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land, they are distrainable immediately by the lessor for his tenant's rent, as a punishment to the owner of the beasts for the wrong committed through his negligence. But if the lands were not sufficiently fenced so as to keep out cattle, the landlord cannot distrain them till they have been levant et couchant on the land, that is, have been long enough there to have lain down and rose up to feed, which in general is held to be one night at least; and then the law presumes that the owner may have notice whither his cattle have strayed, and it is his own negligence not to have taken them away. Yet if the lessor, or his tenant, were bound to repair the fences, and did not, and thereby the cattle escaped into their grounds without the negligence or default of their owner; in this case, though the cattle may have been levant et couchant, yet they are not distrainable for rent, till actual notice is given to the owner that they are there, and he neglects to remove them.

4. There are also other things privileged by the ancient common law; as a man's tools and utensils of his trade, the axe of a carpenter, the books of a scholar, and the like. So beasts of the plough, and sheep, are privileged from distresses at common law; while dead goods, or other sorts of beasts, which Bracton calls catalla otiosa, may be distrained. But, as beasts of the plough may be taken in execution for debt, so they may be for distress by statute, which partakes of the nature of execution. And perhaps the true reason why these and the tools of a man's trade were privileged at the common law, was because the distress was then merely intended to compel the payment of the rent, and not as a satisfaction for its nonpayment; and therefore to deprive the party of the instruments and means of paying it, would counteract the very end of the distress. But, by modern decisions, these are held to be distrainable for rent, provided no other sufficient distress is to be had. (See Gorton v. Faulkner, 4 T.R. 565.) And in all cases are they distrainable for poor's rates.

5. Nothing shall be distrained for rent, which may not be rendered again in as good a plight as when it was distrained; for which reason, milk, fruit, and the like, cannot be distrained; a distress at common law being only in the nature of a pledge or security, to be restored in the same plight when the debt is paid. So, anciently, sheaves or shocks of corn could not be distrained; because some danger must needs accrue in their removal; but a cart loaded with corn might, as that could be safely restored. But now, by 2 W. & M. c. 5. corn in sheaves or shocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distrained, as well as other chattels.

6. Lastly, things fixed to the freehold may not be distrained; as cauldrons, windows, doors, and chimney-pieces, for they savour of the realty. For this reason, also, corn growing could not be distrained till the 11 Geo. II. c. 19. empowered landlords to distrain corn, grass, or other products of the earth, and to cut and gather them when ripe.

Let us next consider, how distresses may be taken, disposed of, or avoided: and, in pointing out the methods of distraining, we shall in general suppose the distress to be made for rent; and remark, where necessary, the differences between such distress and one taken for other causes.

In the first place, then, all distresses must be made by day, (but not until after the day on which the rent becomes due, for if the rent be paid on any part of that day, whilst a man can see to count money, the payment is good); unless in the case of damage feasant, an exception being there allowed, lest the beasts should escape before they are taken. And when a person intends to make a distress, he must, by himself or his bailiff, enter on the demised premises; formerly, during the continuance of the lease; but now if the tenant hold over, the landlord may distrain within six months after the determination of the lease, provided his own title or interest, as well as the tenant's possession, continue at the time of the distress.

If the lessor do not find sufficient distress on the premises, formerly, he could resort no where else; but now the landlord may distrain any goods of his tenant, carried off the premises clandestinely, wherever he finds them, within thirty days after, unless they have been bona fide sold for a valuable consideration; and all persons privy to, or assisting in such fraudulent conveyance, forfeit double the value to the landlord.

The landlord may also distrain the beasts of his tenant feeding upon any common or wastes appendant or appurtenant to the demised premises. And he may, by the assistance of the peaceofficer of the parish, break open, in the day time, any place whither the goods have been fraudulently removed and locked up to prevent a distress; oath being first made, in case it be a dwellinghouse, of a reasonable ground to suspect that such goods are concealed therein.

