full costs. But section 20 provides, that tender of amends may be made.(h)

By 1 and 2 Phil. and Mary, c. 12, no distress is Pound. to be driven out of the hundred, rape, wapentake, or lathe, except to a pound overt within the same shire not above three miles distant from the place where the distress is taken; nor is any distress to be impounded at several places.

breach.

By 2 W. and M., sess. 1, c. 5, s. 4, treble Pound damages are given in an action on the case for rescous or pound breach.

food to ani

By 5 and 6 W. IV., c. 59, s. 4, persons im- Supply of pounding cattle or animals in any common pound, mals imopen pound, or close pound, or in any inclosed pounded. place, are to supply them with sufficient daily food and nourishment, the value of which they may recover from the owner. And by section 5, any person may enter a pound to supply such food and nourishment, without being liable to any action or proceeding of any kind by reason of such entry.

On Distress for Rent in Arrear.(i)

The rent distrained for must be in arrear, and the distress must not be made on the same day the rent

(h) But if the first entry be illegal and unjustifiable, as if no rent whatever be due, or if the party distraining break open the outer door or the like, none of his proceedings would be protected by this act.

(4) A distress for rent cannot be made in the night; that is, from after When to be sunset till sunrise, because the tenant would not have any notice to made. make a tender of his rent, which possibly he might do in order to prevent the distress.-Gilb. on Dist. 56. It cannot be made on the same day on which the rent becomes due; for, if the rent be paid at any time during that day, whilst a man can see to count it, the payment is good; although strictly, indeed, the rent is demandable and payable before sunset on the day whereon it is reserved, yet it is not due till the last minute of the natural day.-Buckle v. Taylor, 2 Term Rep. 600. Tracey v. Talbot, 6 Mod. 214.

Where there are separate demises there ought to be separate distresses Where there on the several premises subject to the distinct rents, for no distress on one are separate part can be good for both rents.-Rogers v. Birkmin, 2 Stra. 1042 Where demises. lands, however, lying in different counties are held under one demise at one entire rent, a distress may be lawfully taken in either county for the whole rent in arrear. Chasing a distress over is a continuance of the taking, if the counties adjoin.-Walter v. Rumball, 1 Ld. Raym. 55. S. C. 12 Mod. 76.

The distress should be made for the whole of the rent that is due at one Should be time, and not vexatiously make several distresses for different portions of made for the the same rent.-See Legg v. Strudwick, 2 Salk. 214. Birch v. Wright, 1 whole rent. Term Rep. 380.

EE

Distress for any kind of rent.

Property

becomes due; for if the rent be paid during any part of the day, whilst a man can see to count money, the payment is good. A tender of the rent by the tenant to the landlord before distress taken, makes the taking unlawful; and even if he has distrained, and the tenant before the impounding tender the arrearage, the landlord ought to deliver the distress.

It is now laid down as a universal principle, that a distress may be taken for any kind of rent in arrear, the detention whereof beyond the day of payment is an injury to him that is entitled to receive it.(j)

Before the statute 17, c. 2, s. 7, in case a distress was too little, where a sufficient distress was to be had, a man could not distrain again, be the demand ever so great, for it was folly that at first he distrained no more. (k) But now by section 4 of such statute, in all cases where the value of the cattle detained shall not be found to be the full value of the arrears distrained for, the party to whom such arrears were due, his executors or administrators, may distrain again for the residue of the said

arrears.

It may be laid down as a general rule, that all liable to dis- chattels personal are liable to be distrained, unless tress. particularly protected or exempted. (7)

What goods

The tools, utensils, or instruments, of a man's are privi trade or profession; as, the axe of the carpenter, or the book of the scholar, a stocking frame, or a

leged from distress.

Animals

(1) 3 Black, Com. 6.

(k) Mo. 7, Bradby. 130.

(1) 3 Black. Com. 7. Dogs, (according to old authorities,) bucks, does, conies, and the like, that are feræ naturæ, cannot be distrained.-1 Inst. feræ naturæ 47. But deer in an inclosed ground may be distrained for rent.-Will. 46. The exemptions appear to be, property in personal use; as, a horse on which the tenant may be riding, or an axe with which he is cutting wood. -Co. Litt. 47, a. A horse in a smith's shop to be shoed, or in a common inn, nor cloth in a tailor's house, or corn sent to a mill or market, are not liable to distress, being privileged and protected for the benefit of trade. --3 Black. Com. 8. But although goods of a guest at a public inn are privileged from distress by reason that all men have a right to use it without molestation; yet this exemption was not held to extend to the case of a chariot standing in the coach-house of a livery stable keeper.-1 Black. Rep. 483. But this exemption does not apply to a person dwelling therein, as a tenant rather than a guest.-Bradby, 208, 209.

loom, implements of husbandry, beasts of the plough, and sheep, are also privileged from distress, not only while in actual use, but whilst any other sufficient distress can be found on the premises.(m)

&c.

Furnaces, cauldrons, or other things, fixed to Furnaces, the freehold, or the doors or windows of a house, or the like, cannot be distrained. (n)

custody of the law.

Goods in the custody of the law are not distrain- Goods in the able; therefore, goods distrained for damage feasant cannot be taken for rent, nor goods in a bailiff's hands (o) on an execution, nor goods seized by process at the suit of the king, because they are in the custody of the law.(p)

trainable at commion law

At common law, such things only can be dis- Goods distrained as may be restored to the owner in the same plight as they were in at the time of taking them; and for this reason, sheaves and shocks of corn were not distrainable under the statute 2 W. and M., sess. 1, c. 5, s. 3. (See p. 319.)(g)

on the pre

Generally, whatever goods and chattels the land- Goods found lord finds upon the premises, whether they, in fact, mises. belong to the tenant or a stranger, are distrainable by him for rent; for otherwise a door would be opened to infinite frauds upon the landlord, and the stranger hath his remedy over by action on the

(m) Co. Lit. 47. 4 T. R. 565. 1 Selw. N. P. 643. But this rule holds only in distresses for rent, amerciaments, and the like, but doth not extend to cases where a distress is given in the nature of an execution by any particular statute; as, for poor rates and the like-3 Salk. 136.

