Things while in use. Things sent to tradesmen's shops. At inns. to the distress from the averia carucæ being taken; inz much as they were distrainable under the 43 Eliz. and such like acts of parliament. Hutchins and Chambers, 1 Burr. Rep. 579, 4. What is in the hands and actual use and occupation of another cannot be distrained; for that cannot be a pledge, which another has the actual use of: consequently the distress, which follows the nature of a pledge, cannot be of those things, which cannot be reduced into the actual possession of the person dis training; therefore the axe in a carpenter's hand, the loom of a weaver while in use, or the horse on which a man is riding, cannot be distrained for rent, for they are for that time privi. leged by law. Co. Lit. 47. 1 Rol. Abr. 667. 1 Sid. 440. 4 Term Rep. 569. So horses joined to a cart, with a man upon it, cannot be distrained for rent, though they may for damage-feasant; but the cart and horses may, if the man be not upon the cart. † 1 Vent. 36. 5. Things sent to public places of trade, as cloth in a taylor's shop, yarn in a weaver's, a horse in a smith's, and the like, are not distrainable; for it is of public utility, that the shops of tra ders should be privileged from the lord's distress for his rent; for otherwise no man could supply himself with the necessaries of life without the danger of losing them for another's debt; and therefore the landlord cannot distrain these things for the rent of the shop. Co. Lit. 47. Salk. 249. 3 Burrows 1502, But where, by prescription, a toll is due for repairing a key or harbour, and the same is to be levied by distress, there is no such restriction, for the maintaining of these, is for the public good, and therefore the taking of the anchor, sails, and cable, or a part of the loading, has been adjudged good. 1 Ld. Raym. 385. 2 Strange 1228. So the cattle and goods of a guest are not distrainable at an inn. 3 Black, Com. 8. But the same privilege is not extended to cattle or goods in the custody of a livery-stable keeper; for in a modern case, where the question was, "whether a gentleman's chariot, which "stood in a coach-house belonging to a common livery-stable keeper, was distrainable for rent due to the landlord from "the livery-stable keeper, for this coach-house, which, together "with the stables and yard, he rented of the landlord who "distrained it?" although no judgment was formally pre nounced, the Court considered it as extremely clear, that the chariot was liable to the distress, and that there was not a *Nor for damage feasant; although it was formerly held otherwise in 1 Sider. 440. 442, where it was said that there is a difference if the horse is damage feasant; for in that case it may be distrained, and led to the pound with the rider upon it. But the case of Storey v. Robinson, 6 Ter. Rep. 138. has decided the contrary. ↑ This also is overruled by the case of Storey v. Robinson. shadow of legal claim for an exemption, Francis v. Wyatt, 3 Burrow's Rep. 1498. A clothier put wool to a spinner to spin, and afterwards came with a horse to bring back the yarn ; but the spinner having no weights in his own house to weigh it, the clothier took his horse, and went with the spinner to the house of C, to get the yarn weighed; and C's landlord, while the yarn was weighing, came and distrained the yarn, and the horse of the clothier, for C's rent; but the distress was held unlawful, because if the yarn had been weighed in the spinner's house, it had been unquestionably privileged for the encouragement of trade; so in this case the design of bringing the horse and yarn into the house of C, being only in the way of trade, that design secures them from a distress in the house of C, as much as in the spinner's, as a horse that brings corn to market, and is put into a private yard while the corn is selling, cannot be distrained; because the bringing of the horse there, is in the way of trade, and consequently a public benefit. Cro. Eliz. 549, 596. But generally speaking, whatever goods and chattels the Goods found on landlord finds upon the premises, whether they in fact belong the premises to the tenant or a stranger, are distrainable by him for rent : for belonging to a otherwise a door would be open to infinite frauds upon stranger. landlord; and the stranger has his remedy over, by an action on the the case against the tenant, if by the tenant's default the chattels are distrained, so that he cannot render them when called upon. 3 Black. Com. 8. If a stranger's beasts be upon the lord's land, by escape, or otherwise, though they be not levant and couchant, the lord may distrain them, not only for rent, but for the incidental services of heriots, and amercements, and the like. Year Book, 10 Hen. 7. 