taken off the preceding evening, meant to put on when they got up, and were in the daily habit of wearing: It was objected, (a) that thefe were things that could not be (a) By Mr. taken in distress: LORD KENYON, Chief Justice, faid, that Erskine. this was vexata queftio; and, at common law, fuch things could not be diftrained, because it would be unprofitable to the common-wealth, as they could not, while a pledge, be laboured; but fince the ftatute of William and Mary, had allowed a diftrefs to be fold, the reafon of the common law had vanifhed; and therefore he held them liable to the distress.

29. On a custom, that a tenant may leave his way-going crops in the barns of the farm for a certain time after the leafe is expired, the landlord, although the tenant has quitted the premiffes, may diftrain the corn fo left for rent arrear, after fix months have expired from the determination of the term. }

III. At what Time a Diftrefs fhall be taken.

Beavan v. Delahay, C. B. Eafter, 28 Geo.

3.

767.9 Co. 66.

Latch. 211.

1. A DISTRESS for rent cannot be made in the night, but Co. Lit. 142. one may diftrain cattle, damage feafant, in the night; for otherwise they might be gone before the morning; and, therefore, no diftrefs, except for damage feafant, can be made before fun-rising, and after fun-fet.

Mirror, c. 2.

1. 26.

Dr. & St.

b. 2. c. 9.

Co. Lit. 47.

2. A diftrefs for rent cannot be made upon the day on which the rent became payable, for it cannot be due until the last hour of that day; nor, by the common law, could a distress be made after the leafe or term was expired, but now by 8 Ann. c. 14. it may be made at any time within vide ante p. fix months after.

3. No diftrefs ought to be made on a Sunday, except for damage feafant.

4. If a perfon grant a leafe, and after the expiration of the leafe, there is rent in arrear, no diftrefs can be made for it, except the landlord's title, and the tenant's poffeffion, continue; and if a lease be made till Michaelmas, for one year, rendering rent at Michaelmas, the landlord cannot diftrain before Michaelmas, at which time his term ended.

5. A diftrefs may be made for rent, accrued after a Touch Wil. notice to quit, has expired; but it is a waiver of the notice. lingale, Hilary, 6. By 8 Ann. c. 14. f. 6. Goods may be diftrained for 30 Geo. 3. C.B. rent arrear, at any time within fix months after the expira

tion of the leafe.

2 Inft. 104. 2 And. 71.

2 Inft. 131. Mirror c. 2. fo

26.

IV. In what Place a Distress may be made,

1. By the 52 Hen. 3. c. 2. "None fhall diftrain any to "( come to his court, which is out of his fee, or upon whom "he has no jurifdiction, by reafon of a hundred or baili"wick; NOR take distresses out of the fee or place where he "hath jurifdiction."-This ftatute is a declaration of the common law, and means fuit fervice in refpect of a feignory, and not fuit real, in refpect of refidence; but no diftress is prohibited, by this act, in any place where a person hath power, or otherwife, to diftrain.

2. By 9 Edw. 2. c. 9. "The king's officers, as fheriffs, "and others, fhall not take diftreffes in the fee, wherewith "churches, in time past, have been endowed;" but diftreffes may be taken in poffeffion of the church newly purchased. 3. By 52 Hen. 3. c. 2. "No perfon, except the king's See 2 Bac. Abr. "officers, fhall take diftreffes in the king's highway," for p. 111. in notes. the king's fubjects ought to have free paffage, as well to fairs and markets, as about their other affairs.

2 Inft. 131.

Sed vide ante p 78. Sect. 7.

Landlord may

feize goods frau

du'ently carried off the premises, &c.

