attorned to the latter, he has no right or power to distrain(g). It has been held, that a tenant from year to year underletting from year to year, has a reversion which enables him to distrain for rent reserved upon such under-lease "(h). However, although the distrainor be not entitled to the immediate reversion, the distrainee may be estopped from denying that he is entitled to it(i).

If the lease has been put an end to by a surrender of the term, or by a notice to quit, and the tenant, notwithstanding the termination of the demise, continues to hold, with the permission of the landlord, as tenant-at-will, or adversely and against the will of the lord as a wrong-doer, the lessor has no power at common law to distrain the goods and chattels of the tenant for rent in respect of such occupation(j). Neither can he distrain, except under the statute of Anne (post, p. 640), for rent that accrued due before the determination of the lease. But any slight evidence of a renewal of the tenancy, and of an agreement to hold upon the former terms, would be sufficient to justify the landlord in distraining for the old rent(k).

If the tenant becomes bankrupt or files a petition for liquidation by arrangement, the landlord or other person to whom any rent is due may still distrain, but if the distress be levied after the commencement of the bankruptcy, it is not available for more than one year's rent accrued due prior to the date of the order of adjudication(l). A fortiori therefore if the trustee in bankruptcy declines to take the lease, the lessor is not, in case the bankrupt tenant continues to hold the property, deprived by the bankruptcy of his right to distrain(m). Nor is he so deprived, if the creditors determine to accept a composition under s. 126 and the bankrupt tenant remains in possession(n). If a lessee, having granted an under-lease, becomes bankrupt, such

໑.

(g) Burne v. Richardson, 4 Taunt. 720. Hopcroft v. Keys, 2 M. & Sc. 760; 9 Bing. 613. Langford v. Selmes, 3 K. & J. 229.

(h) Curtis v. Wheeler, M. & M. 493. A lessee who has assigned his term for years entire, cannot distrain without a reservation to that effect. But the rule is otherwise where his lease is from year to year, and he assigns a part. Ege v. Ege, 5 Watts, 134. See Harrison v. Guill,

46 Ga. 427.

(i) Morton v. Woods, L. R., 3 Q. B. 658; 4 ib. 293; 28 Law J., Q. B. 81.

Phené v.

(j) Jenner v. Clegg, 1 M. & Rob. 213. Alford v. Vickory, 1 Car. & Marsh. 283. Popplewell, 12 C. B., N. S. 334; 31 Law J., C. P. 235. Dailey v. Grimes, 27 Md. 440. (k) Zouch v. Willingale, 1 H. Bl. 311. Beavan v. Delahay, 1 H. Bl. 8. See Webber v. Shearman, 3 Hill, 547; 6 Hill, 20; 2 Denio, 362; Bell v. Potter, 6 Hill, 497; Sherwood v. Phillips, 13 Wend. 479.

(7) 32 & 33 Vict. c. 71, s. 84. Ex parte Birm. & Staff. Gas Light Co., L. R., 11 Eq. Ca. 615. See Re Lundy Granite Co., post, p. 650.

(m) Briggs v. Sowry, 8 M. & W. 729. Newton v. Scott, 10 M. & W. 471. Phillips v. Shervill, 6 Q. B. 944; 14 Law J., Q. B. 144. See 32 & 33 Vict. c. 71, s. 23.

(n) Ex parte Birm. Gas Light Co., L. R., 11 Eq. Ca. 204.

bankrupt lessee is not deprived by the bankruptcy of his right to distrain, unless the assignees have taken to the lease and discharged the bankrupt from the rent payable to the superior landlord (o). The power of distress is always subservient to prerogative process issued by the crown, such as an extent; and the sheriff may consequently take goods that have been distrained out of the hands of the landlord or his bailiff, and sell them for the benefit of the crown(p). A landlord, moreover, cannot distrain twice for the same rent, unless the distress has been withdrawn at the instance or request of the tenant, or unless there has been some mistake as to the value of the things taken. It is vexatious and actionable in a landlord to make repeated distresses unnecessarily (g).

707 When there is no certain ascertained rent there is no right to distrain(qq). -If lands and houses have been demised together at one entire rent, and the lease is void as to part of the subject-matter of the demise and good for the residue, the lessor cannot distrain for the rent, as there is no distinct and ascertained rent fixed in respect of the part for which the lease is good("). Where there was a lease of one hundred acres of land at an annual rent of 791., and eight of these acres were in the possession of another tenant under a prior demise, it was held that the lessor could not distrain for any part of the rent, as it was reserved in respect of the whole one hundred acres, and the rent was entire and unapportionable(s). But where a new agreement is come to providing for a specified reduction of rent, or for an ascertained and settled compensation in respect of the part held under the prior demise, such agreement may operate as a re-demise at an ascertained rent, recoverable by distress(t).

