c. 19, have no application to distress damage feasant. In this kind of distress, therefore, there is no power of sale, and the doctrine of trespass ab initio fully applies. distrained. Distress damage feasant is usually taken of straying cattle, but What may be it may be equally well taken of any other chattel which unlawfully encumbers and damages a man's land (a). There is no privilege from distress damage feasant, "it being but natural justice that whatever doth the injury should be a pledge to make compensation for it" (b). A single exception exists in the case of things in actual use. This is for the sake of avoiding breaches of the peace (c), although it has been said, but apparently without sufficient authority, that a horse may be led to the pound with the rider on him (d). The well-known case of Mr. Pickwick in the wheelbarrow may perhaps be cited in support of the same doctrine. The distress being a remedy for trespass, the right can, as a Who may rule, be exercised only by a person who has a sufficient possession distrain. of land to entitle him to maintain an action of trespass (e). A commoner, however, may distrain beasts which are grazing on his common without any colour of right, but not where there is merely a case of surcharging (f). But a power of distraint accrues, to the person in possession, when tenants in common by mutual agreement severally exercise, during a specific period, complete dominion over the whole of the land (g). no distress. Where there is no trespass there is no right of distress. Thus, No trespass, if cattle on being driven along a road stray on to the unfenced land adjoining, without default on the part of their drivers, they cannot be distrained until there has been a reasonable opportunity of driving them back again (h): and on the other hand, if cattle (a) Ambergate, &c., R. Co. v. Midland R. Co., (1853) 2 E. & B. 793. (b) Gilbert on Distress, 4th ed., p. 49. (c) Storey v. Robinson, (1795) 6 T. R. 138; Field v. Adames, (1840) 12 A. & E. 649. (d) Gilbert on Distress, 4th ed., p. 49. (e) Burt v. Moore, (1793) 5 T. R. 329; Churchill v. Evans, (1809) 1 Taunt. 529 (f) Anon., (1770) 3 Wils. 126; Hall v. Harding, (1768) 4 Burr. 2426; Cape v. Scott, (1874) L. R. 9 Q. B. 266. See Kentick v. Pargiter, (1608) Cro. Jac. 208. (h) Goodwyn v. Cheveley, (1859) 4 H. Actual damage. be at time of trespass. are not lawfully on the road they may be distrained directly they stray from it to the adjoining land (a). In Singleton v. Williamson (b), the defendant owned a close adjoining a close of the plaintiff's, and was under a liability to repair the fence between the two closes. The fence being insufficient, the plaintiff's cattle strayed through it, and ultimately broke through another fence into a third field also belonging to the defendant. He there distrained them, and it was held that the distress was unlawful, inasmuch as the damage of which he complained was the natural consequence of his own breach of duty. To justify the distress there must not only be a trespass but also actual damage, as where cattle tread down and devour grass or corn (c). If an animal strays into a paved yard the mere fact Distress must of its presence does not make it distrainable (d). The distress can only be made during the continuance of the trespass. And the distrainor must be actually in the locus in quo (e) as the animal cannot be followed off the land; it must be seized then and there (f), and it would seem that even if it is still on the land. it is not distrainable unless actually doing damage or likely to do damage (g). Accordingly if an animal trespasses on two occasions and on the second is taken for a trespass, the impounding can only be to answer for the damage done at the time, and not for that done previously (h). Chattel only distrainable for its own damage. For what damage animals are distrainable. If a herd of cattle trespass, each is only distrainable for its