Distress, what it is. Distress for rent. DISTRESS is a remedy given by the common law, whereby a party in certain cases is entitled to enforce a right or obtain redress for a wrong in a summary manner, by seizing chattels and retaining them as a pledge until satisfaction is obtained. The most important head of distress is for rent, whether it be the return due from the tenant holding the land to the lord of whom it is held, or an annual sum charged on the land in favour of a person who, apart from such rent, has nothing further in the Rent-charges. land. Rents of the latter kind were known as rent-charges or rents-seck, according as the power of distress was incident to them or not, but now by statute the distinction is abolished, and all such rents may be distrained for as rents reserved on lease (a). It has been said that neither a rent-charge nor a rent-seck can be created by a person having an interest less than freehold (b). Rent service. The former kind is known as rent-service. It includes ancient quit rents created before the statute of Quia Emptores, copyhold rents, rents payable in respect of enfranchised copyholds (c), and rents incident to a reversion, or, which is practically the same thing, rents reserved by lease. With regard to this kind of rent, it is impossible here to deal at large with the law of landlord and (a) 4 Geo. II. c. 28, s. 5. See too 44 & 45 Vict. c. 41, s. 44. (b) v. Cooper, (1768) 2 Wils. 375; followed Langford v. Selmes, (1857) 3 K. & J. 220. See, however, Butt's case, (1600) 7 Rep. 23a. (c) 6 & 7 Vict. c. 23, s. 2. That rent, however, is spoken of throughout the Copyhold Acts as a rent-charge. As to tithe rent-charge, see 6 & 7 Will. IV. c. 71, s. 81, and 54 Vict. c. 8, ss. 1 and 2. tenant; it is enough to say for the right of distress to exist there must in the first place be an actual occupation of land by the tenant, not a mere incorporeal right in the land (a); there must be a certain rent-the consideration for the use of the land in money, kind or actual service (b) must be ascertained by the terms of the demise itself, or ascertainable on some definite principle, as in the case of royalties (c); and finally the relation of landlord and tenant must exist in the full sense of the term at the time of the distress. Mere use and occupation, or a tenancy on sufferance, can give no right to distrain; there must be at the very least a tenancy at will (d). But an express power in a mining lease for a landlord to distrain for rent in arrear on chattels belonging to his tenant situated in mines adjacent to that actually demised has been decided by the Court of Appeal to confer a right of distress on the chattels in such neighbouring mines, provided the workings in the adjacent properties are on the same seam of coal as that in the mine demised, with which therefore they might be connected underground (e). A receiver appointed by the Court may distrain, but if the tenant has not attorned to him it must be in the name of the person who has the legal estate (ƒ). But if a lessee with an original lease and a reversionary lease, or an agreement therefor, sub-lets the premises for a term exceeding the original demise, he cannot distrain for rent during the currency of the original lease either at common law or by statute (g). In the case where a man entered under an instrument void as a lease, because not in accordance with statutory requirements, it was formerly clear that until he paid rent no tenancy existed, and therefore no right of distress (h). It is said now, however, that mere entry under an agreement for a lease of which specific (a) Hancock v. Austin, (1863) 14 C. B. N. S. 634; and cp. Selby v. Greaves, (1868) L. R. 3 C. P. 594. (b) For a modern case of a tenancy by actual service, see Doe v. Benham, (1845) 7 Q. B. 976. (c) Daniel v. Gracie, (1844) 6 Q. B. 145; Selby v. Greaves, supra. (d) Williams v. Stiren, (1846) 9 Q. B. 14; Anderson v. Midland R. Co., (1861), 3 E. & E. 614; Scobie v. Collins, (1895) 1 Q. B. 375. (e) Roundwood Colliery Co., In re, Lee v. Roundwood Colliery Co., (1897) 1 Ch. 373, C. A. (f) Hughes v. Hughes, (1790) 3 Bro. C. C. 87; 1 Ves. jun. 161; Bennett v. Robins, (1832) 5 C. & P. 379. (g) Lewis v. Baker, (1905) 1 Ch. 46. (h) Hegan v. Johnson, (1809) 2 Taunt. 148; Dunk v. Hunter, (1822) 5 B. & Ald. 322. Distress by agreement. performance may be claimed creates of itself a legal tenancy (a). If a tenant holds over after the termination of his lease, with no recognition on the part of his landlord beyond bare sufferance, rent due under the lease at common law cannot be distrained for, because there is no longer a real tenancy (b). But by statute (c) the landlord may distrain during a period of six months subsequent to the lease, provided his title and the possession of the tenant both continue (d). If an agricultural tenant has a right under his lease to occupy part of the premises for harvesting purposes after the date of quitting, this is a continuation of the term, and not a tenancy on sufferance (e). It would seem that the statute does not apply where the landlord on a forfeiture has made a formal entry or brought ejectment (f). Although only rent, strictly speaking, can be distrained for, yet by the agreement of the parties there may be a right of distress as for rent in respect of any due. For example, a mortgagor in possession, without attorning to the mortgagee, can covenant with him that he may distrain for interest (g). But of course such a contract cannot affect the rights of those who are strangers to it (h). It was held, however, in Daniel v. Stepney (i), that where a lessee had granted a right of distress over land not included in the demise, the right held good against the assignees of such land who took it with notice. Whether such a right of distress, though valid against a subsequently appointed receiver on