was entitled to seize the distress, and afterward to sell it. Though the law has been changed in this particular, still it is important to remember the origin of this remedy; for if it would be known in any given case whether at common law recourse may be had to a distress to enforce the duties connected with a tenure, we have only to ascertain whether, if the ancient law had continued unchanged, the tenement would have been forfeited by their non-observance. Although this rule is simple and easy of application, it may be well to illustrate it by one or two examples: If the landlord has aliened the seignory or reversion, he is no longer a party to the tenure, and therefore, as no forfeiture of the land can accrue to him, he cannot distrain, so that the distrainor must be entitled to the reversion when the distress is made; for the same reason, if he has accepted a new tenant, no distress can be taken for the arrears of rent due from the former one. It has, however, been held that if the tenant holds over, a distress may be made while he continues in possession.

22

2451. It is the opinion of the learned writer" that this notion of distraining was derived from the civil law, which gave "the creditor the faculty of selling out of several pledges which were pledged to him that which he chose to pay the obligation or discharge the claim which was due to him;" the words of the Pandects, which he cites, are creditoris arbitrio permittitur, ex pignoris sibi obligatis quibus velit distractis, ad suum commodum pervinere. A considerable difference will easily be perceived between the Roman and our law on this subject. In the former the pignus and hypotheca were pledges delivered by the debtor, or taken by the creditor under particular stipulations; whereas the remedy of distress by the English law, which has been adopted with some ameliorations in many parts of the United States, of taking a pledge or security out of the hands of another for the satisfaction of a demand, exists without his

consent.

2452. In some of the states of the Union the essential parts of the statute and common law of England have been adopted in relation to distresses. This is the case in Pennsylvania, New Jersey, Delaware, Indiana, Illinois, Maryland, and Virginia.23 In Kentucky, Florida, Texas, and Georgia, and perhaps some other states, the right of distress exists, but it is placed under some wise restrictions; the landlord must make application to a judge or other officer designated by the law, make oath that the rent is due, and obtain a warrant from him, by virtue of which a distress is made by a sheriff or constable. In Massachusetts, Alabama, Mississippi, North Carolina, New York, Tennessee, and Ohio the right of distress does not seem to exist; 25 and in North Carolina it has been judicially declared to be of no force in the state.26 The remedy in Louisiana is not the same, but the law gives a lien in certain cases on the goods. of the tenant, called the lessor's privilege." In the New England states, where they attach property on original or mesne process, the law of distress for rent, as practiced in England, does not exist.28

24

2453. A distress may be made for several purposes, but always to enforce an obligation either conventional or legal, or to prevent a wrong.

Cattle may be distrained damage feasant, but frequently the action of trespass is a preferable remedy. They cannot be so distrained by a person who has a

21 Gilbert, Distresses, 2.

22 Dig. 20, 5, 8. The creditor has the faculty of selling of several things which have been pledged to him that which he may choose to satisfy his claim.

3 Kent, Comm. 472, 4th ed.

25 Guild v. Rogers, 8 Barb. N. Y. 502.

26

24 4 Dane. Abr. c. 110, art. 3, p. 126.

Dalyleish v. Grandy, Cam. & N. No. C. 22; Deaver v. Rice, 4 Dev. & B. No. C. 431. "La. Civ. Code, arts. 2675-2679.

28 3 Kent, Comm. 638, 10th ed.; 2 Dane, Abr. 451.

mere possession and not a legal title to the land. They must be taken while doing damage, and not after it is done, or while they are off the land. After they have been distrained the cattle must not be beaten, nor worked, nor used."

By virtue of sundry legislative acts which give that remedy, a distress may be made of goods for the purpose of enforcing a duty; as, to pay taxes.

The principal use of the remedy by distress is to enforce the payment of rent. In the discussion of the subject it will be convenient to consider the kinds of rent for which a distress may be made, the persons who may make it, the goods which may be distrained, the time when the distress may be made, where it may be made, the manner of making it and of disposing of the goods distrained, and the effect of a distress. But it must be remembered that this is the remedy at common law, and as it has been altered by the English statutes, varied in some points in perhaps most of the states of the Union.

