Bench has held a distress to be good during the possession of the executors, when the tenancy was not determined by the death of the tenant(m). Where, however, there is no possession by any one who can be said to be the representative of the tenant, and the tenancy is determined by the death of the tenant, the statute of Anne does not apply, and there is no power to distrain(n). Where a tenant went away, leaving behind him a cow and a few pigs, without asking per mission to leave them, or saying when he was going to take them away, and the succeeding tenant entered and took possession, it was held that the lessor had no right to distrain the things so left, as the tenant was not then in the possession and occupation of the premises(o). The customary right of the tenant to an away-going crop always operates as a prolongation of the term as to the land on which the crop grows for the period allowed by the custom for getting in and gathering the crop. All the rights and properties belonging to the original contract are continued during the period in question, and among them the landlord's right to distrain. Therefore, where a part of the tenant's corn remained in a barn on the demised premises beyond the period of six calendar months, but within the term allowed by custom for the outgoing tenant to get in and dispose of his crop, it was held that the corn might be distrained by the landlord (p).

If, by the tacit consent of the landlord and tenant, the contract between them continues beyond the time for which they originally contracted, all the rights and properties belonging to the original contract are also continued, and among them the landlord's right to distrain. It has often been determined that if there be a lease, and after the determination of it, the tenant holds over, with the consent of the landlord, he must hold upon the terms, and is liable to all the conditions and covenants, of the lease(g). If after the determination of a tenancy by the expiration of a notice to quit the tenant holds over, and the landlord distrains for rent, the landlord thereby waives the notice, and affirms and continues the tenancy(r).

(m) Braithwaite v. Cooksey, 1 H. Bl. 465. In Maryland, it has been held that a distress for rent due from a deceased tenant may be made on the premises so long as they are in the possession of any person claiming by, from or under the deceased tenant, although letters of administration have not been granted. Keller v. Weber, 27 Md. 660. See Mickle v. Miles, 1 Grant's Cas. (Penn.) 320.

(n) Turner v. Barnes, 31 Law J., Q. B. 170. See 33 & 34 Vict. c. 35.

(0) Taylerson v. Peters, 7 Ad. & E. 110; 2 N. & P. 622.

(p) Beavan v. Delahay, 1 H. & Bl. 9. Lewis v. Harris, ib. 7, n. (a). Nuttall v. Staunton, 4 B. & C. 51.

(q) Beavan v. Delahay, 1 H. Bl. 9; ante, p. 635.

(r) Zouch v. Willingale, 1 H. Bl. 311.

711 Distress by agents-Joint tenants-Tenants in common, etc.—A mere receiver of rents (not being a receiver appointed by the Court of Chancery) has no power to distrain, although he may be authorized to collect and receive the rents for his own benefit(s). And when an agent or bailiff receives a special authority from the lessor to levy a distress upon the demised premises, the authority should be given and acted upon in the name of the lessor or reversioner. But if the agent distrains in his own name, and gives a notice in writing, stating the rent to be due to himself, he may, nevertheless, justify in the name and as the bailiff of the lessor. A person beneficially interested in the demised premises may use the name of the owner of the legal estate to levy a distress. The cestui que trust, therefore, may distrain in the name of the trustee, and a mortgagor, in certain cases, in the name of the mortgagee(t). A receiver appointed by the Court of Chancery has a power of distress, and need not previously apply to the Court for a particular order for that purpose(u). One joint-owner or joint-reversioner may distrain alone, but he must, it seems, avow and justify the taking of the distress in his own right, and as bailiff to the other(). He may also sign a warrant of distress, and appoint a bailiff to distrain for rent due to all, unless the others expressly dissent(w). The same rule prevails in the case of co-parceners and coheirs in gavelkind, any one of whom may avow and justify the distress in his own right, and make conusance as the bailiff of the others without averring or showing any express authority from them to distrain(x). If one of several joint-tenants of the reversion to which the rent is incident conveys away all his estate and interest in the demised premises, the right to distrain for the rent is extinguished, for there can be no apportionment of the rent by the severance of the reversion(y). The payment of rent in advance to a landlord mortgagor, unless by agreement the tenant is bound to do it, is not valid as against mortgagees, who may consequently distrain for it(z).

Tenants in common who have several estates, and are severally entitled to the rent and the reversion of the demised premises, should make several distresses. They may, of course, authorize a bailiff to

(8) Ward v. Shew, 2 M. & Sc. 756; 9 Bing. 608.

