No. XX. 2 W. & M. sess. 1. c. 5. Corn loose, &c. maybe detained and sold. Treble dama ges for poundbreach. with the sheriff or under-sheriff of the county, or with the constable of the hundred, parish, or place, (1) where such distress shall be taken (who are hereby required to be aiding and assisting therein), cause the goods and chattels so distrained to be appraised (2) by two sworn appraisers (whom such sheriff, under-sheriff, or constable, are hereby empowered to swear) to appraise the same truly, according to the best of their understandings; and after such appraisement shall and may lawfully sell (3) the goods and chattels so distrained for the best price can be gotten for the same, towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus (if any) in the hands of the said sheriff, under-sheriff, or constable, for the owner's use. III. And whereas no sheaves or cocks of corn loose or in the straw, or hay in any barn, or granary, or on any hovel, slack, or rick, can by 'the law be distrained, or otherwise secured for rent, whereby landlords are oftentimes cousened and deceived by their tenants, who sell their corn, grain, and hay to strangers, and remove the same from the premises chargeable with such rent, and thereby avoid the payment of the same; be it further enacted by the authority aforesaid, That for remedying the said practice and deceit, it shall and may, from and after the said first day of June, be lawful to and for any person or persons having rent arrear and due upon any such demise, lease, or contract, as aforesaid, to seize and secure any sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack, or rick, or otherwise upon any part of the land or ground charged with such rent, and to lock up or detain the same in the place where the same shall be found, for or in the nature of a distress, until the same shall be replevied upon such security to be given as aforesaid; and in default of replevying the same as aforesaid, within the time aforesaid, to sell the same after such appraisement thereof to be made; so as nevertheless such corn, grain, or hay so distrained as aforesaid, be not removed by the person or persons distraining, to the damage of the owner thereof, out of the place where the same shall be found, and seized, but be kept there (as impounded) until the same shall be replevied, or sold in default of replevying the same within the time aforesaid. (4) IV. And be it further enacted by the authority aforesaid, That upon any pound-breach or rescous of goods or chattels distrained for rent, the person or persons grieved thereby shall, in a special action upon the case (5) for the wrong thereby sustained, recover his and their treble damages and costs of suit against the offender or offenders in any such rescous or pound-breach, any or either of them, or against the owners of the goods distrained, in case the same be afterwards found to have come to his use or possession. (6) days, and that three days was an unreasonable time; see st. 11 Geo. II. c. 19, post., sect. 10, and Winterbourne v. Morgan, 11 E. 395. (1) Where the premises lay partly in the hundred of Andover, and partly in the hundred of Kinalsey, and the goods were all impounded in Kinalsey, the constable of Kinalsey was the proper officer to administer the oath for the appraisement of the whole distress; Walter v. Rumbal, 1 Ld. Raym. 53. Q. If goods taken in one parish can be appraised by a constable of a different parish in the same hundred; semble not; Wallace v. King, 1 H. B. 13. (2) The goods, although appraised, may be replevied after the five days, unless actually sold; Jacob v. King, 1 Marsh. 135. (3) Semble this provision does not authorize distraining things which were previously exempt; Gorton v. Falkner, 4 T. R. 565. The money produced by the sale vests in the first instance in the landlord, therefore a sub-tenant, whose goods are distrained and sold by the original landlord, cannot maintain assumpsit against the immediate tenant for money paid to his use; Moore v. Pyrke, 11 E. 52. (4) If standing corn is sold under an execution, and afterwards cut by the vendee, it cannot be distrained before it is fit to be carried; Gilb. Distr. (3d Ed.) 50. Secus, where it is permitted to remain after severance; semble Parslow v. Cripps, Com. Rep. 203; but N. B., the report only purports to contain the argument of counsel, without stating any decision. (5) It is no answer to such action that the rent, &c. was tendered after the impounding; Firth v. Purvis, 5 T. R. 432. (6) The Irish statute 8 Geo. I. c. 2. contains some salutary provisions, giving a summary jurisdiction to justices of peace in case of rescue of a distress. V. Provided always, and be it further enacted, That in case any such distress and sale as aforesaid, shall be made by virtue or colour of this present Act for rent pretended to be arrear and due, where in truth no rent is arrear or due to the person or persons distraining, or to him or them in whose name or names, or right, such distress shall be taken as aforesaid, that then the owner of such goods or chattels distrained and sold as aforesaid, his executors or administrators, shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double of the value of the goods or chattels so distrained and sold, together with full costs of suit. [ No. XXI.] 8 Anne, c. 14.