2454. A distress may in general be taken for any kind of rent in arrear, the detention of which beyond the day of payment is an injury to him who is entitled to receive it.30

The rent must be reserved out of a corporeal hereditament, and must be certain in its quantity, extent, and time of payment, or at least be capable of being reduced to a certainty.31 When the rent is a certain quantity of grain, the landlord may distrain for so many bushels in arrears and name the value, in order that, if the goods should not be replevied or the goods tendered, the officer may know what amount of money is to be raised by the sale, and in such case the tenant may tender the arrears in grain.32 And so where the rent may be reduced to a certainty; as when, on the demise of a grist mill, the lessee was to render one-third of the toll, it was held the lessor might distrain for the rent.33 But when the rent is not certain and it cannot be reduced to a certainty, no distress can be made; as, where by the agreement the lessee was to pay no rent, and in lieu of it he was to make repairs; or where the tenant agreed instead of rent to render "one-half part of all the grain of every kind, and of all the hemp, flax, potatoes, apples, fruit, and other produce of whatever kind that should be planted, raised, sown, or produced on or out of the demised premises," the landlord cannot perhaps distrain at all on account of the uncertainty.35

34

2455. With respect to the amount of the rent for which the lessor may make a distress, it may be laid down as a general rule that whatever can properly be considered as a part of the rent may be distrained for, without considering the particular mode in which it is agreed to be paid; so that where a person entered into possession of certain premises, subject to the approbation of the landlord, which was afterward obtained by agreeing to pay rent in advance from the time he came into possession, it was determined in England that the landlord might distrain for the whole sum accrued before and after the agreement.3

29 1 Chitty, Pract. 656-659.

30

3 Sharswood, Blackst. Comm. 6.

1 Coke, Litt. 96, a; Diller v. Roberts, 13 Serg. & R. Penn. 64; Wells v. Hornish, 3

Penn. 30.

32 Warren v. Forney, 13 Serg. & R. Penn. 52.

Penn. 531; Helvor v. Pott, 3 Penn. St. 179. 33 Fry v. Jones, 2 Rawle, Penn. 11.

35 Warren v. Forney, 13 Serg. & R. Penn. 52. Penn. 157.

36

See Jones v. Grundrim, 3 Watts & S.

34 Grier v. Cowan, Add. Penn. 347. But see Reinhart v. Olwine, 5 Watts & S.

Cowp. 784. In New York it was determined that an agreement that the rent should be paid in advance is a personal covenant on which an action lies, but not distress. 1 Johns. N. Y. 384. The supreme court of Pennsylvania declined to decide this point, as it was not necessarily before them. Diller v. Roberts, 13 Serg. & R. Penn. 60. See Martin's Appeal, 5 Watts & S. Penn. 221.

No distress can be made for interest on rent; 37 but it may be recovered from the tenant by action, unless under particular circumstances.

40

38

Nor can a distress be taken for a nomine pœnæ, unless a special power to distrain be annexed to it by deed. By nomine ponce is meant the name of a penalty incurred by the lessee to the lessor for the non-payment of rent on the day appointed by the lease or agreement for its payment; it is usually a gross sum of money, though it may be anything else appointed to be paid by the tenant to the reversioner, if the duties are in arrear, in addition to the duties themselves."1

2456. When the landlord is sole owner of the estate out of which the rent is payable to him, he may, of course, distrain in his own right. He must then have the right of reversion, for if he has parted with that, he has no title.2

2457. Joint tenants, when convenient, should all join in making the distress; and this is the better way, as it removes difficulties which may afterward arise. Still, however, as they have, each of them, an estate in every part of the rent, each may distrain alone for the whole, although he must afterward account with his companions for their respective shares of the rent.43