Where an oral agreement was entered into between the proprietor of a marl-pit and brick-mine, and a potter and brickmaker, upon the terms that the latter should pay 8d. per solid yard for all the marl that he got out of the marl-pit, and 1s. 8d. per thousand for all the bricks

(0) Peskett v. Somers, coram Wilde, C.J., Sittings after Hil. Term, 1850. But see 32 & 33 Vict. c. 71, s. 23.

(p) Rex v. Cotton, Parker, 112. And see 32 & 33 Vict. c. 14, s. 31, as to a distress at suit of the crown on property of bankrupt for duties, etc., under that Act.

(q) Bagge v. Mawby, 8 Exch. 649.

(99) Wells v. Hornish, 3 Penn. 30.

Scott v. Fuller, id. 55.

Dawson v. Cropp, 1 C. B. 961.
Steel v. Thompson, 3 Penn. 34.

Valentine v. Jackson, 9 Wend. 302.

Grier v. Cowan, Addis. 347. Marshall v. Giles, Const. Rep. 637. Jacks v. Smith, 1 Bay, 315.

Roberts v. Tennell, 4 J. J. Marsh. 160.
Fyler, 2 Hill, 648.

(r) Gardiner v. Williamson, 2 B. & Ad. 339.
(8) Neale v. Mackenzie, 1 M. & W. 763.

rence, 7 Hill, 519.

(t) Watson v. Waud, 8 Exch. 335.

See Smith v.

Hatfield v. Fullerton, 24 Ill. 278.

French v. Law

that he made from the brick-mine, by quarterly payments at the usual quarter-days, and the brickmaker took possession of the pit and mine, and dug marl and burnt bricks, and made several quarterly payments, it was held that this was a demise from year to year at a rent capable of being ascertained with certainty, and that the lessor, therefore, was entitled to distrain(u). And where land was held upon the terms that the plaintiff should not sell hay off the demised premises under a penalty of 2s. 6d. a yard, to be recovered by distress as for rent in arrear, it was held that the penalty might be treated as a rent payable in respect of every sale made in breach of the agreement, that the amount due was capable of being ascertained with certainty, and might be recovered by distress(v).

If a tenant has entered into possession under an agreement which does not operate as a present demise at a fixed rent, but merely as an executory contract for a future lease afterwards to be granted, and the landlord neglects to grant the lease, and the tenant continues to occupy without paying any rent or making any absolute and unconditional admission of any specific sum being due as rent in respect of such occupation, the landlord has no right to distrain(w). But whenever there is an agreement for a tenancy at a fixed rent, though it be a tenancy-at-will only(x), or whenever by payment of rent, or otherwise, any tenancy at a fixed rent can be implied, the landlord may distrain for all rent subsequently accruing due(y). And if the tenant, after he has taken possession, "promises to pay a rent certain, or settles it in account, the landlord will then have a right to distrain "(z). So, if a man, on being let into possession under an agreement for purchase, signs an agreement admitting that he is tenant at a certain rent, he may be distrained upon(a).

By the 14 & 15 Vict. c. 25, s. 1, it is provided, that where the lease of any farm or lands shall determine by the death or cesser of the estate of a landlord entitled for life or for some uncertain interest, instead of a claim to emblements, the tenant shall continue to hold till the expiration of the then current year, and shall then quit as if his lease had expired by effluxion of time, and the succeeding landlord shall be entitled "to recover and receive of the tenant" a fair proportion of the

(2) Daniel v. Gracie, 6 Q. B. 145.

(v) Pollitt v. Forest, 11 Q. B. 949; 16 Law J., Q. B. 424.

(w) Hegan v. Johnson, 2 Taunt. 148.

(x) Anderson v. Mid. Rail. Co., 30 Law J., Q. B. 96.

(y) M'Leish v. Tate, Cowp. 783.

(z) Knight v. Bennett, 11 Moore, 222; 3 Bing. 361. Cox v. Bent, 2 M. & P. 281; 5 Bing. 185. (a) Yeoman v. Ellison, L. R., 2 C. P. 681. See Morton v. Woods, ante, p. 635.

rent for the period since the lessor's death. The above act applies to all tenancies in respect of which there exists a valid claim to emblements, and confers a right to distrain for the rent, as well as to recover it by action(b).

