CHAP. XVII. DISTRESS. I. Of the Nature and Origin of a Distress. II. Of the Causes for which a Distress may be taken. III. Of the Things which may, and the Things which may not be distrained. IV. Who may distrain. V. Of the Time at which a Distress may be taken. VI. Of the Place where a Distress may be taken. VII. The Manner of disposing of Distresses, and herein of the Sale of Distresses for Rent Arrear. VIII. Of Pound Breach and Rescous. IX. Of abusing the Distress, and of Irregularity in the Proceedings by the Party distraining. I. Of the Nature and Origin of a Distress. THE power of distraining was given to the lord (in lieu of the forfeiture of the land,) for the purpose of enforcing the tenant to perform those services which were the consideration of his enjoyment of the land. Hence the distress was considered merely as a pledge, and the detention thereof was justifiable only so long as the duties incident to the tenure remained undischarged. If the tenant offered gages and pledges for the performance of the services, and the lord, after such offer, persisted in detaining the distress, the tenant might sue out a writ of replevin, the tenor of which was, that the defendant had taken and unjustly detained the goods, "against gages and pledges." This form is still preserved in the proceedings in replevin, but the offer of gages and pledges has fallen into disuse. The replevin was considered as so much a matter of right, that if a person by deed granted a rent with a clause of distress, and granted further, that the distresses taken should be irreplevisable, yet they might be replevied, such a restriction being against the nature of a distress. Goods distrained are not liable to the distress of another subject, because in custody of the law; nor to another subject's execution, for the same reason. But an immediate extent against the king's debtor for the king's own debt, after a distress, but before actual sale, shall prevail, notwithstanding the custody of the law, on the ground of the general rule of preference allowed by law to the king's debts. II. Of the Causes for which a Distress may be taken. 1. At Common Law.-A distress may be taken for the nonperformance of services, either certain or such as may be reduced to certainty, viz. heriot-service, rent-service, suitservice, that is, suit to a hundred court, or court-baron; for non-payment of a fine imposed on an inhabitant of a manor, by the steward of a court leet, for refusing to take the customary oath, when elected to the office of a constable'; for non-payment of an amerciament in a court leet, for a nuisance, or for an offence done in court'; lastly, at common law, goods or cattle damage feasant may be distrained". A landlord cannot distrain", unless there be an actual demise to the tenant at a fixed rent. Hence where tenant holds under an agreement for a future lease, and no lease has been executed and no rent subsequently paid, the landlord cannot distrain. But payment of rent under such an agreement will constitute an acknowledgment of a tenancy from year to year, under which the landlord will be authorized to distrain; and so will admission of a charge of half a year's rent in an account between the parties. By stat. 6 Geo. 4. c. 16. s. 74. No distress for rent made a 1 Inst. 145. b. i 8 Co. 41. a. b Bro. Distr. 75. cited by Ld. C. B. k Prat v. Stearn, Cro. Jac. 382. Parker, 2 Ves. 294. c Bro. 28. Finch, 11. cited by Ld. C. B. Parker, in R. v. Cotton, Parker, 120. d R. v. Cotton, Parker, 112. e 1 Inst. 96. a. f 1 Rol. Abr. 665. 1. 47. Plowd. 96. g Litt. sec. 213. h 1 Rol. Abr. 665. 1. 40. 1 1 Roll. Abr. 666. 1. 1. m 1 Inst. 142. a. 161. a. n Dunk v. Hunter, 5 B. & A. 322. o Knight v. Benett, 3 Bingh. 361. Mann v. Lovejoy, Ryan and Moody, 355. p Cox v. Bent, 5 Bingh. 185. and levied after an act of bankruptcy, upon the goods of any bankrupt (whether before or after the issuing the commission,) shall be available for more than one year's rent, accrued prior to the date of the commission, but the landlord or party to whom the rent shall be due, shall be allowed to come in as a creditor for the overplus of the rent due, and for which the distress shall not be available. By Prescription.-By prescription, a distress may be taken for an amerciament in a court baron: for a penalty imposed for a breach of a bye-law'; for a toll in a fair3 (1). 3. By Statute.-It would be an endless task to enumerate all the statutes which give a remedy by distress; the following, however, cannot be omitted: By stat. 4 Geo. 2. c. 28. s. 5. " Every person, body politic and corporate, may have the like remedy by distress, and by impounding and selling the same, in cases of rent-seck (2), rents of assize, and chief rents, which have been duly answered or paid, for the space of three years, within the space of twenty years before the 23d day of January, 1731, or shall be thereafter created, as in case of rent reserved upon lease." In Bradbury v. Wright, Doug. 624. the court were of opinion that a rent reserved on a grant in fee (3), made after the statute q 1 Rol. Abr. 666. 1. 6. r Dyer, 321. b. 322. a. pl. 23. s 1 Rol. Abr. 666. 1. 10. 15. (1) A distress may be taken, where the custom warrants it, for an amerciament, or fine imposed by the steward of a court baron. Co. Ent. tit. Replevin, pl. 1. (2) N. There cannot be a rent-seck issuing out of a term for years. Hence, if a lessee for years assign his term, reserving to himself a rent, he cannot enforce the payment of such rent by distress; because a rent so reserved was not distrainable for at common law, and not being a rent-seck, it cannot be distrained for under the operation of this statute, v. Cooper, C. B. 2 Wils. 375., Parmenter v. Webber, 2 Moore, (C. P.) 656.; so if termor lease for remainder of term.