own damage; the injured party cannot detain one in respect of the mischief which the whole herd have done (i). It follows that there can be no such thing as an excessive distress damage feasant, inasmuch as there is no choice as to what shall be distrained. In a modern case (k) it was held that the damage for which that if a man came into a field before the trespassing cattle got out of it he might follow them; but according to all the other authorities there is in this kind of distress no such right of taking on a fresh pursuit. (g) Wormer v. Biggs, supra. (h) Per Holt, C.J., Vaspor v. Elwards, (1701) 12 Mod. 658, supra. Gilbert on Distress, 4th ed., p. 22. (i) Ibid. (k) Boden v. Roscoe, (1894) 1 Q. B. 608, trespassing animals may be distrained is not confined to damage to the freehold, but includes damage of all kinds. There a pony of the defendant escaped into the plaintiff's field and kicked a filly of the plaintiff. It was held that the pony might be detained until tender of amends for the injury to the filly. This decision seems to be unsupported by earlier authority, and to be opposed to the received opinion in the text-books on distress (a), which is to the effect that the damage must be to the land or its produce, under which latter term would of course be included wild rabbits in a warren (b). The remedy is one given only to landowners, and presumably must be for a damage which they suffer in that character. But an injury to a chattel, even if done on the plaintiff's land, is not done to him as a landowner. A distress damage feasant may be taken in the night-time, for May be taken in the night. otherwise the remedy might be lost altogether (c). market dues. If goods are exposed for sale in any public fair or market the Distress for lord of the franchise may distrain upon them for the amount of toll lawfully payable (d). He cannot seize goods sold in fraud of the market outside of its limits, but is left to his remedy by action (e). The term distress is applied to the process by which a court of Distress by court of summary jurisdiction enforces satisfaction of costs and penalties summary imposed by its authority. It is rather a special kind of jurisdiction. execution than a distress properly so called. The procedure is regulated by 42 & 43 Vict. c. 49, ss. 21 & 43. The procedure for enforcement of payment of taxes is also, For taxes. though called a distress, an execution. It is regulated by 43 & 44 Vict. c. 19, s. 86. Rates of various kinds (ƒ) are levied by distress under warrant For rates. of justices (g), the process being virtually an execution (h). (a) Bullen on Distress, 2nd ed., p. 257; Gilbert on Distress, 4th ed., p. 21. (b) Rolle, Abr. tit. Distress, p. 664. (c) Co. Litt. p. 142a. (d) Gilbert on Distress, 4th ed., p. 18. (e) Blakey v. Dinsdale, (1777) 2 Cowp. 661; Bridgland v. Shapter, (1839) 5 M. & W. 375. (f) For poor rate, see 43 Eliz. c. 2, s. 2; 17 Geo. II. c. 38, ss. 7, 8; for highway rates, 5 & 6 Will. IV. c. 50, ss. 34, 104; for rates under the Public Health Act. 38 & 39 Vict. c. 55, s. 256. It is to be observed that in respect to poor and (g) 12 & 13 Vict. c. 14. See Ch. (h) Hutchins v. Chambers, (1758) 1 Burr. 579. In distress for rates it is within the jurisdiction of justices; when a ratepayer, though refusing to pay the whole of a legally made rate, tenders a portion thereof to order the distress to issue only for that portion of the rate which was not actually tendered by him (a). The exercise of this power is, however, purely discretionary (b). In cases where a bailiff distraining for rates illegally retains, from the results of the sale, an unreasonable charge. for taking, keeping, and selling the distress, the remedies of the distrainee are twofold. (1.) The statutory remédy prescribed by s. 2 of the Distress (Costs) Act, 1817; or (2.) By action against the bailiff in the County Court for the return of so much of the charge as is unreasonable (c). (a) Rex v. Gillespie, (1904) 1 K. B. 174 68 J. P. 11; 20 T. L. R. 113. (b) Wiles, Ex parte, (1904) 90 L. T. 225. (c) Rex v. Philbrick & Morey: Edwards, Ex parte, (1905) 2 K. B. 108. Canada. Ontario. Canadian Notes to Chapter XII. DISTRESS. SOME STATUTORY PROVISIONS RELATING TO The following do not include the statutes as to limitation of actions in respect to Real Property which are collected in the notes to the next chapter, nor the provisions relating to distress for taxes and to judicial executions designated as warrants of distress which are mentioned below in the notes (a) to this chapter. Criminal Code, R. S. C. 1906, c. 146, s. 296, includes, under the head of "aggravated assault," an assault on any person in making any lawful distress or seizure or with intent to rescue any goods so taken; s. 1045, costs in case of libel leviable by distress; s. 1046, costs on conviction for assault leviable by distress. R. S. O. 1897, c. 60 (Division Courts); ss. 276-282, claims of landlords in respect to goods seized. (a) Canadian notes to p. 321. R. S. O. 1897, c. 66 (Replevin), s. 2, replevin of goods Ontario. wrongfully distrained. R. S. O. 1897, c. 75 (Costs of Distress or Seizure of Chattels). R. S. O. 1897, c. 77 (Execution), s. 2, exemptions; sub-s. 1, bedding (ordinary); sub-s. 2, apparel (ordinary); sub-s. 3, furniture (as enumerated); sub-s. 4, fuel and provisions (for thirty days); sub-s. 5, domestic animals (as enumerated); sub-s. 6, tools (up to $100; see amendment, 62 Vict. c. 7, s. 1); sub-s. 7, bees (fifteen hives). The above section is made applicable to cases of landlord and tenant by s. 30 of the Landlord and Tenant's Act (c. 170), infra. R. S. O. 1897, c. 121 (Mortgages of Real Estate), s. 15, right of mortgagee to distrain limited to goods of mortgagor not exempt from seizure under execution; s. 16, right of mortgagee to distrain limited to one year's interest or rent. R. S. O. 1897, c. 126 (Short Forms of Mortgages), 2nd Schedule, clause 15 (distress clause) (a). R. S. O. 1897, c. 129 (Trustees and Executors), ss. 13, 14, distress by executors of lessor. R. S. O. 1897, c. 170 (Landlord and Tenant's Act), s. 30, exemptions under execution made applicable in certain cases; s. 31, goods on premises not property of tenant exempt with certain exceptions; s. 32, tenant claiming exemption must vacate; form of notice to tenant; s. 33, right of set-off against rent; s. 34, lien of landlord for one year's arrears as against assignee for benefit of creditors; ss. 36, 37, sale of growing crops: ss. 39-42, protection of goods of boarders and lodgers. R. S. O. 1897 (Vol. III.), c. 322 (Rights and Liberties of the People), s. 3, illegal distresses (52 Hen. III. c. 1, Statute of Marlbridge). ing and Investment Society, 36 U. C. R. R. S. O. 1897 (Vol. III.), c. 342 (Landlord and Tenant No. 2) (b), s. 1, distress for rent seck (4 Geo. II. c. 28, s. 5); s. 2, distress for arrears on lease determined (8 Anne, c. 18, ss. 6, 7) (b); s. 3, (a) For the decisions on distress clauses, see La Vassaire v. Heron, 45 I. C. R. 7, abandonment of first seizure; Laing v. Ontario Loan and Savings Co., 46 U. C. R. 114, effect of clause without attornment; McBride v. Hamilton Prorident and Loan Society, 29 O. R. 161, goods of stranger; Royal Canadian Bank v. Kelly, 19 U. C. C. P. 196, 430 ; 20 U. C. C. P. 519; 22 U. C. C. P. 279; Harron v. Yeman, 3 O. R. 126, distress by purchaser under power; Trust and Loan Co. v. Lawrason, 6 A. R. 286; 10 S. C. R. 679, distinguished in Pegg v. Independent Order of Foresters, 1 O. L. R. 97; Edwards v. Hamilton Provident and Loan Society, 19 O. R. 677; 18 A. R. 347, damages; Munro v. Commercial Build C.T. (b) Distress more than six months after expiration of tenancy is illegal: Soper v. Brown, 4 0. S. 103. Cf. Strathey v. Crooks, 6 O. S. 587; McClenaghan v. Barker, 1 U. C. R. 26; Hartley v. Jarris, 7 U. C. R. 545, landlord cannot distrain after his interest in 26 |