(n) Co. Lit. 47, b. Whatever is part of the freehold is exempted from distress; for that which is part of the freehold cannot be severed from it without detriment to the thing itself in the removal: that which is affixed to the freehold is part of the thing demised; those things, therefore, which savour of the realty are not distrainable.-Id.

(0) When a bailiff, by virtue of a sheriff's warrant, on an execution issuing out of any of the courts of law, has taken possession of the goods, the landlord can claim but for one year's rent, and must give due notice to such sheriff of his claim, (see 8 Anne, c. 14,) who thereby becomes responsible for such rent, to be paid out of the proceeds of the sale in the first instance.-See " Notices."

(p) Co. Lit. 47. Park, 120.

(4) By the statute 56 G. III., c. 50, no sheriff or other officer shall sell or carry off from any lands any straw, chaff, or turnips, in any case, nor any hay or other produce, contrary to the covenant or agreement entered into for the benefit of the landlord of the farm; and section 2 provides that the tenant shall give notice to the sheriff of the existence of covenants, and the sheriff to the landlord; and section 3 empowers such sheriff or other officer to dispose of the produce, subject to an agreement to expend it on the land,

Cattle

escaped.

Damage feasant.

case against the tenant, if by the tenant's fault the goods are distrained, so that he cannot render them when called upon.(r) Cattle escaped on the premises may be distrained, but not if the fences are out of repair through the neglect of the tenant of the land distrained for, or notice has been given to the owner, and he suffers them to remain afterwards.(8) But where they escape accidentally they are not distrainable until they have been levant and couchant; but if they escape by default of their owner, they are distrainable the first minute.(t)

Distress damage feasant is the strictest distress that is, and the thing distrained must be taken in the very act; for, if the goods are once off, though on fresh pursuit, the owner of the ground cannot take them.(u)

How a distress is

made.

PRACTICAL DIRECTIONS

FOR MAKING A DISTRESS.

A DISTRESS for rent is made by entering upon the premises, and seizing any piece of furniture or chattels distrainable; saying, at the same time, that you seize that in the name of all the chattels (v) upon the premises, to the value of the rent distrained for, and stating the cause of the distress

(r) 3 Black. Com. 8. But in particular circumstances a court of equity will relieve.-See Fowkes v. Joyce, 3 Lev. 260. Where the landlord consented to sheep being put in the ground of his tenant for the night, and afterwards distrained them, the owner was relieved in equity on the ground of fraud in the landlord.-2 Vern. 131. But it is now the general opinion that it would be held by a court of law that cattle belonging to a drover, being put into a ground with the consent of the occupier to graze only one night in their way to a fair or market, were not liable to the distress of the landlord for rent.-2 Saund. 290, n. 7.

(s) Lutw. 364.

(t) 1 Ld. Raym. 169.

(u) 12 Mod. 661. Damage feasant means the doing damage, or trespassing upon land.

(v) A seizure of part in the name of the whole being as good as seizure of the whole, Dodd v. Morgan, 6 Mod. 215. Some pieces of furniture, or other personal chattel found on the premises, is to be taken hold of; and if the landlord makes the distress himself he is to say, "I distrain this chair (or whatever else it may be) in the name of all the goods and effects on these premises, as a distress for the sum of, &c., rent due to me at, &c., last."

or other per

ised.

particularly; and if the distress be made by virtue of any particular authority, (w) it should be mentioned. A landlord, however, may distrain, not only upon the premises demised, but also the cattle or stock of his tenant depasturing on any common appendant or appurtenant, or any ways belonging to the same.(x) The distress must not be made on a highway. It must be made either by the land- By landlord lord in person, or by some person deputed by him son authorby warrant. After seizure an inventory should be taken of the distrainable goods upon the premises; copy it, and write at the foot of the copy (or annex) a notice, stating the cause of the distress, and that Notice of unless the rent be paid within five days, the goods shall be appraised and sold; and leave this copy at the chief mansion house, or other most notorious place on the premises, (y) or serve it personally on the tenant. If you remove the goods, state in your notice the place to which you have removed them.

distress.

day time.

The distress must be made in the day time. It Must be may be made at any time during the term for which made in the the premises are demised, or within six months after the determination thereof, provided the landlord's title and the tenant's possession continue at the time of the distress. (2) The landlord cannot break open the outer door of a house to make a distress, nor can he break open or throw down gates or inclosures for that purpose. But if he have entered the house, he may, if necessary, break open an inner door, &c.

The landlord may either remove the goods im- Removal of mediately, or he may allow them to remain on the the goods. premises for five days, inclusive of the day of the seizure, and reasonable time afterwards, leaving a person there in the care and possession of them, to

(w) If made by a broker, thus, "I distrain, &c., as a distress for the sum of, &c., rent due to the landlord of these premises at, &c., last, by virtue of an authority from the said (landlord) to me given for that purpose."

(x) 11 G. II, c. 19, s. 8.

(y) 2 W. & M., sess. 1, c. 5, s. 2.

(z) 8 A., c. 14, secs. 6, 7; and see 3 & 4 W. IV., c. 42, secs. 37, 38.