(t) Trent v. Hunt, 9 Exch. 14; 22 Law J., Exch. 320. Snell v. Finch, 32 Law J., C. P. 177; 13 C. B., N. S. 651.

(u) Brandon v. Brandon, 5 Madd. 473. Bennett v. Robins, 5 C. & P. 379.

(v) Pullen v. Palmer, 5 Mod. 73, 150; 3 Salk. 207.

(w) Robinson v. Hoffman, 1 M. & P. 474; 4 Bing. 562; 3 C. & P. 234.

(x) Leigh v. Shepherd, 5 Moore, 297; 2 B. & B. 465.

(y) Staveley v. Allcock, 16 Q. B. 636; 20 Law J., Q. B. 321.

(a) De Nicholls v. Saunders, L. R., 5 C. P. 589. See Cook v. Guerra, L. R., 7 C. P. 132.

AD, VOL. I.-41

d strain on behalf of all, or one tenant in common may distrain on his own account, and as the bailiff and agent of others, but they must avow and justify the taking of the distress separately in respect of their several shares(a). And one tenant in common may distrain for his own share of the rent, although the rent has been reserved in one sum payable to all generally, and not in several sums payable to each; and therefore, where a lessee holding under two tenants in common, at a yearly rent of 187., payable quarterly, received notice from one of them to pay to him a moiety of the rent as soon as it became due, and the lessee, notwithstanding such notice, paid the whole rent to the other tenant in common, it was held that the one who had thus given the notice might distrain upon the land for his moiety of theʼrent(b). Where fifty acres of arable land were demised by four persons (whose original title did not appear) at one entire rent of 947. per annum, to be divided and paid to the four lessors separately in equal portions, it was held that as between themselves and the lessee they must be taken to be tenants in common of the reversion, and that one of the four was entitled to distrain for a fourth part of the rent independently of the rest(c).

712 Distress by executors and administrators.-By 3 & 4 Wm. 4, c. 42, ss. 37, 38, the executors and administrators of a lessor or landlord may distrain upon lands demised for any term or at will for arrearages of rent due to such lessor or landlord in his lifetime.

713 Agreements not to distrain.-The right to distrain may be waived, abandoned, or postponed by the express contract or agreement of the landlord, for it is not an inseparable incident to a rent service(d). If, therefore, a landlord has agreed with the owner of cattle not to distrain them if they are put into a particular close, and they are afterwards distrained there by the landlord, in violation of his agreement, an action for a trespass in taking the cattle is maintainable against him(e).

714 Acceptance of a bill or note by way of payment.-A landlord is not deprived of his right to distrain by taking a bill, or note, or other security for the rent, unless it be proved that the landlord, at the time he accepted the security, bound himself not to distrain (f), or unless

(a) Litt. sec. 314-$17.

(b) Harrison v. Barnby, 5 T. R. 246.

(c) Whitley v. Roberts, McL. & Y. 107.

(d) Giles v. Spencer, 3 C. B., N. S. 244; 26 Law J., C. P. 237.

(e) Horsford v. Webster, 1 C. M. & R. 699. Welsh v. Rose, 6 Bing. 638; 4 M. & P. 490, (f) Davis v. Gyde, 2 Ad. & E. 626. See Bramwell v. Eglinton, 33 Law J., Q. B 130. Hen derson v. Boyer, 44 Penn. St. 220. Sherman v. Dutch, 16 Ill. 283.

it be proved that the note was paid at maturity(g). If the landlord's receiver or bailiff relinquishes a distress on receiving a bill or note for the rent from the tenant, and pays over the amount of the note to the landlord, and the note is subsequenly dishonored, the landlord may return the money to the bailiff or treat it as an advance or loan from him, and distrain again for the unpaid rent(h).

715 Tender of rent before distress renders the distress wrongful ab initio. If, therefore, after a broker has received a warrant of distress, but, before it is executed, the rent is tendered, the right to distrain is gone(i).

