No. 2466. Book 4, tit. 2, chap. 1, sec. 4, § 4. No. 2467. 3. Other things in actual use, as a horse on which a man is riding, an axe in the hands of a person cutting wood, and the like.(a) § 4. Of the time when a distress ought to be made. 2466.-1. At common law, the distress must be made during the continuance of the lease, the relation of lessor and lessee must exist; but it has been decided, contrary to this general rule, that a lessor may seize and distrain the goods of a tenant holding over.(b) The distress cannot be made till the rent is due by the terms of the lease; as rent is not due, for this purpose, until the last minute of the natural day on which it is reserved, it follows that a distress for rent cannot be made on that day.(c) As a general rule, a previous demand is not necessary, although there is a clause in the lease that the lessor may distrain for rent, "being lawfully demanded," (d) the making of the distress, like the commencement of an action, being a demand in such case. It is however advisable to make a demand. But where a lease provides for a special demand, as if the clause were that if the rent should happen to be behind, it should be demanded at a particular place, not on the land, or be demanded of the person of the tenant, then such a special demand is requisite to support the distress.(e) 2467.-2. A distress for rent cannot be made during the night, but must be in day time ;(f) though a distress damage feasant may be made during the night.(g) (a) Coke Litt. 47 a. (b) Keilw. 96. Vide ante, n. 2446. (c) 1 Saund. 287; Co. Litt. 476, n. 6. (e) Bac. Ab. Rent, I; Plowd. 69. (ƒ) Co. Litt. 142 a. (g) Heyden v. Godsale, Palm. 280. No. 2468. Book 4, tit. 2, chap. 1, sec. 4, § 5, art. 1. No. 2469. § 5. Of the place where a distress may be made. 2468. A distress may be taken either on the land or off the land. Art. 1.-On the land. 2469. When a distress is taken for the arrears of a duty arising out of a tenure, or charge upon land, it may be seized upon any part of the land out of which such duty issues, or on which it is chargeable, and the entire rent is chargeable on every part of the land; where, therefore, there is a lease of a tract of land, which is afterward held by several tenants, the lessor or landlord may distrain for the whole rent upon the land of any of them. (a) But the thing seized must be upon the land, and not merely attached to it by a rope; as a barge floating in a river, attached to the leased premises by a rope, is not liable to distress.(b) It follows, from the principle already laid down, that if two separate pieces of land are let by two separate demises, although both are contained in one lease, a joint distress cannot be made for them, for this would be to make the rent of one issue out of the other. (c) But when lands lying in different counties are let together by one demise, at one entire rent, and it does not appear that the lands are not separate from each other, one distress may be made for the whole rent. (d) When there is a house upon the leased premises, the distress may be made in the house; an outer door or other inlet cannot be broken to make a distress, but if either be open, an inner door may be broken for the purpose, taking care, in all cases, first to make a demand, and also not unnecessarily to do more damage than is requisite. (e) No. 2470. Book 4, tit. 2, chap. 1, sec. 4, § 5, art. 2. No. 2470. Art. 2.-Off the land. 2470. At common law, when the duty arises out of a tenure, and the lord, coming to distrain, sees the beasts upon the land, and before he can seize them, the tenant drives them off, the lord may follow the cattle freshly into any place, even a public highway, to which they are driven, and there distrain them. This is on account of the fraud of the tenant, for, if the cattle go away of their own accord, he cannot pursue and take them.(a) The English statutes of Ann and George,(b) the principles of which have been incorporated in the laws of several states, provide that if any lessee shall fraudulently or clandestinely carry off his goods from the premises demised, in order to prevent the landlord's distress, the landlord may, within thirty days afterward, distrain them as if they had continued on the premises, provided they be not sold, within that time, for a valuable consideration and without notice. To bring a case within the act, the removal must take place after the rent becomes due; it must he secret and not made in open day; for a removal made openly cannot be said to be clandestine within the meaning of the act.