—An Act for the better Security of Rents, and to prevent Frauds committed by Tenants. No. XX. 2 W. & M. sess. 1. c. 5. Double damaagainst wrongges and costs ful distrainer. 8 Anne, c. 14. After the first of May, 1710, no goods, &c. shall be taken in execution, FOR the more easy and effectual recovery of rents reserved on leases for life or lives, term of years, at will or otherwise; Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in Parliament assembled, and by the authority of the same, That from and after the first day of May, which shall be in the year of our Lord One thousand seven &c. unless the hundred and ten, no goods or chattels whatsoever, lying or being in or party before upon any messuage, lands, or tenements, which are or shall be leased removal of the for life or lives, term of years, at will or otherwise, shall be liable to be goods, &c. pay taken by virtue of any execution on any pretence whatsoever, unless the the landlord party at whose suit the said execution is sued out, (1) shall before the the rent due. removal (2) of such goods from off the said premises, by virtue of such execution or extent, pay to the landlord (3) of the said premises or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time (4) of the taking such goods or chattels by virtue of such execution; Provided the said arrears of rent do not amount to more than one year's rent; (5) and in case the said arrears shall exceed one year's rent, then the said party, at whose suit such execution is sued out, paying the said landlord or his bailiff, one year's rent, may proceed to execute his judgment, as he might have done before the making of this Act; and the sheriff or other officer (6) is hereby empowered and required to levy and pay to the plaintiff as well the money so paid for rent, as the execution money. (7) (1) The Act extends to an execution at the suit of a defendant for costs, notwithstanding the direction at the end of the section that the sheriff shall pay the plaintiff as well the rent as the execution money; Henchett v. Kimpson, 2 Wils. 140. (2) A bill of sale ruled to be a removal; West v. Hedges, Barnes, 211. (3) The statute only extends to the immediate landlord, not to a ground landlord; Master Bennet's case, 2 Str. 787. An executor or administrator is entitled to the benefit of the statute, as to arrears accrued in the lifetime of the deceased; Palgrave v. Windham, 1 Str. 212. (4) The Act docs not extend to rent which accrues during the continuance of the sheriff in possession; Hoskins v. Knight, 1 M. and S. 245. And a sheriff taking corn in the blade under a fieri facias, and selling it before rent due, is not liable to account to the landlord of the defendant, under the statute 8 Anne, for rent accruing subsequently to the levy and sale, although he has given notice, and though the corn be not removed from the premises until long afterwards, when a considerable proportion of rent has become due, the landlord's remedy in such case is by distress; Gwillim v. Barker, 1 Price, 274. And the landlord of premises on which goods have been scized under an extent in aid, is not entitled, under the 8 Anne, to call on the sheriff to pay twelve months' rent, due before the, teste of the writ; Rex v. Decaux, 2 Price, 17. (5) Only one year's rent is to be paid, although there be two executions; semble Dod v. Saxby, 2 Str. 1024. (6) The bailiff of a liberty is subject to the provisions of the Act; Palgrave v. Windham, i Str. 212. (7) In order to render the sheriff responsible for non-compliance with the Act, there must be a demand for the rent, before the removal, by the party entitled; and a demand by a person to whom administration is afterwards committed does not operate by relation; Waring v. Dewberry, 2 Str. 97: see Smith v. Russell, 3 Taunt. 