4. By 8 Ann. c. 14. "In cafe any leffee for life or lives, "term of years, at will, or otherwife, of any meffuages, "lands or tenements, upon the demife whereof any rents "fhall be referved or made payable, fhall fraudulently or « clandeftinely convey or carry off, from fuch demised pre"miffes, his goods or chattels, with intent to prevent the " landlord or leffor from diftraining the fame for arrears of "fuch rent fo referved as aforefaid: It fhall and may be "lawful for fuch leffor or landlord, or any person or per"fons by him for that purpose lawfully empowered, within "the space of five days next enfuing fuch conveying away, " or carrying off fuch goods or chattels as aforefaid, to take " and feize fuch goods and chattels wherever the same shall "be found, as a diftrefs for the faid arrears of fuch rent; "and the fame to fell or otherwise difpofe of in such man"ner, as if the faid goods and chattels had actually been "diftrained by fuch leffor or landlord, in and upon fuch "demifed premises, for fuch arrears of rent; any law, cuf"tom, or ufage, to the contrary in any-wife notwithstand"ing. PROVIDED, that nothing in this act fhall empower "fuch leffor or landlord to take or feize any goods or chat"tels, as a distress for arrears of rent, which be fold bona Uniefs fold bona fide, and for a valuable consideration, before fuch seizure

Se&t. 3.

fide.

་

"made."

5. By 11 Geo. 2. c. 19. If goods be fraudulently con- See the ftatute veyed off the premiffes, the landlord may, within thirty more at large, days, diftrain them at the place to which they are so fraudu- ante p. 78. lently removed.

Com. 17.

6. A diftrefs for rent may be made in any part of the 1 Roll-Abr.671. land out of which the rent iffues, or if a houfe be upon the 5 Co. 92. land demifed or charged, a diftrefs may be made in the 2 Bac. Abr. III. houfe when the houfe is open; fo alfo it may be taken out of 3Com.Dig.116. a window, but one cannot break open the outer-door to diftrain; and therefore it was held by LORD HARDWICKE, that the breaking of a padlock put upon a barn door, by force, in order to distrain the corn lodged therein, was illegal; (a) but if the outer-door be open, one may break open the inner-door to diftrain.

7. If land lie in two counties, a diftrefs may be made for the whole rent in either county: So if it be in the hands of many tenants, it may be for the whole in the land of any tenant; but if two parcels of land are let by the fame leffor to the fame leffee, by feparate demifes, and rent due on both, there cannot be a joint distress for both.

V. How a Diftrefs fhall be difpofed of by the COMMON LAW.

(4) 9 Viner's Abr. 126.; but

Roll. Abr.671.

Rogers v. Buck1040. B. R. H.

mire, Stra.

245.

1. A DISTRESS, by the common law, cannot be fold, Diftrefs must be but muft, in the firft place, be carried to fome pound, and pounded. there impounded by the taker. A POUND, is either pound overt, that is, open-head, or pound covert, that is, close.

dred, must be to

pound overt.

2. By the ftatute 1 & 2 Philip & Mary, c. 12. no dif- Cattle driven trefs of cattle can be driven out of the hundred where it is out of the hun taken, unless to a pound-overt, within the fame, and within three miles of the place where it was taken; and no fingle distress of goods or cattle fhall be impounded in several places, to enforce feveral replevins, on pain of five pounds and treble damages; AND none fhall take above fourpence for impounding of any one diftrefs, on pain of five pounds above the money fo taken.

Co. Lit. 47. 2 Inft. 106.

Owen 124.

Dyer 280.

3. If a diftrefs of live animals, be impounded in a common POUND-OVERT, the owner muft take notice of it at his peril; but if in any special pound-overt, fo conftituted for this particular purpose, the diftrainer muft give Co. Jac. 148. notice to the owner; and in both these cafes, the owner, and not the diftrainer, is bound to provide the beasts with food and neceffaries; but if they are put in a pound-covert, as in a stable, or the like, the landlord or distrainer must feed and sustain them: A diftrefs of household goods, or

other

(a) N. B. At
the common
Jaw no notice of
diftrefs was ne-
ceffary; there
fore landlord

may feize goods
under a diftrefs,
and keep them

other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert, alfo the diftrainer muft anfwer for the confequences.

