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 (4). So alfo if the stranger's cattle break the fences, and commit a trefpafs 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 beafts for the wrong committed through his negligence". But if the lands were not fufficiently fenced fo as to keep out cattle, the landlord can- [ 9 ] not 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 rose 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 w: for the law will not fuffer the landlord to take advantage of his own or his tenant's wrong. 4. There are also other things privileged by the antient common law; as a man's tools and utenfils 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 w Lutw. 1580. v Cro. Eliz. 549. (4) As if horses or cattle are sent to agift, they may be immediately diftrained by the landlord for rent in arrear, and the owner muft feek his remedy by action against the farmer: the principle of this law extends to public livery ftables, to which, if horfes and carriages are fent to ftand, it is determined that they are diftrainable by the landlord, as if they were upon any other farm. Burr. 1498. the the taking them away would difable the owner from ferving the commonwealth in his ftation (5). So, beafts of the plough, averia carucae, and fheep, are privileged from diftresses at common law ; while dead goods, or other fort of beasts, which Bracton calls catalla otiofa, may be diftreined. But, as beasts 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. And perhaps the true reafon, why thefe and the tools of a man's trade were privileged at the common law, was because the diftrefs 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 [19] milk, fruit, and the like, cannot be distreined; a distress at common law being only in the nature of a pledge or fecurity, * Stat. 51 Hen. III. ft. 4. diftrictione fcaccarii. (5) But utenfils and implements of trade may be distrained where they are not in actual ufe, and where there is not fufficient property befides upon the premifes to fatisfy the demand of the landlord. 4 T. R. 565. II Geo. 1 in Geo. II. c. 19. empowered landlords to diftrein corn, LET us next confider, thirdly, how diftreffes may be taken, difpofed of, or avoided. And, first, I must premise, that the law of diftreffes is greatly altered within a few years laft paft. Formerly they were looked upon in no other light than as a mere pledge or fecurity, for payment of rent or other duties, or fatisfaction for damage done. And fo the law ftill continues with regard to diftreffes of beasts taken damage-feafant, and for other causes, not altered by act of parliament; over which the diftreinor has no other power than to retain them till fatisfaction is made. But diftreffes for rent-arrere being found by the legislature to be the shortest and moft effectual method of compelling the payment of fuch rent, many beneficial laws for this purpose have been made in the prefent century; which have much altered the common law, as laid down in our antient writers. In pointing out therefore the methods of diftreining, I fhall in general fuppofe the diftrefs to be made for rent; and remark, where neceffary, the differences between such distress, and one taken for other causes. In the first place then, all distresses must be made by day, " ] unless in the cafe of damage-feafant; an exception being there allowed, left the beasts should escape before they are taken. And, when a perfon intends to make a distress, he muft, by himself, or his bailiff, enter on the demised premises; formerly during the continuance of the leafe, but now, if the tenant holds over, the landlord may diftrein within fix months after the determination of the leafe; provided his own title or intereft, as well as the tenant's poffeffion, continue at the time of the diftrefs. If the leffor does not find fufficient diftrefs on the premises, formerly he could refort no where else; and a Co. Litt. 142. II b Stat. 8 Ann. c. 14. therefore therefore tenants, who were knavish, made a practice to convey away their goods and stock fraudulently from the house or lands demifed, in order to cheat their landlords. But now the landlord may diftrein any goods of his tenant, carried off the premises clandeftinely, wherever he finds them within thirty days after, unless they have been bona fide fold for a valuable confideration: and all perfons privy to, or affifting in, fuch fraudulent conveyance, forfeit double the value to the landlord. The landlord may also distrein the beasts of his tenant, feeding upon any commons or waftes, appendant or appurtenant to the demifed premifes. The landlord might not formerly break open a houfe, to make a diftrefs, for that is a breach of the peace. But when he was in the house it was held that he might break open an inner door; and now he may, by the affillance of the peace-officer of the parish, break open in the day-time any place, whither the goods have been fraudulently removed and locked up to prevent a diftrefs; oath being first made, in cafe it be a dwelling-house, of a reasonable ground to fufpect that fuch goods are concealed therein. WHERE a man is entitled to diftrein for an entire duty, he ought to diftrein for the whole at once; and not for part at one time, and part at another '. But if he diftreins for the whole, and there is not fufficient on the premifes, or he hap[12] pens to miftake in the value of the thing diftreined, and fo takes an infufficient diftrefs, he may take a fecond diftrefs to complete his remedy s. DISTRESSES must be proportioned to the thing diftreined for. By the ftatute of Marlbridge, 52 Hen.III. c. 4. if any man takes a great or unreasonable diftrefs, for rent-arrere, he fhall be heavily amerced for the fame. As if the landlord diftreins two oxen for twelvepence rent; the taking of both is an unreafonable diftrefs; but, if there were no other diftrefs nearer the Stat. 8 Ann. c. 14. 11Geo. II. c. 19. d Co. Litt. 161. Comberb. 17. e Stat. 11 Geo. II. c. 19. f 2 Lutav. 1532. value to be found, he might reafonably have diftreined one of them; but for homage, fealty, or fuit and fervice, as also for parliamentary wages, it is faid that no diftrefs can be exceffivei. For as thefe diftreffes cannot be fold, the owner, upon making fatisfaction, may have his chattels again. The remedy for exceffive diftreffes 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 lawj. WHEN the diftrefs is thus taken, the next confideration is the difpofal of it. For which purpose the things diftreined muft in the first place be carried to fome pound, and there impounded by the taker. But, in their way thither, they may be refcued by the owner, in cafe the diftress was taken without caufe, or contrary to law: as if no rent be due; if they were taken upon the highway, or the like; in thefe cafes the tenant may lawfully make refcue *. But if they be once impounded, even though taken without any caufe, the owner may not break the pound and take them out; for they are then in the cuftody of the law'. A POUND (parcus, which fignifies any inclofure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the ftatute 1 & 2 P. & 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 fame fhire; and within [ 13 ] 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 diftrefs. And by ftatute 11 Geo. II. c. 19. which was made for the benefit of landlords, any perfon diftreining for rent may turn any part of the premises, upon which a diftrefs is taken, into a pound, pro hac vice, for fecuring of such distress. If a live diftrefs, of animals, be impounded in a common pound-overt, the owner must take |