-mark, was demised as appurtenant to the wharf, for the accommodation of the tenants thereof, but the land itself between high and low water was not demised, it was held that the lessor could not distrain, for rent arrear, barges, the property of the tenant, lying in the space between high and low water-mark, and attached to the wharf by ropes (o). If the cattle of a stranger are trespassers on the land of the tenant, the lord may distrain them, although the stranger made fresh suit (p), and although the cattle be not levant and couchant (q). But if the cattle of their own accord leave the land, the lord cannot distrain them (r). And if the landlord either expressly or impliedly consent that the stranger's chattels shall be free from distress, he is a trespasser if he distrain them (s). So a lessor cannot distrain cattle which escape from a close belonging to a stranger, into the land whence the rent issues, through defect of the fences, which either the lessor (t) or his tenant (u) was bound to repair. But "there is a difference between a lord distraining within his seignory, and a landlord distraining for rent reserved on his own lease; for the lord has nothing to do with the land or the fences, and so it is not material to him whether the fences are repaired or not: but it is otherwise of a landlord; for he himself ought to repair, or to provide that his tenant repairs them, else he would take advantage of his own wrong. And this diversity seems to be warranted by the books, Dy. 317,318; 22 Edw. IV. 49, b. ; 7 Hen. VII. 1; 10 Hen. VII. 21; 15 Hen. VII. 17. But if the cattle escape into the land without any defect of the fences, or where the tenant of the land in which they are distrained is not bound to repair the fences, through the defect of which the cattle escape and are distrained, it is immaterial to the lord or landlord, whether they are levant and couchant or not." Per Saunders, in Poole v. Longuevill, 2 Wms. Saund. 289. The grantee of a rent-charge may distrain the goods of a stranger who is not shown to hold by a title paramount to the rent-charge (x). Where cattle are distrained damage feasant, and put into a sufficient pound and escape without default or neglect of the distrainor, he may maintain trespass for the damage to his land; for otherwise he would be left without remedy (y). If the estate of a tenant at will be determined either by his own death or by the act of the landlord, he or his executors are entitled to reap the corn sown by him. And, therefore, such corn, though purchased by another person, cannot be distrained (in case of the determination of the tenancy at will) for rent due from a subse (0) Capel v. Buszard, 6 Bingh. 150. (p) 7 Hen. VII. 1, b, 2, a. (q) 15 Hen. VII. 17, b. (r) 11 Hen. VII. 4, a. (s) Horsford v. Webster, 1 C. M. & R. (t) 2 Leon. 7. (u) Dyer, 317, b, 318, a. (x) Saffery v. Elgood, 1 A. & E. 191; Johnson v. Faulkner, 2 Q. B. 925. (y) Williams v. Price, 3 B. & Ad. 695. |