"tices of the peace of the fame county, refiding near "the place where fuch goods and chattels are remov"ed, or near the place where the fame were found, not "being interested in the lands or tenements whence fuch "goods were removed, who may fummon the parties con"cerned, examine the fact and all proper witneffes upon "oath, or affirmation, and in a fummary way determine whe"ther fuch perfon be guilty of the offence, and to in"quire into the value of the goods and chattels fo fraudu"lently carried off or concealed, and upon full proof of the "offence by order under their hands and feals, fhall ad66 judge the offender to pay double the value of the faid 66 goods and chattels to fuch landlord or landlords, his, or "her bailiff, fervant or agent, at fuch time as the faid "juftices fhall appoint, and in cafe the offender, having "notice of fuch order, fhall refign or neglect fo to do, << may and fhall by warrant under their hands and feals "levy the fame by diftrefs and fale of the goods and chat"tels of the offender, and for want of fuch diftrefs may "commit the offender to the house of correction, there to "be kept to hard labour for fix months, unlefs the money "fo ordered fhall be fooner paid. may appeal. 9. "PROVIDED ALSO, That any perfon may appeal to the Party aggrieved "next General or Quarter Seffions for the fame county, "who fhall hear and determine fuch appeal, and give fuch "cofts to either party as they fhall think reasonable, whofe "decermination therein fhall be final. 10. "PROVIDED ALSO, That where the party appealing "shall enter into a recognizance with one or two fufficient "furety or fureties, in double the fum fo ordered to be "paid with condition to appear at fuch General or Quarter Seffions, the order of the faid two jufticcs fhall not "be executed against him in the mean time. houfe, 11. By 11 Geo. 2. c. 19. f. 7. "It is further enacted, "That where any goods or chattels fraudulently or clan"deftinely conveyed or carried away by any tenant or "leffee his or her fervant or other perfon aiding or affifting "therein, fhall be put, placed, or kept, in any "barn, ftable, out-houfe, yard, clofe, or place locked up, "faftened or otherwife fecured, fo to prevent fuch goods 66 or chattels from being feized and taken as a diftrefs for arrears of rent; it fhall and may be lawful for the land"lord or leffor his or her fteward, bailiff, receiver, or other 66 "perfon Where there is a recognisance the order shall not be executed until the appeal be determined. A landlord having a right to break open houfes, &c. to distrain may feize goods fraudulently fecured herein. Landlords may diftrain when the demife is not by deed. (4) Actions for ufe and occupa tion cannot be maintained in the Court of Confcience in London. Dougl, 244. perfon empowered to take and seize, as a distress for rent, fuch goods and chattels (first calling to his or her affiftance, the confiable, headborough, borfholder, or "other peace-officer of the hundred, borough, parish, dis❝trict, or place where the fame fhall be fufpected to be "concealed, who are hereby required to aid and affift "therein, and in case of a dwelling houfe, oath being also "firit made before fome juftice of the peace of a reafon"able ground to fufpet that fuch goods or chattels are "therein) in the day-time to break open and enter into "fuch houfe, barn, ftable, out-houfe, yard, clofe, and place; and to take and feize fuch goods and chattels for "the faid arrears of rent, as he or he might have done "by virtue of this or any former act if fuch goods and "chattels had been in any open field or place." 12. By 11 Geo. 2. c. 19. f. 14. "To obviate dif"ficulties that may occur when the demises are not by deed, it fhall and may be lawful to and for the landlord "where the agreement is not by deed to recover a rea"fonable fatisfaction for the lands, tenements or here"ditaments, held or occupied by the defendant or defen"dants, in an action on the cafe for the ufe and occupation (a) of what was fo held or enjoyed and if in evidence on the trial of fuch action any parol demife, or any agreement (not being by deed) whereon a certain rent "was referved, fhall appear, the plaintiff in fuch action "shall not therefore be nonfuited, but make use thereof as "an evidence of the quantum of the damages to be reco"vered." 