Where a man is entitled to distrain for an entire duty, he ought to distrain for the whole at once; and not for part at one time, and part at another. But if he distrain for the whole, and there be not sufficient on the premises, or he happen to mistake in the value of the thing distrained, and so take an insufficient distress, he may take a second distress to complete his remedy.

Distresses must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. III. c. 4. if any man take a great or unreasonable distress for rent-arrear, he shall be heavily amerced for the same. As if the landlord distrain two oxen for twelve-pence rent, the taking of both is an unreasonable distress: but if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, it is said that no distress can be excessive; for as these distresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. The remedy for excessive distress is by a special action on the statute of Marlbridge: for an action of trespass is

not maintainable upon this account, it being no injury at the common law.

Distress must not be made after tender of payment: for if the landlord should come to distrain the goods of his tenant for rent due, the tenant may, before the distress, tender the arrears; and if a distress be taken after that, it is wrong. If the landlord have distrained, and the tenant before the impounding thereof should tender the arrears, the landlord ought to deliver the distress; and if he do not, the detainer is unlawful. Even so it is for a distress for damage feasant: the tender of amends before the distress makes the distress unlawful; and after the distress, if before the impounding, the detainer is unlawful. But in this case, though the owner should tender sufficient amends, he cannot take his beast out of the pound, if the amends be refused; but he must replevy: and should it be found at the trial, that the amends were not sufficient, the sons on whom they trespassed shall have damages; if the amends offered were sufficient, the owner of the beast shall have damages.


When the distress is taken, the next consideration is the disposal of it. For which purpose, the things distrained must in the first place be carried to some pound, and there impounded by the taker. But in their way thither, they may be rescued by the owner, in case the distress was taken without cause, or contrary to law; as, if no rent be due, if they were taken upon the highway, or the like; in these cases the tenant may lawfully make rescue. But if they once be impounded, even though taken without any cause, the owner may not break the pound, and take them out; for they are then in the custody of the law.

A pound (parcus, which signifies any inclosure) is either pound overt, that is, open over-head, or pound corert, that is, close. By the 1 & 2 W. & M. c. 12. no distress of cattle can be driven out of the hundred where it is taken, unless to a pound overt within the same shire, and within three miles of the place where it was taken. This is for the benefit of the tenants, that they may know where to find and replevy the distress.

By the 56 Geo. III. c.50. to regulate the sale of farming stock taken in execution, it is enacted, that no sheriff or other officer shall, by virtue of any process, carry off, or sell, or dispose of, for the purpose of being carried off from any lands let to farm, any straw threshed or unthreshed, or any straw of crops growing, or any chaff, colder, or any turnips, or any manure, compost, ashes, or sea-weed, in any case whatsoever; nor any hay, grass or grasses, whether natural or artificial, nor any tares or vetches, nor any roots or vegetables, being the produce of such lands, in any case where, according to any covenant or written agreement entered into for the benefit of the landlord, such hay, grass or grasses, tares and vetches, roots or vegetables, ought not to be taken off from such lands, or which, by the tenor of such covenants, ought to be used thereon, and of which such sheriff or officer shall have received a written notice before sale. §1.

The tenant shall, on having knowledge of such process, give a

written notice to the sheriff or officer of such covenants, and also of the name and residence of the landlord; and such sheriff or officer shall forthwith, and before sale, send a notice by the general post to the landlord, and also to the known steward or agent of such landlord, stating the fact of possession having been taken; and such sheriff or officer shall, in all cases of the absence or silence of such landlord or his agent, postpone the sale until the latest day he lawfully can. § 2.

But the sheriff or officer may dispose of any crops hereinbefore mentioned to any person who shall agree in writing to use the same on such lands, in such manner as shall accord with the custom of the country; and in cases where any covenant or agreement shall be shewn, then according to such covenant; and after such sale, so qualified, it shall be lawful for such persons to use all such necessary barns, stables, buildings, outhouses, yards, and fields, for the purpose of consuming such crops, as such sheriff or officer shall allot to them for that purpose, and which such tenant would have been entitled to have used for the like purpose. § 3.

