tion fhall never be exerted, where fuch exertion must occafion ftrife and bodily contention, or endanger the peace of society. If, for instance, my horfe is taken away, and I find him in a common, a fair, or a public inn, I may lawfully feife him to my own use: but I cannot justify breaking open a private ftable, or entering on the grounds of a third person, to take him, except he be feloniously stolen f; but must have recourse to an action at law. III. As recaption is a remedy given to the party himself, for an injury to his perfonal property, fo, thirdly, a remedy of the fame kind for injuries to real property, is by entry on lands and tenements, when another perfon without any right has taken poffeffion thereof. This depends in fome measure on like reasons with the former; and, like that too, must be peaceable and without force. There is fome nicety required to define and diftinguish the cafes, in which fuch entry is lawful or otherwise it will therefore be more fully confidered in a subsequent chapter; being only mentioned in this place for the fake of regularity and order, IV. A FOURTH fpecies of remedy by the mere act of the party injured, is the abatement, or removal, of nusances. What nufances are, and their several species, we shall find a more proper place to inquire under fome of the subsequent divifions, At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nufance ; and fuch nufance may be abated, that is, taken away or removed, by the party aggrieved thereby, fo as he commits no riot in the doing of it, If a house or wall is erected so near to mine that it ftops my antient lights, which is a private nufance, I may enter my neighbour's land, and peaceably pull it down. Or if a new gate be erected across the pub. lic highway, which is a common nufance, any of the king's fubjects paffing that way may cut it down, and deftroy it. 2 Roll. Rep. 55, 56. 208. 2 Roll. Abr. 565, 566. 5 Rep. 101.9 Rep. 55. A 3 h Salk. 459. And And the reason why the law allows this private and fummary method of doing one's felf justice, is because injuries of this kind, which obftruct or annoy fuch things as are of daily con venience and use, require an immediate remedy; and cannot wait for the flow progrefs of the ordinary forms of justice. V. A FIFTH cafe, in which the law allows a man to be his own avenger, or to minifter redress to himself, is that of dif treining cattle or goods for nonpayment of rent, or other duties; or, diftreining another's cattle damage-feafant, that is, doing damage, or trefpaffing, upon his land. The former intended for the benefit of landlords, to prevent tenants from fecreting or withdrawing their effects to his prejudice ; the latter arifing from the neceffity of the thing itself, as it might otherwife be impoffible at a future time to afcertain, whofe cattle they were that committed the trefpafs or damage. As the law of diftreffes is a point of great use and confequence, I fhall confider it with fome minutenefs: by inquiring, firft, for what injuries a diftrefs may be taken; fecondly, what things may be diftreined; and, thirdly, the manner of taking, difpofing of, and avoiding diftreffes, 1. AND, first, it is neceffary to premife, that a distress), diftrictio, is the taking of a perfonal chattel out of the poffeffion of the wrongdoer into the cuftody of the party injured, to procure a fatisfaction for the wrong committed. 1. The most usual injury, for which a distress may be taken, is that of nonpayment of rent. It was obferved in a former volume, that diftreffes were incident by the common law to every rentfervice, and by particular refervation to rent-charges alfo i but not to rent-feck, till the ftatute 4 Geo. II. c. 28. extended the fame remedy to all rents alike, and thereby in effect abolished all material diftinction between them. that now we may lay it down as an univerfal principle, So j The thing itself taken by this pro- law books very frequently called a distress. cefs, as well as the procefs itfelt, is in our * Book II. ch. 3: that that a distress may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do fuit to the lord's court', or other certain perfonal service", the lord may diftrein, of common right. 3. For amercements in a court-leet a distress may be had of common right; but not for amercements in a court-baron, without a special prescription to warrant it ". 4. Another injury, for which diftreffes may be taken, is where a man finds beasts of a ftranger wandering in his grounds, damage-feafant; that is, doing him hurt or damage, by treading down his grafs, or the like; in which cafe the owner of the foil may diftrein them, till fatisfaction be made him for the injury he has thereby fuftained. 