400. And semble, that a sheriff is not No. XXI. If any lessee, &c. shall fraudulently carry off goods, &c. the lessor, &c. within five may days after seize such goods, &c. and sell the same as if they had been distrained. Proviso, such lessor, &c. shall not seize any goods, &c. which shall be bona fide sold before. Debt may be tenant for life for rent. II. And be it further enacted by the authority aforesaid, That in case any lessee for life or lives, term of years, at will or otherwise, of any messuages, lands, or tenements, upon the demise whereof any rents are or shall be reserved, or made payable, shall, from and after the said first day of May, fraudulently or clandestinely convey or carry off or from such demised premises, his goods or chattels, with intent to prevent the landlord or lessor, from distraining the same for arrears of such rent so reserved as aforesaid, it shall and may be lawful to and for such lessor or landlord, or any person or persons by him for that purpose lawfully empowered, within the space of five days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels wherever the same shall be found as a distress for the said arrears of such rent; and the same to sell or otherwise dispose of, in such manner, as if the said goods and chattels had actually been distrained by such lessor or landlord, in and upon such demised premises for such arrears of rent; any law, custom, or usage to the contrary in any wise notwithstanding. III. Provided nevertheless, That nothing in this Act contained shall extend, or be construed to extend to empower such lessor or landlord to take or seize any goods or chattels as a distress for arrears of rent, which shall be sold bona fide, and for a valuable consideration, before such seizure made; any thing herein contained to the contrary notwithstanding. IV. And whereas no action of debt lies against a tenant for life or brought against lives, for any arrears of rent, during the continuance of such estate ' for life or lives; Be it enacted by the authority aforesaid, That from and after the said first day of May it shall and may be lawful for any person or persons, having any rent in arrear, or due upon any lease or demise (1) for life or lives, to bring an action or actions of debt for such arrears of rent, in the same manner as they might have done, in case such rent were due and reserved upon a lease for years. Rent in arrear upon a lease for life, &c. expired, may be distrained for after the determination of the lease. V. And it is hereby further enacted and declared by the authority aforesaid, That all distresses hereby empowered to be made as aforesaid, shall be liable to such sales, and in such manner, and the monies arising by such sales to be distributed in like manner, as by an Act made in the second Mary, intituled, of the reign of their late Majesties King William and Queen year "An Act for enabling the Sale of Goods distrained for Rent, in case the Rent be not paid in reasonable Time,” is in that behalf directed and appointed. VI. And whereas tenants pur auter vie, and lessees for years or at 'will, frequently hold over the tenements to them demised, after the ' determination of such leases: And whereas after the determination of such, or any other leases, no distress can by law be made for any arrears of rent that grew due on such respective leases before the determination thereof; it is hereby further enacted by the authority aforesaid, That from and after the said first day of May One thousand seven hundred and ten, it shall and may be lawful for any person or persons, having any rent in arrear, or due upon any lease for life or lives, or for years, or at will, ended or determined, to distrain for such arrears, after the determination of the said respective leases, in the same manner as bound to find out what rent is due to a landlord, and pay it him, under 8 Anne, c. 14, unless the landlord give him notice; Smith v. Russell, 4 Taunt. 400. In case of removal contrary to the Act, the landlord may maintain an action in such action the want of alleging a demand is helped by verdict; Palgrave v. Windham, 1 Str. 212. It is not necessary to state in the declaration, the particulars of the lease: but if they are stated, and there is any variance, it is fatal; Bristow v. Wright, Doug. 665. The court from which the execution issues will also give relief on summary application; West v. Hedges, Barnes, 211; Twells v. Colville, Willes 377; Henchett v. Kimpson, 2 Wils. 140. If the execution is overreached by an Act of bankruptcy and commission, the sheriff, in an action by the assignees, can only avail himself of payment to the landlord, by proving that it was made before notice of the commission issued; Lee v. Lopes, 15 E. 230. (1) This only extends to cases between landlord and tenant. A devisee of an annuity cannot maintain debt against