4. A diftrefs cannot be used or abufed; for it will make him who diftrained a trefpaffer ab initio; (a) as if he drive cattle diftrained into another county, and then fell it; or if a horse be tied to the pound, to prevent his leaping out, and he ftrangles himfelf; or if a man work cattle diftrained; or if a man diftrain a hide, and then tans it, although it be for its preservation: So if a man milk a cow, though it be for the benefit of the cow: But a ufing for the benefit of the owner fhall be allowed, as if a man be taken for diftrefs, and the taker fecures it; fo if cows, horfes, &c. be taken in withernam, they may be milked or worked in a reasonable manner; for they are delivered to the party in lieu of his own cattle; and if a man diftrain for several barrels of beer, and draw beer out of any of them, he is a trespasser ab initio as to that barrel only.

5. Impounding a distress in another county, does not make the party a trefpafler.

6. If turfs lie on a common, damage feafant, a commoner may diftrain them, but he cannot burn them.

VI. How a Diftress fall be difpofed of by STATUTE.

1. A DISTRESS can only be made by and according to the rules of the common law, and the thing taken, being intended merely to procure a fatisfaction for an injury committed, or a duty not performed, was confidered only as a pledge to compel performance or recompence, and therefore could not be fold; but this being found inconvenient in diftreffes for the recovery of rent in arrear, the legislature. interpofed to remedy it.

2. By the 2 Will. & Mary, 6. 5. therefore it is enacted, "That where any goods or chattels fhall be diftrained for

any rent referved and due upon any demife, leafe, or "contract whatfoever, and the tenant or owner of the goods fo diftrained on, fhall not within five days next after fuch diftrefs taken, and notice thereof (a) (with the "cause of fuch taking) left at the chief manfion-house, or "other moft notorious place on the premises charged with "the rent diftrained for, replevy the fame, with fufficient fell them, unlefs fecurity to be given to the sheriff according to law; that "then and in fuch cafe after fuch diftrefs made and notice

as a plenge; but he cannot proceed to

notice has been

given pursuant to this ftatute.

66 as

"as aforefaid given, and at the expiration of the faid five "days, the perfons diftraining fhall and may with the fheriff 66 or under-fheriff of the county, or with the conftable of "the hundred, parish or place, where such distress shall be "taken, (who are hereby required to be aiding and affifting "therein) cause the goods and chattels fo diftrained to be "appraised by two fworn appraisers (whom fuch fheriff, "under-fheriff or constable, are hereby impowered to swear "to appraise the fame truly according to the best of their "understanding) and after fuch appraisement, shall and "may lawfully fell the goods and chattels fo diftrained, for "the best price that fhall be gotten for the fame, towards "the fatisfaction of the rent, for which the faid goods and "chattels fhall have been diftrained, and of the charges of "fuch diftrefs, appraisement, and fale, leaving the over"plus (if any) in the hands of the faid fheriff, under-the"riff, or conftable, for the owner's ufe."

3. A notice, under this claufe of the ftatute, was given Mofs v. Galliwithout ftating the caufe of the taking, and it was contended more. that the requifites mentioned in the act, are in the nature Doug! 281. of conditions precedent, and if not complied with, the proceedings are illegal. But by BULLER, Justice, it is not neceffary, by this ftatute, to fet forth in the notice at what time the rent became due.

4. If a diftrefs be made in two hundreds viz. A. and B. T Silk. 247. in different counties, OATH, to the appraisers, upon fale, 1 Ld. Ray. 54. administered by the conflable of the hundred of A. in the

hundred of B. is good.

5. A perfonal notice of diftrefs is fufficient; for it need not be at the chief mansion-house, or other notorious place, on the premiffes, the intent of the act being only that the party fhould have notice, which is performed by this means, better than if it had been left at the house or other notorious place.

4 Mod. 390.

i Ld. Ray. 53. 12 Mud. 76.

6, If the goods diftrained are not the goods of the tenant 3 Com. Dig. 123. himself, notice to the owner of the goods is fufficient in trover, or other action for the goods by the owner; but if the tenant had brought replevin for the goods, notice to the owner had not been fufficient, without notice alfo at the manfion of the tenant, or other notorious place upon the premiffes.

7. By 8 Ann, c. 14. which authorifes a landlord to have one year's rent before an execution can be executed;

(a) and alfo authorifes landlords to feize goods fraudulently (a) Ante p. 88.

2

carried