13. The Lord of a manor may diftrain for rent, service, or an amerciament in his leet, or for damage feafant; a commoner, or a tenant in fufferance may diftrain the cattle of a ftranger damage feafant; and fo may any perfon, claiming a rent either by prefcription or grant, for rent arrear. 14. By the ftatute of ufes, the perfon to whose use any other man is enfeoffed of lands and tenements may dif train. 15. If fheep are delivered to a fingle woman to dung her land and the marries, and the hufband commands the owner to take the fheep off the land, who refufes, the hufband may diftrain them damage-feafant. 16. If a perfon poffeffed of two hundred acres of open moor land fells, fifty acres thereof, each party ought to in clofe close against the other, and if the cattle of one go into the land of the other, they may be diftrained doing mischief. 17. If a perfon make a gift in tail to another, referving fealty and a certain rent; and afterwards grant away the fealty, referving the rent and reversion to himself; in this cafe he may diftrain for the rent; for the grant of the fealty is void, as it cannot be reserved from the reverfion. 18. Also if a rent be affigned to make a partition or an affignment of dower equal, he or she to whom the rent is affigned may distrain for the fame. Lit. fett. 214. Co. Lit. 1424 19. If a man feifed in fee make a gift in tail or a leafe for life, years, or at will, faving the reverfion to himfelf, with a refervation of rent or other fervices; the law gives the donee or leffor, without any exprefs provifion, remedy for fuch rent or fervices, by diftrefs; but if the donor or leffor reserve not the reverfion, he cannot diftrain of common Co. Lit. 47right, but he may referve to himself a power of diftraining, s Co. 3. or the refervation may be good to bind the leffee by way of 2 Saund. 303. contract for the performance whereof the leffee fhall have an action of debt. 20. If a termor grant or affign over all his term, réndering rent, he cannot diftrain for it: So, alfo, if a man feifed in fee, or for life, of a rent charge, after arrears incur, grant over the rent to another, he cannot diftiain for thefe arrears, because they are by the grant divided from the freehold of the rent. 21. A fheriff may diftrain the goods of any man at any place within his county in another man's houfe or ground as well as the owner's. 22. A bailiff, where a lawful tender of rent has been refused, may not diftrain without the command of the landlord; nor will fuch a distress be justifiable if the tenant can support the tender. 23. A mortgagee, after giving notice of the mortgage, to the tenant in poffeffion under a leafe prior to the mortgage is intitled to the rent in arrear at the time of the notice as well as to what accrues afterwards, and he may diftrain for it after fuch notice. 2 Lev. Po. Co. Lit. 292. 375. 4 Co. 50. Vaugh. 40. 1 Roll. Abr. 672. Mofs v. Gallimore, Mich. 20 Geo. 3. Dougl. 279. Wright, Hilary, 21 Geo. 3. Dougl. 624. 24. On a grant of a fee farm rent " without any deduc- Bradbury v. "tion, defalcation or abatement for or in any refpect "whatsoever," the grantee is intitled to receive the full rent without deducting the land tax; but he cannot diftrain for a fet farm rent, unless the cafe is brought within the statute of 4 Geo, 2. c. 28. f. §. (z) Vide ante, Ch. Buckley v. 600. 25. By the statute 4 Geo. 2. c. 28. "All and every "perfon or perfons, bodies politic and corporate, fhall "and may have the like remedy by distress, and by im"pounding the fame, as are given for other rents by the "faid ftatute (a). 26. “AND ALSO in cafes of rents feck, rents of afsize and "chief rents, which have been duly answered or paid for "the fpace of three years within the fpace of twenty years "before the first day of the then feffion of parliament, or "fhall be hereafter enacted, AND ALSO in cafes of rent re"ferved upon leafe." 