not be dis trained. natural repose; and it has been held, that a horse which a man was leading only, might be distrained. Things in 5.-Goods in the custody of the law.] Goods in the custody the custo- of the law, as things distrained damage feasant, or taken in dy of the execution, or under an attachment, cannot be distrained for law canrent in arrear. Where corn, while growing was seized under a fi. fa., and after it was cut, but before it was fit to be taken away the landlord distrained it for the rent; it was held, that the distress was illegal as the corn was not left an unreasonable time on the premises. It has been held, however, that if goods remain on demised premises after a fictitious bill of sale made of them under an execution, they are liable to be distrained as before. And where a sheriff's officer executed a writ of fi. fa. by going to the house and informing the debtor he came to levy on his goods, and laying his hand on a table and saying "I take this table," and then locked up his warrant in the table drawer, took the key, and went away without leaving any person in possession, and after the fi. fa. was returnable, but not continued, the landlord distrained the goods for rent; held, that the sheriff could not maintain trespass against him; for, by quitting the premises after the seizure, and leaving no person in the possession of the goods, he relinquished the possession, and the goods were no longer in the custody of the law.f 6.-Fixtures.] Things annexed to the freehold, as furnaces, mill-stones, or chimney pieces cannot be distrained, because they cannot be taken away without doing injury to the freehold, which the law will not allow; and this privilege extends to things which the tenant will not be allowed to remove from the *800 *premises by reason of their being considered as annexed to the freehold, though they be not affixed to it; for even if a mill-stone be taken out of its proper place to be picked, it cannot be distrained; because such removal is of necessity, and it is still part of the mill; nor can a smith's anvil on which he works, be distrained, though it be not fastened by nails, for it is accounted part of the forge. A kiln cannot be distrained; and it is questionable whether machinery fixed by bolts to the floor of a factory can be distrained for rent.j Bissett v. Caldwell, Peake, 36. Baynes v. Smith, 1 Esp. 206. b Wagstaff v. Clark, Woodfall, L. & T. by Harr. 313. 1 Inst. 47, a. Eaton v. Southby, Willes, 131. Parslow v. Cripps, Comyn. 213. Peacock v. Purvis, 5 Moore, 79. 2 B. & B. 362. (6 Eng. C. L. 154.) d Wright v. Dewes, 1 Ad. & Ell. 641. (28 Eng. C. L. 172.) Peacock v. Purvis, supra. Smith v. Russell, 3 Tannt. 400. Blades v. Arundle, 1 M. & S. 711. & Co. Litt. 47, b. Per Willes, C. J., in Simpson v. Hartopp, supra. Wynne v. Ingleby, 1 D. & R. 247. 5 B. & A. 625. Bro. Ab. tit. Dist. pl. 23. 13 (7 Eng. C. L. 214.) i Niblet v. Smith, 4 T. R. 594. Price, 459. cocks of 7.-Corn and growing crops.] A distress being considered Sheaves of at common law merely as a pledge, things were held not to corn, be distrainable which could not be restored in the same plight hay, and as they were when taken, therefore cocks and sheaves of corn growing were not distrainable. But by 2 W. & M. c. 5, s. 3, "sheaves crops may or cocks of corn, or loose corn and hay lying upon any part of be disthe land charged with the rent, may be seized, secured, and trained. locked up in the place where found, in the nature of a distress, until replevied or sold; but the same must not be removed to the damage of the owner from such place." And as growing corn was considered part of the freehold, it could not be distrained at common law, but by 11 Geo. II, c. 19, s. 8, the landlord may distrain for arrears of rent, all sorts of corn and grass hops, roots, fruits, pulse, or other product whatsoever, growing upon any part of the estate demised, and may cut, carry, and lay up the same when ripe, in barns on the premises, or if there be no barn or proper place on the premises, then in any other place as near as may be; and in a convenient time appraise and dispose of the same towards satisfaction of the rent and expenses; the appraisement to be made when cut and gathered, and not before. Sec. 9 provides that if the tenant shall pay or tender the arrears of rent and costs before the corn is cut, the distress shall cease, &c. The words other product *in the above enactment have been held to apply only to other *801 product of a nature similar to the things specified, that is to say, product to which the process of ripening and being cut, gathered, made and laid up when ripe, is incidental; therefore trees and shrubs growing in a nursery ground are not distrainable within the statute. Growing crops may be considered in the nature of goods and chattels, as they may be distrained in the same manner as articles of the latter description. But where A. granted an annuity to B., charged on certain premises and empowered him to distrain