708 Of conditions precedent to the right to distrain.-The right to distrain may be made conditional, or may be postponed by the contract of the parties(c). Where a lessee agreed to take, and the lessor to let, a house and premises at a yearly rent, payable quarterly, and the lessor agreed to complete the house, and fix a bresummer in the window, and allow the lessee 157. towards erecting an oven, and the lessee took possession and built the oven, but the lessor never completed the house nor fixed the bresummer, and the lessee refused payment of the rent, whereupon the lessor distrained, it was held that the distress was illegal, as the condition upon which the rent was to become due remained unaccomplished(d). And where an oral agreement was entered into for the letting and hiring of a house and furniture at an annual rent, payable quarterly, the house to be furnished completely, in a manner suitable to a ladies' school, and the lessee took possession, it was held that the furnishing of the house by the lessor in the manner agreed upon was a condition precedent to his right to distrain for the rent(e). Whenever a covenant or promise to pay rent is conditional and dependent, and the lessor is ready and willing to fulfil the condition on his part, but the lessee prevents him, the lessor will have his power of distress. .

709 Distress for rent payable in advance(f)-Rent when due-Several demises. Rent may be made payable in advance, so as to entitle the landlord to distrain for it at the commencement instead of at the end

of each quarter(g). When there is a reservation of an annual rent, or a covenant, or agreement by a tenant to pay so much a year, a stipulation for the determination of the tenancy at the expiration of any one quarter of a year, by a six or three months' notice, will not raise a presumption that the rent was to be paid quarterly(h). Where a landlord agreed to let a house at a yearly rent of 50%., and likewise a stable and loft at a further rental of 25l. per annum, to be paid on the

(b) Haines v. Welch, L. R.. 4 C. P. 91. See 33 & 34 Vict. c. 35, "The Apportionment Act, 1870."

(c) Giles v. Spencer, 3 C. B., N. S. 253; 26 Law J., C. P. 237.

(d) Regnert v. Porter, 5 M. & P. 370.

(e) Mechelen v. Wallace, 7 Ad. & E. 54, n.

(f) See De Nichols v. Saunders, post, p. 641.

(g) Lee v. Smith, 9 Exch. 665. Conway v. Starkweather, 1 Denio, 113.

(h) Collett v. Curling, 10 Q. B. 785; 16 Law J., Q. B. 390.

usual quarter-days, it was held that this was a demise of two different sets of premises at separate rents, payable at different periods; that the 50%. rent was payable yearly, and the 251. rent payable quarterly (i). Where a contract was entered into for the letting and hiring of a house for a year certain, at a rent payable quarterly, "or halfquarterly if required," and the tenant entered into possession, and paid his rent quarterly for the first year of the tenancy, at the expiration of which period the lessor, without any previous demand or notice to the tenant, distrained for half a quarter's rent then alleged to be due, it was held that the lessor had no right so to do without giving a previous intimation and notice to the tenant of his election to take the rent half-quarterly().

If the lessor distrains before the rent has become due, the tenant may resist the entry and seizure by force, and after a seizure has been made, he may rescue his goods at any time before they have been impounded; but when once the goods have been impounded, they are in the custody of the law, and the tenant cannot then break the pound and retake them(k).

710 Distress after the termination of the term of hiring.—At common law the landlord could not, it seems, have distrained after the expiration of the term for rent that accrued due before the termination thereof, as his reversion was then gone, the entire estate being revested in him in possession(/), but now, by 8 Anne, ch. 14, ss. 6, 7, it is enacted, that it shall be lawful for him to distrain for arrears of rent due upon any lease ended or determined after the determination of the lease, in the same manner as he might have done if such lease had not been ended or determined; provided such distress be made within six calendar months after the determination of the lease, and during the continuance of the landlord's title or interest, and during the possession of the tenant from whom such arrears became due(). Primâ facie, therefore, the executors or other personal representatives of a tenant could not be distrained upon. But the Court of Queen's

(i) Coomber v. Howard, 1 C. B. 440.

(j) Mallam v, Arden, 3 M. & Sc. 795; 10 Bing. 299.

(k) 1 Inst. 47b, 161a; Gilbert on Distress, 61. See Bailey v. Wright, 3 McCord, 484; Myers

. Mayfield, 7 Bush (Ky.), 212; Evans v. Herring, 3 Dutch. (N. J.) 243; Fry v. Breckenridge, 7 B. Mon. 31; O'Farrill v. Nance, 2 Hill (S. C.), 484.

(7) Williams v. Stiven, 9 Q. B. 14; 15 Law J., Q. B. 321.

(1) See Burr v. Van Buskirk, 3 Cow. 263; Pemberton v. Van Rensselaer, 1 Wend. 307; Williams v. Terboss, 2 ib. 148.

In Pennsylvania, the landlord's right to distrain after the termination of the term is not limited as to time; the statute giving him this right whenever the rent is in the arrear, if the title remains in him. Moss' Appeal, 35 Penn. St. 162.