2458. Tenants in common do not, like joint tenants, hold by one title and by one right, but by different titles, and have several estates; one cannot, therefore, distrain for the whole of the rent, for if he did, he would distrain for that to which he has no title; each should, therefore, distrain separately for his share. But when from necessity this cannot be done, as where the thing due is a horse, which is incapable of division, all the tenants in common must join in the distress.45 Each tenant in common is entitled to receive from the lessee his proportion of the rent; and, therefore, when a person holding under two tenants in common paid the whole rent to one of them, after having received a notice to the contrary from the other, it was held the party who gave the notice might afterward distrain.46

As tenants in common have no original privity of estate between them as to their respective shares, one may lease his part of the land to the other, rendering rent, for which a distress may be made; as, if the land had been demised to a stranger.47

2459. At common law, in cases of distrainable rents, the distress was incident to the reversion, except in the case of a rent charge. And as in all cases where the wife has an estate of freehold only, or of freehold of inheritance, the immediate freehold of such lands in leases is not in the husband alone, but in the husband and wife, in right of the wife; when distress is made in respect of such reversion, it ought to be joint, as following the nature of their estate, whether the rent accrued before or after the coverture.48

But where the reversion is a chattel real, as, if a woman be possessed of a term of twenty years, and before coverture makes a lease for ten years, the husband has a right during the coverture to vest this chattel in himself, by reducing it in a possession, and in that case, as the wife would have no right, he must alone distrain for the rent.

2460. A tenant by the curtesy has an estate of freehold in the lands of his wife, and in contemplation of law a reversion of all lands of the wife leased. for years or lives, and may distrain at common law for rents reserved thereon.

The chattels real of the wife on her death vest absolutely in the husband; and if out of such chattel real a rent is payable, he alone is entitled to distrain.

2461. A woman may be endowed of rent as well as of land; if, therefore, a husband, tenant in fee, make a lease for years, reserving rent, and die, his widow shall be endowed of one-third part of the reversion by metes and bounds, together with a third part of the rent." The rent in this case is apportioned by the act of law, and therefore if the widow be endowed of a third part of a rent in fee, she may distrain for that third part, and the heir shall have the right to distrain for the other part of the rent.50

2462. A tenant for life, whether for his own life or that of another, has an estate of freehold, and when he makes a lease for years, reserving rent, he is entitled to distrain upon the lessee. It may here be remarked that, at common law, if a tenant for life made a lease for years, if he should so long live, at a certain rent payable quarterly, and died before the quarter-day, the tenant was discharged of that fraction of a quarter's rent by the act of God, for no one was entitled to recover it; but this was remedied by statute of 11 Geo. II, c. 19, s. 15, which gives an action to the executors or administrators of the tenant for life; and this equitable provision has been adopted in perhaps all the states of the Union.

2463. The heir when entitled to the reversion may distrain for rent arrear which becomes due after the ancestor's death; and in order to ascertain whether the rent became due before or after the death of the ancestor, we must recollect that the rent does not become due for this purpose until the last minute of the natural day; and if the ancestor die between sunset and midnight, the heir and not the executor shall have the rent.52 And if the rent be payable at one of two periods, at the choice of the lessee, and the lessor die between them, the rent being unpaid, it will go to the heir.53

2464. Devisees, like heirs, may distrain in respect of their reversionary estate; for by a devise of the reversion the rent will pass with its incidents.5* 2465. Trustees in whom the legal estate is vested, as trustees of a married woman or assignees of an insolvent, may of course distrain in respect of their legal estates, in the same manner as if they were beneficially interested therein.

2466. Guardians may make leases of their ward's lands in their own names which will be good during the minority of the ward, and consequently, in respect of such leases, they possess the same powers of making distress as other persons granting leases in their own rights.

55

2467. In general, goods found upon the premises demised to a tenant are liable to be distrained by a landlord for rent, whether such goods belong in fact to the tenant or to other persons.56 But such goods are sometimes privileged from distress, either absolutely or conditionally.