21. Co. Lit. 47. But herein the following distinctions have been taken, viz. if the stranger's cattle break the fences, and commit a trespass by coming on the 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. Co. Lit. 47. 1 Ld. Raym. 168. But where they come upon the land by the insufficiency of fences, which the lessor or the tenant, being a lessee, ought to repair; the lessor cannot distrain such beasts until they have been levant and couchant, or unless actual notice has been given to the owner that they are there, and he has afterwards neglect, ed to remove them; for the law will not allow the landlord to take advantage of his own, or his tenant's wrong. 1 Ld. Raym. 168. Lutwich 1580. However in the case of an ancient seignory, the lord may for That is, have been long enough there, to have laid down, and rose up to feed; which in general is held to be one night at least, 3 Black. Com. Gi services distrain the beasts of a stranger which have escaped by default of the tenant, in not repairing his fences, and that (as it should seem) before they are levant and couchant, though the books differ in that particular, because the lord hath nothing to do with repairing the fences, and he hath no remedy but by distress; but the owner may prevent this distress, by making fresh pursuit; for then the cattle remain as it were in his own possession. 1 Ld. Raym. 168. Also if the beasts are turned in upon land, by consent of the owner, they are immediately distrainable for the landlord's rent. Cro. Eliz. 549. And therefore, where a person driving sheep to London to sell, by agreement with the master of an inn, put them into the ground at so much a score for a night; and the landlord seeing them, asked whose they were, and consented to their staying there, but afterwards distrained them for rent due to him from the master of the inn; such distress was adjudged good, be cause his consent was not a waiver of his right to distrain, unless it had been expressly agreed so; for being but a parol agree ment, it could not alter the original contract between the land. lord and the tenant, from which the power of distraining arises; .but as in that case the beasts were going to the London market, and only grazed one night in the land, on their way thither, it was disputed, whether their being on the road to market should privilege them from distress; and it was resolved it should not; because then such privilege must extend through the whole kingdom, which would lay too great a restraint on landlords; and the privilege of trade is local, and only relates to the place where the market is kept, therefore the safest way is to drive cattle to a public inn, and then they are privileged from distresses. 3 Lev. 260. 2 Vent. 50. However the owner of the cattle was afterwards relieved in equity, on the ground of fraud and contrivance in the landlord, to subject the cattle to his distress; and the court of Chancery seemed to think that the grounds used with an inn, ought to have the same privileges as the inn itself; and therefore that the cattle of strangers or travellers, ought not to be there distrain. ed.* 2 Vern. 129. For a rent-charge, the grantee cannot distrain a stranger's beasts until they are levant and couchant. 2 Leon. 7, 8. And where a rent-charge had been in arrear for twenty years, and cattle escaping out of adjoining grounds had been distrained for the arrears, the distress was relieved against, in equity, 2 Vernon 131, * But as this privilege is in derogation of the lessor's right at common law to distrain for rent-arrear, it is apprehended that the exempti ən ought to be confined to such lands only, as are let together with:, and are appurie nant to the inn; and not to such as may for couvenience be taken and oc, Supied independent thereof, 6. Whatever is part of the freehold cannot be distrained; therefore, doors, windows, furnaces, cauldrons, and the like be ing fixed to the freehold, are not distrainable. Co. Lit. 47. So a mill stone is not distrainable though it be removed out of its proper place in order to be picked; because such removal is of necessity, and the stone still continues part of the mill; so it is of a smith's anvil on which he works, for this is accounted part of the forge, though it be not actually fixed by nails to the shop. Bro. Tit. Dist. Pl. 23. So also at common law, sheaves of corn or corn or hay in a Hay and corn, cock or barn, could not be taken as pledges for rent, because all pledges were to be returned, in the same plight and condition, as they were in when taken; and these could not be removed without some damage; yet at common law, corn or hay in a cart might have been distrained together with the cart itself, because there the pledge might have been removed without damage to the owner, and might likewise have been restored in the same condition it was in when taken, the whole being removed with the cart. 1 Jones 197. 