— Preece v. Corrie, 5 Bingh. 24.; but in such case an action of debt is maintainable, Newcomb v. Harvey, Carth. 161., or assumpsit, 5 Bingh. 27. (3) A rent of this kind, prior to the statute of quia emptores, would have been properly denominated a fee-farm rent. The word fee-farm imports every rent or service, whatever the quantum may be, which is reserved on a grant in fee. It is not properly applicable to any rents, except rent-service. Hence, since the statute of quia emptores, the granting in fee-farm, except by the king, is become impracticable; for, by the operation of that statute, the grantor of quia emptores, and before the 4 Geo. 2. c. 28. was in its nature a rent-seck, and that it could not be distrained for except under the preceding statute; in which case the distrainor, in his avowry, ought to have alleged, that the rent had been duly answered or paid, for the space of three years, within the space of twenty years, before the first day of the session of parliament in which this statute was made. By stat. 11 Geo. 2. c. 19. s. 18. "Landlords may distrain for double rent, upon tenants who do not deliver up possession after having given notice of their intention to quit, during all the time such tenants continue in possession." This statute applies to those cases only, where the tenant has the power of determining his tenancy by a notice; and where he actually gives a valid notice sufficient to determine it. Johnstone v. Hudlestone, 4 B. & C. 922. Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had for such rents in a court of equity'. III. Of the Things which may, and the Things which may not, be distrained. 1. For Rent Arrear.-It may be laid down as a general proposition, that all moveable chattels of the tenant may be distrained for rent arrear, if they are found upon the land demised", out of which the rent issues, but no where else. Hence where the exclusive use of the land of the river Thames opposite and in front of a wharf between high and low water-mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised t Per Comyns, B. Exch. Trin. 5 and 6 Geo. 2. MSS. u Com. Dig. Distress, B. 1. and 4 T. R. 567. S. P. per Ld. Kenyon, C. J. in Gorton v. Falkner. parting with the fee is without any reversion, and without a reversion there cannot be a rent-service*. But a grant in fee, reserving a perpetual rent, with a power of distress, will be good as a rentcharget. And it seems, that if such a rent were created at this day, without a power of distress, as it must be considered as a rent-seck, it would be distrainable for under the before-mentioned statute, 4 G. 2. c. 28. s. 5. *Litt. sec. 216. t Harg. 1 Inst. 143. b. n. 5. VOL. I. X X as appurtenant to the wharf, but the land itself between high and low water was not demised; it was holden, that the lessor could not distrain for rent arrear barges, the property of the tenant, lying in the space between high and low water-mark, and attached to the wharf by ropes. If the cattle of a stranger are trespassers on the land of the tenant, the lord may distrain them, although the stranger make fresh suit, and although the cattle be not levant and couchant. But if the cattle of their own accord leave the land, the lord cannot distrain them. So a lessor cannot distrain a stranger's cattle which escape from a close belonging to a stranger, into the land whence the rent issues, through defect of fences, which either the lessor or his tenant was bound to repair (4). If the estate of tenant at will be determined either by his own death, or by the act of the landlord, he or his executors may reap the corn sown by him. And therefore, such corn, though purchased by another person, cannot be distrained (in case of the death of the tenant at will) for rent due from a subsequent tenant. So growing corn sold under a fieri facias is protected from a distress for rent. With respect to those things which by law are privileged from distress, it may be observed that some are privileged absolutely, and some conditionally. In the first class may be numbered, 1. Animals, feræ naturæ, whereof a valuable property is not x Capel v. Buszard, Exch. Ch. 6 Bingh. b 2 Leon. 7. 150. y 7 H.7.1. b 2. a. z 15 H. 7. 17. b. a 11 H. 7.4. a. c Dyer, 317. b. 318. a. d Eaton v. Southby, Willes, 131. (4) There is a difference between a lord distraining within his seignory, and a landlord distraining for rent reserved on his own lease; for the lord has nothing to do with the land or the fences, and so it is not material to him whether the fences are repaired or not; but it is otherwise of a landlord; for he himself ought to repair, or to provide that his tenant repairs them, else he would take advantage of his own wrong. And this diversity seems to be warranted by the books, Dy. 317, 318. 22 Edw. 4. 49 b. 7 H. 7. 1. 10 H. 7. 21. 15 H. 7. 17. But if the cattle escape into the land without any defect of the fences, or where the tenant of the land in which they are distrained, is not bound to repair the fences, through the defect of which the cattle escape and are distrained, it is immaterial to the lord or landlord, whether they are levant and couchant or not." Per Saunders, in Poole v. Longueville, 2 Saund. 289. See also Kemp v. Cruwes, 2 Lutw. 1580. |