5. Lastly, for several duties and penalties inflicted by special acts of parliament, (as for affeffments made by commiffioners of fewers, or for the relief of the poor P) remedy by diftrefs and fale is given; for the particulars of which we must have recourse to the ftatutes themfelves: remarking only that fuch diftreffes are partly analogous to the antient diftrefs at common law, as being repleviable and the like; but more resembling the common law procefs of execution, by feifing and felling the goods of the debtor under a writ of fieri facias, of which hereafter. 2. SECONDLY; as to the things which may be diftreined, or taken in diftrefs, we may lay it down as a general rule, that all chattels perfonal are liable to be distreined, unless particularly protected or exempted. Instead therefore of mentioning what things are diftreinable, it will be easier to recount those which are not fo, with the reason of their particular exemptions'. And, 1. As every thing which is diftreined is prefumed to be the property of the wrongdoer, it will follow that fuch things, wherein no man can have an abfolute and valuable property (as dogs, cats, rabbets, and 1 Bro. Abr. tit. diftrefs. 15. m Co. Litt. 46, A Brownl. 36. • Stat. 7 Ann, c. 10. P Stat. 43 Eliz. c. 2. r Co. Litt. 47. A 4 all all animals ferae naturae) cannot be diftreined. Yet if deer (which are ferae naturae) are kept in a private inclofure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandize, that they may be diftreined for rent 3, 2. Whatever is in the personal ufe or occupation of any man, is for the time privileged and protected from any diftrefs; as an ax with which a man is cutting wood, or a horfe while a man is riding him. But horfes, drawing a cart, may (cart and all) be diftreined for rent-arrere; and also if a horse, though a man be riding him, be taken damage-feafant, or trefpaffing in another's grounds, the horse (notwithstanding his rider) may be distreined and led away to the pound'. 3. Valuable things in the way of trade shall not be liable to diftrefs, As a horfe standing in a fmith's fhop to be fhoed, or in a common inn; or cloth at a taylor's house; or corn fent to a mill, or a market. For all thefe are protected and privileged for the benefit of trade; and are fuppofed in common prefumption not to belong to the owner of the houfe, but to his cuftomers. But, gene rally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are diftreinable by him for rent: for otherwise a door would be open to infinite frauds upon the landlord; and the ftranger has his remedy over by action on the cafe against the tenant, if by the tenant's default the chattels are diftreined, so that he cannot render them when called upon, With regard to a stranger's beasts which are found on the tenant's land, the following diftinctions are however taken. If they are put in by confent of the owner of the beafts, they are diftreinable immediately afterwards for rent-arrere by the landlord. So alfo if the ftranger's cattle break the fences, and commit a trespass by coming on the land, they are diftreinable immediately by the leffor 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 s Davis v. Powel. C. B. Hil. 11 Geo. II. I Sid. 440. v Cro. Eliz. 549. fufficiently fenced so as to keep out cattle, the landlord cannot diftrein them, till they have been levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have laid down and rofe up to feed; which in general is held to be one night at least: and then the law prefumes, that the owner may have notice whether his cattle have strayed, and it is his own negligence not to have taken them away. Yet, if the leffor 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 the owner; in this cafe, though the cattle may have been levant and couchant, yet they are not diftreinable for rent, till actual notice is given to the owner that they are there, and he neglects to remove them": for the law will not fuffer the landlord to take advantage of his own or his tenant's wrong. 4. There are alfo other things privileged by the antient common law; as a man's tools and utensils of his trade: the ax of a carpenter, the books of a scholar, and the like: which are faid to be privileged for the fake of the public, because the taking them away would disable the owner from serving the commonwealth in his station. So, beasts of the plough, averia carucae, and fheep, are privileged from distresses at common law *; while dead goods, or other fort of beafts, which Bracton calls catalla otiofa, may be diftreined. But, as beafts of the plough may be taken in execution for debt, fo they may be for diftreffes by ftatute, which partake of the nature of executions Y. And perhaps the true reason, why thefe 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 it's non-payment: and therefore, to deprive the party of the inftruments and means of paying it, would counteract the very end of the diftrefs. 5. Nothing shall be diftreined for rent, which may not be rendered again in as good plight as when it was diftreined: for which reason w Lutw. 1580. x Stat. 51 Hen, III. ft. 4. diftrictione fcaccarii, y 4 Burr. 589. z Ibid. 588. |