behalf of mortgagees (k), would be so as against strangers is not actually decided in terms, although it probably would be so. In Tadman v. Henman (1), it was held that a person who lets premises to which he has no (a) Walsh v. Lonsdale, (1822) 21 (b) Williams v. Stiren, supra. (d) As to what is occupation to satisfy (e) Bearan v. Delahay, (1788) 1 H. Bl. 5; Knight v. Bennett, (1826) 11 (f) Per Willes, J., Grimwood v. Moss, (1872) L. R. 7 C. P. p. 365. (g) Chapman v. Beecham, (1842) 3 Q. B. 723. (h) Freeman v. Edwards, (1848) 2 Ex. 732. (i) (1874) L. R. 9 Ex. 185. (k) And see supra, Roundwood Colliery Co., In re. (1) (1893) 2 Q. B. 168. title cannot distrain upon goods which are the property of third persons who do not claim any possession of or interest in the premises under the tenant, and which are upon the premises by the tenant's licence. The estoppel which prevents the tenant from disputing the title of the landlord does not extend to strangers in such a case. A right of distress is barred altogether if not exercised within twelve years of the time when it first accrued, and the right of distraining for any particular sum is barred within six years of the time when it first accrued or was acknowledged in writing (a). In the case of tenancies under the Agricultural Holdings Act no rent can be distrained for which has been due more than a year, unless where it has been customary for the landlord to allow a postponement for a half-year or a quarter, and then the period of limitation is to run from the postponed date (b). Illegal, excessive irregular and Various kinds of illegal dis tress. Assuming a party to show a primâ facie title to distrain, which is a question of the law of property, he will nevertheless be liable in an action when the distress is illegal, irregular or excessive. distress. A distress may be absolutely illegal in a variety of ways: if made after tender, if after a previous distress (c), if it be made at the wrong place or time, if the manner of entry be wrongful, if goods are taken which the law protects from distress (d), if the distress is made contrary to agreement or by taking advantage of the distrainor's own wrong, and if made by unqualified persons (e). There are, moreover, certain special cases in which distress is not allowed. 1. It is, of course, obvious that no one can be justified in After tender. distraining when without distraining he is able to obtain everything to which he is entitled. To complete a distress there must be a taking and an impounding (f). Before the taking the party liable may tender the amount for which there is a right to distrain, and after such tender the taking is a trespass. If between the taking and the impounding he make a sufficient (a) 3 & 4 Will. IV. c. 27, s. 42; 37 & 38 Vict. c. 57, s. 1. (b) 46 & 47 Vict. c. 61, s. 44. (c) Though in this case if the first distress amount to a trespass ab initio, a second and valid distress is justifiable, Grunnell v. Welch, (1905) 2 K. B. 650. (d) See Secretary of State for War v. (e) Perring & Co. v. Emerson's Law Tender of expenses. Remedy for rent not suspended by giving negotiable security. No set-off against rent. Certain deductions allowed. tender he has a right to obtain his goods back again; after the impounding the tender is too late (a). Nevertheless, if it be in fact accepted the goods ought to be restored, and although the mere keeping them may not be actionable a refusal to deliver them or a dealing with them inconsistent with the right of the distrainee may afford a cause of action (b). A landlord may charge the reasonable expenses of his distress, and therefore after seizure such expenses must be included in the tender, but before seizure it is sufficient if the rent actually in arrear be tendered (c). The mere fact that a note or bill has been given in respect of rent in arrear does not ipso facto operate as a suspension of the right of distress (d), but it is evidence of an agreement to suspend such right during the currency of the note or bill (e). On the same principle there is no general right of set-off against rent (ƒ). If, however, an under-tenant, on compulsion pay rent to the superior landlord, this is considered a payment on account which he is entitled to deduct from the next rent which becomes due to his immediate landlord (g). So, too, a tenant may deduct payments which he has been compelled to make on account of rates and taxes, chargeable on the landlord by the terms of the demise (h). In the case of payments made by the tenant on account of the landlord's property tax he may make the deduction from the next instalment of rent, any agreement to the contrary notwithstanding (i). And tenants who are called upon to pay arrears due from former occupiers are entitled (a) Six Carpenters' case, (1610) 8 Rep. p. 147a; Gulliver v. Cosens, (1845) 1 C. B. 788. It is said in Erans v. Elliott, (1836) 5 A. & E. 142, that the wrongful detaining of goods after a tender is of itself a trespass, but this does not seem in accordance with the views expressed in Gulliver v. Cosens, supra, and West v. Nibbs, (1847) 4 C. B. 172. If the mere detention is not actionable, the distrainee ought, it would seem, at the time of tender to make a demand, the refusal of which would give good evidence of a conversion. It is only where the original taking is unlawful that the distress is illegal. Anything afterwards is an irregularity. See below, pp. 305 (b) West v. Nibbs, supra. (c) Bennett v. Bayes, (1860) 5 H. & N. 391. (d) Davis v. Gyde, (1833) 2 A. & E. 623. (e) Baker v. Walker, (1845) 14 M. & W. 465; Palmer v. Bramley, (1895) 2 Q. B. 405. (f) Andrew v. Hancock, (1819) 1 B. & B. 37. (g) Carter v. Carter, (1829) 5 Bing. 406. (h) Palmer v. Earith, (1845) 14 M. & W. 428. (i) 5 & 6 Vict. c. 35, ss. 60, 103. See Denby v. Moore, (1817) 1 B. & Ald. 123; and see 16 & 17 Vict. c. 34, s. 40. |