And such sheriff or officer shall, on the request of any landlord aggrieved by any breach of such agreement, permit such landlord to bring any action in the name of such sheriff or officer, for the recovery of damages, such landlord having indemnified such sheriff or officer against costs. § 4.

Such sheriff or officer shall, before sale, make due inquiry within the parish, as to the name and residence of the landlord. §5.

And in all cases where any purchaser shall have entered into any agreement with such sheriff or officer, it shall not be lawful for the landlord to distrain for rent on any corn, hay, straw, or other produce, severed from the soil, and sold, subject to such agreement, by such sheriff or officer; nor on any turnips, whether drawn or growing, if sold according to this act; nor on any horses, sheep, or other cattle, nor on any beasts whatsoever, nor on any waggons, carts, or other implements of husbandry, which any person employ or use for the purpose of threshing out, carrying, or consuming any such produce, under this act, and the agreement between the sheriff or officer and the purchasers of such produce. § 6.

No sheriff or officer shall sell any clover, rye-grass, or any artificial grass whatsoever, newly sown, and growing under any crop of standing corn. §7.

But this act shall not extend to any straw, turnips, or other articles, which the tenant may remove from the farm consistently with some contract in writing. § 8.

Where any action shall be brought against such sheriff or officer, no plaintiff shall be entitled to recover any damages, unless it be proved that the breach or omission was wilful. §9.

No sheriff or under-sheriff, nor any of their deputies, agents, bailiffs, or servants, nor any persons who shall purchase any hay, straw, chaff, turnips, grasses, or other produce before mentioned, under this act, shall be deemed to be a trespasser by reason of com

ing upon or remaining in possession of any barns or other buildings, yards, or fields, for the purpose of threshing out or consuming any straw, hay, turnips, or other produce under this act, or for doing any thing necessary, though such acts shall have been done after the return of the process. § 10.

No assignee of any bankrupt, or any insolvent debtor's estate, nor any assignee under any bill of sale, nor any purchaser of the goods, chattels, stock, or crop of any person engaged in husbandry, on any lands let to farm, shall take, use, or dispose of any matters as aforesaid, in any other manner than such bankrupt, insolvent debtor, or person employed in husbandry, ought to have taken, used, or disposed of the same. § 11.

By the 11 Geo. II. c. 19. which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises upon which a distress is taken into a pound pro hác vice for securing of such distress.

If a live distress of animals be impounded in a common pound overt, the owner must take notice of it at his peril; but if in any special pound overt, so constituted for this particular purpose, the distrainor must give notice to the owner: and in both these cases, the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they are put in a pound covert, as in a stable, or the like, the landlord or distrainor must feed and sustain them.

A distress of household goods, or other dead chattels, which are liable to be stolen, or damaged by the weather, ought to be impounded in a pound covert; else the distrainor must answer for the consequences.

If a person distrain beasts for damage-feasant, and as he drives them towards the pound, they enter into the owner's house, and he withhold them there, and will not re-deliver them upon demand, this detainer is a rescous in law. And by the common law, if a man break the pound, or the lock of it, he is deemed guilty of a breach of the peace, and the party who distrained may take the goods again wherever he shall find them, and again impound them; and by 2 W. c. 5. on any pound breach or rescous of goods distrained for rent, the party aggrieved shall, in a special action upon the case, recover treble damages and costs against the defendant, or against the owner of the goods, if they are afterwards found to have come to his use or possession.

When impounded, the goods were formerly considered only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it hath been held, that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damagefeasant, and distresses for suit of services; which must remain impounded till the owner make satisfaction, or contests the right of distraining by replevying the chattels.

And it has been held, that even a cow may not be milked: for hough the cow be the better for this, yet he who took the distress

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