Of

2468. Goods are absolutely privileged from distress for various reasons : Because they are protected on account of the rights of their owners. this kind are the goods of a person who has some interest in the land, jointly

49 Coke, Litt. 32, a.

50 Brooke, Abr. Avowry, pl. 139.

52

51 Clunn's case, 10 Coke, 128.

1 Saund. 287. For the purpose of making a re-entry, the rent is considered due at sunset. Comyn, Dig. Rent, D, 7; Bacon, Abr. Rent, I; Jackson v. Harrison, 17 Johns. N. Y. 66.

53 Clunn's Case, 10 Coke, 128, b.

54 Sacheverell v. Frogate, 1 Ventr. 161.

55 Shopland v. Rydler, Croke, Jac. 55, 98.

Dallam, Dig. of Laws

56 In some states this right is limited. In Texas, a distress can be made only on the crop which grew upon the land, and even that is restricted as to time. of Texas, 199, 200.

with the distrainor, as those of a joint tenant, which, although found upon the land, are not subject to distress. The goods of a former tenant, rightfully on the land, cannot be distrained for another's rent; for example, a tenant at will, if quitting upon a notice from his landlord, is entitled to the emblements or growing crops; and, therefore, even after they are reaped, if they remain on the land for the purpose of husbandry, they cannot be distrained for rent due by the second tenant, and they are equally protected in the hands of his vendee.57 The goods of an ambassador or other foreign minister who is protected by act of congress from all actions cannot be distrained.

Because no man can have property in them. As every thing which is distrained is presumed to be the property of the wrong doer, it follows that things in which no man can have an absolute and valuable property, as cats and dogs, and animals feræ naturæ, cannot be distrained; because in animals feræ naturæ there can be no property without possession, and as the property in them is lost with the loss of possession, they are incapable of being held as a pledge.58 Yet if deer, which are of a wild nature, are kept in a private enclosure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent59.

61

62

Because they cannot be restored to the owner in the same plight in which they were taken; such as milk, fruit, and the like, which would be spoiled.60 Because they are fixed to the freehold and make a part of it, or are constructively annexed to it. Things affixed or annexed to the freehold, as furnaces, windows, doors, and the like, cannot be distrained, because they are not personal chattels, but belong to the realty. And this rule extends to such things as are essentially a part of the freehold, although for a time separated from it, as a millstone removed to be picked; for this is a matter of necessity, and it remains in contemplation of law a part of the freehold. Deeds which relate to the realty would probably be also exempted from distress. Upon the same principle of annexation, grass, corn growing in the ground, and the like, could not be distrained, but the English statute of 11 Geo. II, c. 19, s. 8, the principles of which have been adopted, perhaps, in most of the states of the Union, enables the landlord or lessor to seize all sorts of grass, hops, fruits, roots, pulse, or other product whatsoever which shall be growing on any part of the premises demised as a distress for rent. It has, however, been held that the word product is confined to the products of a similar nature with those specified in the statute, to all of which the process of becoming ripe, and of being cut, gathered, made, and laid up when ripe, is incidental, and therefore does not extend to trees, shrubs, and plants growing in a nursery ground.

63

Because it is against the policy of law that they should be distrained. Goods are privileged in cases where the proprietor is either compelled from necessity to place his goods upon the land, or where he does so for commercial purposes. Natural justice would require that the goods of the defaulter only should be distrained to pay his rent. It is for this reason that goods placed upon the land as a matter of necessity are not liable to be distrained; such as the goods of a traveller at an inn, or goods placed upon the land of a neighbor to save them from fire, or in case of goods put on shore to save them from shipwreck. Again, the interests of the community require that commerce should be encouraged; for adventurers would not engage in speculations if the property embarked were

57 Eaton v. Southby, Willes, 131.

59 3 Sharswood, Blackst. Comm. 7 60 3 Sharswood, Blackst. Comm. 9.

61 Coke, Litt. 47, b.

58 Hammond, Nisi P. 375.

62 Brooke, Abr. Distress, pl. 23; Gorton v. Faulkner, 4 Term, 567.

Clark v. Gaskarth, 8 Taunt. 431.