716 Time, mode, and place of distraining.-The tenant has the whole day on which the rent becomes due to pay such rent, and a distress therefore cannot be made until the day after the day appointed for the payment of the rent(k). A landlord or his bailiff cannot lawfully break open gates, or break down inclosures, or force open the outer door of any dwelling-house or building(), or even enter by a window which is shut but not fastened(m), in order to make a distress, but he may enter by a door which is shut but not fastened, for that is the ordinary method of entry, and a person who leaves his door unfastened implies a license to any one who has business to enter the premises, and so he may draw a staple or undo fastenings which are ordinarily opened from the outside of the house(n), or perhaps enter by an open window(o). A distress, moreover, cannot be made after sunset, or before sunrise(p); nor upon land which does not form part or parcel of the demise, and from which the rent reserved does not issue, unless the goods of the tenant have been removed thereto from the demised premises within sight of the lord coming to distrain, or unless they have been fraudulently removed thereto by the tenant to avoid the distress. If, therefore, a tenant enjoys an easement over, or a right to use, the land of a third person, and has, in the bonâ fide exercise of such right, placed his goods and chattels on the land of such third person, the lessor has no right to distrain them there. Thus, where a

(g) Harris v. Shipway, Bull. N. P. 182a. Giles v. Ebsworth, 10 Md. 333. Snyder v. Kunkleman, 3 Penn. 487. Bailey v. Wright, 3 M'Cord, 484.

(h) Parrott v. Anderson, 7 Exch. 93; 21 Law J., Exch. 291.

(i) Bennett v. Bayes, 5 H. & N. 391; 29 Law J., Exch. 224.

(k) 21 Hen. 6, 40. Duppa v. Mayo, 1 Saund. 287.

(1) Brown v. Glenn, 16 Q. B. 251; 20 Law J., Q. B. 205. Dent v. Hancock, 5 Gill, 120.

(m) Nash v. Lucas, L. R., 2 Q. B. 590.

(n) Ryan v. Shilcock, 7 Exch. 72; 21 Law J., Exch. 55.

(0) Nixon v. Freeman, 5 H. & N. 647.

(p) Co. Litt. 142a; Gilbert on Distress, 50. Tutton v. Darke, 5 H. & N. 654; 29 Law J., Exch. 271. Sherman v, Dutch, 16 Ill. 283. Fry v. Breckinridge, 7 B. Mon. 31.

wharf on the banks of a tidal river was demised to a tenant at an annual rent, with a right to use part of the bed of the river, between high and low-water mark, as a place of deposit for boats, and barges. resorting to the wharf, it was held that the lessor of the wharf had no right to distrain the barges of the tenant lying on such land and bed of the river alongside the wharf, although they were attached to the wharf by head and stern-ropes, inasmuch as the land on which the barges were lying belonged to the crown, and had never been demised to the tenant(g). For the same reason a landlord could not, by the common law, distrain the beasts and cattle of a tenant feeding upon a common, and which had been placed there by the tenant in the bonâ fide exercise of a right of common vested in him in his own right, or as appurtenant to the land demised to him by the lessor. But this has been altered by 11 Geo. 2, c. 19, s. 8, which empowers landlords to take and seize, as a distress for arrears of rent, any cattle or stock of their tenants feeding or pasturing upon any common appendant or appurtenant.

717 Things not distrainable.-Tenants' fixtures annexed to the freehold by nails and permanent fastenings, such as furnaces, chimney-pieces, kitchen-ranges, stoves, coppers, grates, blinds, etc., are not distrainable, as they cannot be removed and restored without sustaining some injury(r). But if they are attached to the freehold by bolts and screws, so as to be moveable, they may be distrained and taken. Therefore cotton-spinning machines fixed to a wooden floor by screws, or soldered to a stone flooring, but fastened so as to be readily removable, are distrainable(s). A millstone in a mill, and an anvil in a smith's shop, however, cannot be distrained for rent, although the anvil be removed out of the stock, or the millstone out of the socket to be picked, for the anvil is accounted part of the forge, and the millstone part of the mill, though when taken it is not actually affixed to the freehold(t). Tramplates and sleepers of a railway merely laid upon the ground, although they have become indented in the soil by user, are distrainable(u); but if they have been packed in ballast, so that they cannot be removed without making holes in the ballast, they are not(v).

(9) Buszard v. Capel, 8 B. & C. 141 ; 3 M. & P. 494; 6 Bing. 150.

(r) Co. Litt. 47b. Pitt v. Shew, 4 B. & Ald. 207. Darby v. Harris, 1 Q. B. 898. Dalton ♥. Whitten, 3 Q. B. 961.

(8) Hellawell v. Eastwood, 6 Exch. 309; 20 Law J., Exch. 155. See Longbottom v. Berry, L. R., 5 Q. B. 123; Holland v. Hodgson, L. R., 7 C. P. 328.

(t) Bro. Abr. DISTRESS, pl. 23.

(u) Beaufort (Duke of) v. Bates, 3 De G., F. & J. 381; 31 Law J., Ch. 481.

(v) Turner v. Cameron, L. R., 5 Q. B. 306.