(c) It has, however, been made a question whether goods are protected that were fraudulently removed the night before the rent became due.(d) Though the landlord may distrain upon the goods of a stranger on the demised premises, unless they are exempted for some of the causes above mentioned; because he is not to make any discrimination between such goods and those of his tenant, when he appears (a) 11 Hen. 7, M. 11, (b) 8 Ann, c. 14, s. 2; 11 Geo. 2, c. 19, s. 1 and 2. (c) Watson v. Maine, 3 Esp. N. P. C. 15; Grace v. Shively, 12 S. & R. 217. (d) Furneaux v. Fotherby, 4 Camp. 135. No. 2471. Book 4, tit 2, chap. 1, sec. 4, § 6, art. 1, 2. No. 2473. to be the owner, (a) yet the goods of a stranger are liable only while they are on the premises. (b) § 6.--Of the manner of making a distress. 2471. Under this head will be considered, 1, by whom the distress is to be made; 2, the form of seizing; 3, of the quantity of goods to be taken; 4, of the proceedings after the seizure. Art. 1.-By whom the distress is to be made. 2472. At common law a distress for rent may be made either by the person to whom it is due, or, which is the preferable mode, by a constable or other officer, properly authorized by him as his bailiff. But in some of the states, the laws require that the distress should be made by a public officer, by virtue of a warrant issued by a magistrate. If the distress be made without any authority from an officer, the lessor should properly authorize the bailiff to make the distress for him; for this purpose he should give him a written authority, or as it is usually called a warrant of distress; but a subsequent authority and recognition, given by the party for whose use the distress is made, is sufficient. (c) Art. 2.--The form of seizing a distress. 2473. When the bailiff is provided with the requisite authority to make a distress, he should take the things subject to the distress, but he need not lay hands upon every individual chattel; upon entering the house, he may take hold of a chair, or any other thing, and declare that he seizes it in the name of all the goods within the dwelling. (d) He should declare (a) Spencer v. McGowen, 13 Wend. 256; Hionely v. Wyatt, 1 Bay, 102; Reeves v. McKenzie, 1 Bailey, 497. (b) Adams v. La Comb, 1 Dall. 440. (c) Ham. N. P. 382. (d) Dod v. Monger, 6 Mod. 215. No. 2474. Book 4, tit. 2, chap. 1, sec. 4, § 6, art. 3, 4. No. 2475. that he takes them as a distress, for the sum expressed in the warrant to be due by the tenant to the landlord, and that he takes them by virtue of such warrant, which warrant, if required, he ought to show; (a) but although he does not declare the cause for which he takes the distress, yet it is not unlawful.(b) Art. 3.--Of the quantity of goods to be taken. 2474. A distress should be made for the whole demand at one time, and the landlord should not harass the debtor with repeated distresses. By the whole demand is meant that which has accrued due at a day of payment, and not the gross amount of several sums, which have each become due at distinct days. For example, if rent is reserved quarterly, and remains unpaid for a whole year, the arrears of each quarter are distinct demands, and separate distresses may be made for each. (c) But the lessor is not bound to make separate distresses, as for rent due on different demises. (d) When he distrains for the whole demand, but mistakes the value of the chattel taken, supposing it to be equal in value to the duty owing, when in fact it is not, he may distrain anew. In like manner he may make a new distress when he could not find a sufficiency of goods at the time of making the first.(e) Art. 4.-Of proceedings after the seizure. 2475. After the goods are seized the distrainor has several duties to perform, among these are: 1. To make an inventory of the goods distrained (a) 1 Leon. 50. (b) 45 Edw. 3, E. 13, p. 19. (c) 2 Edw. 3, M. 10, p. 32; Gilb. on Distr. 65. (d) See Legg v. Strudwick, 2 Salk. 414; Birch v. Wright, 1 T. R. 380. (e) Bradb. on Distr. ; Gilb. on Distr. 64. |