27. If a husband leafe his wife's land, and the wife. dies without having had issue, the husband cannot distrain, because the reversion goes to her heir. 28. If a trader, after committing an act of bankruptcy, take a house, and agree to pay half a year's rent in advance, 2 Terim Rep. where by the cuftom of the country half a year's rent becomes due on the day on which the tenant enters; THE LANDLORD, after an affignment under the commiffion and before the year expires, may diftrain the goods on the premiffes for half a year's rent; or if he buy the tenant's goods at a fale under the commiffion, he may retain the amount of the half year's rent. II. Of what Things a Diftrefs may be taken. 1.DISTRESSES may be made either for cattle, trefpaffing and doing damage, or for non-payment of rent, or other duties. 2. Diftreffes for rent must be for rent in arrear; and therefore it may not be made on the fame day the rent becomes due; for, if the rent be paid at any time of that day, while the man can fee to count the money, the payment is good. 3. A diftrefs cannot be made after tender of pay ment; for, if the landlord come to diftrain the goods of his tenant for rent behind, the tenant may, before the diftrefs, tender the arrears upon the land; and although the landlord have diftrained, if the tenant before the impounding thereof tender the arrears, the landlord ought to detain the distress, and if he do not, the detainer is unlawful; but if the thing diftrained be impounded, the tenant cannot take it out of the pound, although the tender be refufed, or the diftrefs made without caufe; but he must replevy; for after impounding it, it is in the cuftody of the law. 4. Diftrefs 4. Distress for rent must be of a thing whereof a valuable Co. Lit. 47. property is in fomebody, and therefore dogs, bucks, does, conies and the like, that are fera naturæ cannot be diftrained. 5. Things fixed to the freehold as part of the freehold, Fixtures cannot as furnaces, cauldrons, doors, windows, cannot be dif- be distrained. trained: But if they are thofe kind of fixtures, which, in equity, the tenant would be permitted to take away, quere, if they may not be distrained. be diftrain ed for rent. 6. By the ftatute 2 Will. 3. c. 5. "Perfons having Corn or hay cut "rent arrear on any demife, leafe, or contract, may feize may "and fecure any fheaves, or cocks of corn, or corn loom, "or in the straw, or hay being in any barn or granary, or "upon any hovel, ftack or rick, or otherwife, upon any part of the land charged with rent, and may lock up or dif"train the fame in the place where found, in the nature of "a diftrefs, fo as the fame be not removed to the damage "of the owner, out of the place where found and feized, "but be kept there (as impounded) till replevied or fold." 66 be diftrained. 7. But by 11 Geo. 2. c. 19. f. 8. Every landlord Cattle on "or leffor, his fteward, bailiff, receiver or other perfon commons may "empowered by him, may take and feize as a distress for "arrears of rent, any cattle or stock of his tenant feeding "or depafturing upon any common appendant or appurtenant, or any ways belonging to all or any part of the "premises demised or holden. 8." AND ALSO, may take and seize all forts of corn and "grafs, hops, roots, fruits, pulfe, or other product what"foever, which fhall be growing thereon,, or on any "part of the estate so demised or holden, as diftrefs for arrears of rent; and the fame may cut, gather, make, 65 cure, carry, and lay up, when ripe, in the barn or other proper place on the premises fo demifed or holden; and "in cafe there fhall be no barn or proper place on the pre"mifes fo demifed or holden, then in any other barn or proper place which fuch leffor or landlord, leffors or "landlords, fhall hire or otherwife procure, for that pur"pofe, and as near as may be to the premises-and in a "convenient time to appraife, fell or otherwife difpofe of "the fame, towards fatisfaction for the rent for which "fuch diftrefs fhall have been taken, and of the charges of "fuch distress, appraisement, and fale, in the fame manઠંડ ner as other goods or chattels may be feized, diftrained, "and difpofed af; and the appraisement thereof to be "taken, when cut, gathered, cured, and made, and not "before. 9. " PROVIDED G 2 And corn or other grain be diftrained growing may and taken when lodged in the ripe; and barn on the premifes, or if barn, removed. there be no |