1 Roll. Abr. 666, 067. 1 Sid. 440. But this being an encouragement to tenants to withhold their rent, it is provided by 2 Will. 3. č. 5, that it shall be lawful for any person, having rent arrear on any demise, lease, or con tract, to seize and secure any sheaves or cocks of corn, or corn loose or in the straw, or hay lying in any barn or granary, or upon any hovel, stack, or rick, or otherwise upon any part of the land charged with such rent, and to lock up or detain the same, in the place where it shall be found, in the nature of a distress, until the same shall be replevied or sold. s. 3. And by 11 Geo. 2. c. 19, the landlord may take and seize corn, grass, hops, roots, fruits, pulse, or other produce growing, as a distress, and the same may cut, gather,make, cure, and lay up when ripe, in the barns, or other proper place on the premises; and if there shall be no barn or other proper place on the premises, then in any other barn or proper place which he shall procure, so near as may be to the premises; the appraisement whereof shall be taken when cut, gathered, cured, and made, and not before. s. 8. Provided notice of the place where such distress shall be lod ged, shall in one week after the lodging thereof, be given to the tenant, or left at his last abode; and if the tenant shall pay or tender the arrears of rent, and costs of the distress, before such crops shall be cut, the distress shall cease, and the crops be delivered up. s. 9. 7. So upon the principle that the pledge ought to be restored to Money, the owner in the same plight as it was received, it seems that money cannot be distrained, except it be in a bag, for then the knowledge of the bag, especially if it be sealed sufficiently, se Cures the several pieces of money therein, so as the same in Not in the night, unless for damagefeasant. Nor on the day when due. Or after tender, Nor off the premises. Except cattle grazing on a common, dividual pieces may be restored on the redemption of the pledge. For the same reason, it seems that milk, fruit and the like, 8. Neither are goods in the custody of the law distrainable; therefore goods distrained for damage-feasant, cannot be taken for rent, nor goods in a bailiff's hands, on an execution, nor goods seized by process at the suit of the king; because they are in the custody of the law. Co. Lit. 47. Gilbert's Dist. 38. X. When, where, and how a distress may be made. A man cannot distrain for rent * in the night, which, according to the author of the Mirror, is after sunset, and before sunrising, because the tenant hath not thereby notice to make a tender of his rent, which possibly he might do, to prevent the impounding of his cattle. Dr. & Stud. 15. The distress for rent must be for rent in arrear, therefore it may not be made 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. 2 Inst. 107. And it must not be after tender of payment; for if the landlord come to distrain the goods of his tenant for rent, the tenant may, before the distress, tender the arrearages ; and if the distress be afterwards taken, it is illegal: so if the landlord have distrained, and the tenant make a tender of the ar. rearages before the impounding of the distress, the landlord ought to deliver up the distress; and if he does not, the detainer is unlawful. 2 Inst. 107. At common law, no person whatever, except the king, can distrain beasts off his own land, or on the high road. 2 Inst. 131. Mir. c. 2. s. 26. for And in affirmance hereof by stat. Marlbridge, 52 Hen. 3. c. 15, it is enacted, That it shall be lawful for no man, any manner of cause, to take distresses out of his fee, or in the king's highway, or in the common street, but only to the king and his officers, having special authority so to do. But this shall not be taken to make the distress utterly unJawful, so as to give an advantage thereof in bar of the avowry; but it is to be construed only, that if the lord distrain off his fee, or on the highway, the tenant may have an action against him upon this statute. 2 Inst. 131. But now by 11 Geo. 2. c. 19, Every landlord may seize, as a distress for rent, any cattle or stock of their tenants feeding upon * But he may distrain cattle, damage-feasant in the night, otherwise they may be gone before morning. Co. Lit. 142, |