the devisee of the land; Webb v. Jiggs, 4 M. and S. 113. they might have done, if such lease or leases had not been ended or determined. VII. Provided, That such distress be made within the space of six calendar months (1) after the determination of such lease, and during the continuance of such landlord's title or interest, and during the possession of the tenant (2) from whom such arrears became due. No. XXI. 8 Anne, c.14. Distress to be within six months after This Act shall not hinder the Queen, &c. to levy, &c. any the end of the lease, and during the landlord's title and tenant's possession. VIII. Provided always, and it hereby enacted and declared by the authority aforesaid, That nothing in this Act contained shall extend, or be construed to extend, to let, hinder, or prejudice her Majesty, her heirs or successors, in the levying, recovering, or seizing any debts, fines, penalties, or forfeitures, that are or shall be due, payable, or answerable to her Majesty, her heirs or successors; but that it shall and may be lawful for her Majesty, her heirs and successors, to levy, recover, and seize such debts, fines, penalties, and forfeitures, in the same manner as if this Act had never been made; any thing in this Act contained to the contrary thereof in any wise notwithstanding. [No. XXII. ] 4 George II. c. 28.-An Act for the more effectual preventing Frauds committed by Tenants, and for the more easy Recovery of Rents, and Renewal of Leases. FOR securing to lessors and land owners their just rights, and to prevent frauds frequently committed by tenants, Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That in case any tenant or tenants for any term of life, lives or years, or other person or persons, who are or shall come into possession of any lands, tenements, or hereditaments, by, from or under, or by collusion with such tenant or tenants, shall wilfully (3) hold over any lands, tenements or hereditaments, after the determination of such term or terms, and after demand made, and notice in writing (4) given, for delivering the possession thereof, by his or their landlords or lessors, or the person or persons to whom the remainder or reversion of such lands, tenements or hereditaments shall belong, his or their agent (5) or agents thereunto lawfully authorized; then and in such case such person or persons so (6) holding over, shall, for and during the time he, she, and they shall so hold over, or keep the person or persons intitled (7) out of possession of the said lands, tenements, and hereditaments, as aforesaid, pay to the person or persons so kept out of possession, their executors, administrators or (1) The distress may be made during the possession of the executor of the tenant, for the rent accrued in the life of his testator; Braithwaite v. Cooksey, 1 H. B. 465. (2) A distress may be made after the expiration of the six months during the time that the tenant, according to the custom of the country, has the way-going crop on the premises; Bevan v. Delahay, 1 H. B. 5; Lewis v. Harris, n. ibid. (3) A tenant holding over under a fair claim of right is not within the Act, although it be decided eventually that he has no right; Wright v. Smith, 5 Espinasse, 203. (4) The notice to quit, given previous to the expiration of the term, is a sufficient demand; Cutting v. Derby, 2 Bl. 1074; Wilkinson v. Colley, 5 Bur. 2694 and the right to recover thereon is not waved by giving a second notice after the expiration of the first; Messenger v. debts, fines, crown. 4 George II. c. 28. Personsholding over lands, &c. after expiration of leases to pay double the yearly value. 66 Armstrong, 1 T. R. 53. A notice to quit, or I shall insist upon double rent," does not give the tenant an option to continue the possession, paying double rent; Doe dem. Matthews v. Jackson, Doug. 175. (5) A receiver appointed by the Court of Chancery in a suit depending is a sufficient agent to give notice; Wilkinson v. Colley, 5 Bur. 2694. (6) If the notice is given to a woman who afterwards marries, the action for not delivering up possession may be maintained against the husband, without any new demand, and the wife need not be joined; Lake v. Smith, 1 N. R. 174. (7) An administratrix of an executor cannot sustain an action on this Act, although the tenant has attorned to her without taking administration, de donis non, to the first testator; Tingrey v. Brown, 1 B. and P. 310. No. XXII. assigns, at the rate of double the yearly value (1) of the lands, tenements, 4 George II. and hereditaments so detained, for so long time as the same are detained, to be recovered in any of his Majesty's Courts of Record, by action of debt, (2) whereunto the defendant or defendants shall be obliged to give special bail, against the recovering of which said penalty there shall be no relief in equity. (3) c. 28. One half a year's rent in arrear, landlord may reenter, serving a declaration of ejectment. II. And whereas great inconveniences do frequently happen to lessors ' and landlords, in cases of re-entry for nonpayment of rent, by reason of 'the many niceties that attend the re-entries at common law; and forasmuch as when a legal re-entry is made, the landlord or lessor must be at the expense, charge, and delay, of recovering in ejectment, before he 'can obtain the actual possession of the demised premises; and it often ‘happens that after such a re-entry made, the lessee or his assignee, upon one or more bills filed in a court of equity, not only holds out the lessor or landlord by an injunction, from recovering the possession, but likewise, pending the said suit, do run much more in arrear, without giving any security for the rents due, when the said re-entry was 'made, or which shall or do afterwards incur: For remedy whereof, be it enacted by the authority aforesaid, That in all cases between landlord and tenant, from and after the twenty-fourth day of June One thousand seven hundred and thirty-one, as often as it shall happen that one-half year's rent shall be in arrear, and the landlord or lessor, to whom the same is due, hath right by law to re-enter for the nonpayment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the demised premises, or in case the same cannot be legally served, or no tenant be in actual possession of the premises, then to affix the same upon the door of any demised messuage, or in case such ejectment shall not be for the recovery of any messuage, then upon some notorious place of the lands, tenements or hereditaments, comprised in such declaration in ejectment, and such affixing shall be deemed legal service thereof, which service or affixing such declaration in ejectment, shall stand in the place and stead of a demand and re-entry; and in case of judgment against the casual ejector, or nonsuit for not confessing lease, entry and ouster, it shall be made appear to the court where the said suit is depending, by affidavit, (4) or be proved upon the trial, in case the defendant appears, that half a year's rent was due before the said declaration was served, and that no sufficient distress (5) was to be found (1) For the distinction between this Act and 11 Geo. II. c. 19. subjecting the tenant giving notice to quit to double rent, see 3 Burr. 2698. (2) One tenant in common may maintain this action against the defendant, who, after regular notice to quit his moiety, had turned off the plaintiff's sheep; Cutting v. Derby, 2 Bl. Rep. 1175. It by no means follows, that the action could be maintained in such a case against a defendant for merely retaining possession; which (being himself tenant in common in respect of the other moiety) he is intitled to do. In an action for double value, and also for use and occupation, the defendant paid the single rent into Court upon the latter count, and the plaintiff by taking it out was held not to wave his right under the former, so as to be subject to nonsuit thereon, but that the case ought to have gone to the jury; Ryal v. Rich, 10 E. 48. The action for double value may be brought after a judgment in ejectment, for the holding over down to the time of recovering the possession; Soulsby v. Nevin, 9 E. 310. (3) This section is copied, with some slight 1 variations, from the Irish Statute 11 Anne, c. 2. sec. 1. See 1 Gabbett, 468. (4) In Doe v. Lewis, 1 Burr. 614, the lessor having recovered in a former ejectment under this Act, the lessee, after a lapse of several years, brought a second ejectment on the title of his lease; and the proceedings in the first ejectment being in all other respects confessedly regular, he insisted that he was intitled to recover, because no affidavit was produced which had been made in conformity to the Act and the Court held that it was not incumbent on the landlord to prove the regularity of all the circumstances upon which his judgment and execution were founded; but that the judgment must be taken to have been a right, regular and good one, as nothing appeared to the contrary. : (5) Where the rent became due on the 25th of March, the demise was laid on the 2d of May, it appeared that there was no sufficient distress on some day in May (the particular day being left uncertain) and the declaration served on the 6th of June, no evidence being given by the defendant to repel the inference of there being no sufficient distress, by shewing |