for the arrears, and "to detain, manage, sell and dispose of the distresses in the same manner in all respects as distresses for rents reserved upon leases for years, and as if the said annuity was a rent reserved upon a lease for years;" the court thought that these words did not empower the grantee to distrain growing crops, but only conferred on him the powers given by 2 W. & M. c. 5, s. 3.d Growing crops cannot be sold before they are ripe. Where, however, a landlord distrained and sold growing crops before Sec. 2, post, 810, requires the goods distrained to be sold at the expiration of five days, if not replevied. "It seems that under this statute the landlord has no option, but must sell at the end of five days." Per Parke, B., in Pigott v. Birtles, 1 M. & Wels. 448. b Clark v. Gaskarth, 8 Taunton, 431. (4 Eng. C. L. 154.) 2 Moore, 491, recog nised in Clarke v. Calvert, 3 Moore, 114. (4 Eng. C. L. 272.) Glover v. Coles, 1 Bing. 6. (8 Eng. C. L. 221.) 7 Moore, 231. Miller v. Green, in Error, 2 C. & J. 143. 2 Tyr. 1. 8 Bing. 92. (21 Eng. C. L. 234.) 1 M. & Scott, 199. • Owen v. Leigh, 3 B. & A. 470. (5 Eng. C. L. 346.) *802 they were cut, and it appeared that they had fetched as much as if sold at the proper time, and the arrears of rent exceeded what they sold or; it was held in trover by the tenant that he was entit d to nominal damages only." Where a sheriff took corn in the blade under a fi. fa., and sold it before the rent was due, it was held that he was 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 had given notice, and though the corn was not removed from the premises until long afterwards.b *By 56 Geo. III, c. 50, s. 6, landlords are not to distrain for rent on purchasers of crops severed from the soil, or other things sold subject to husbandry agreements, nor on stock or implements employed, under the provisions of the act. A distress must be made on the pre mises from sues, un less when *SECTION V. IN WHAT PLACE A DISTRESS SHOULD BE MADE. THE distress must in general be made on the premises out of which the rent issues; therefore, where there was a demise of a wharf, together with all ways, paths, passages, easements and appurtenances whatsoever to the said wharf belonging; it was held that the landlord could not distrain barges lying opposite which the to the wharf between high and low water mark, and attached rent is- by ropes to the wharf although the verdict of a jury found that the exclusive use of the land between high and low water removed mark, as well when covered with water as when dry, was deto prevent mised as appurtenant to the wharf, for the accommodation of a distress. the tenants of the wharf; but they also found that the land itself between high and low water mark was not demised. "If," said Lord Tenterden, C. J., " the meaning of the finding of the jury be that the use and enjoyment of the land between high and low water mark passed as appurtenant, that would be a mere privilege or easement, and the rent could not issue out of that; the landlord, therefore, could not distrain there for rent issuing out of land in respect of which the easement or privilege had its existence. If, however, the landlord enters a Proudlove v. Twemlow, 1 C. & M. 326. A custom that a tenant may leave his away-going crop in the barns, &c., of the farm, for a certain time after the lease is expired, and he has quitted the premises, is good; and the landlord may distrain the corn so left, for rent in arrear, after six months have expired from the determination of the term. Beavan v. Delahay, 1 H. Black. 5. S. P. Lewis v. Harris, 1 H. Black. 7, n. Gwillim v. Barker, 1 Price, 274. * Buszard v. Capel, 8 B. & C. 141. (15 Eng. C. L. 169.) 2 M. & R. 197, in Error. 6 Bing. 150. (19 Eng. C. L. 36.) 3 M. & P. 480, overruling S. C. 4 Bing. 137. (13 Eng. C. L. 377.) 12 Moore, 339. on the premises to distrain, and he has a view of cattle or other chattels thereon, and the tenant removes them to prevent a distress, the landlord may follow them and distrain them out of the premises; but if the beasts go off the land of themselves before they are seen by the landlord, he cannot distrain them afterwards; and it is said that if the owner drive beasts damage feasant out of the soil, even with a view to evade a distress, they cannot be distrained, *because the beasts must be *803 damage feasant at the time of the distress.b counties. Where there are separate demises, there ought to be separate distresses on the several premises subject to distinct rents. Where, however, lands lying in different counties are held Lands in under one demise at one entire rent, a distress may be taken different in either county for the whole rent in arrear, and chasing a distress over is a continuance of the taking; but where the counties do not adjoin, a distress cannot be chased from one county into the other. If a rent-charge issue out of land in the possession of many tenants, a distress may be taken upon the possession of one for the whole rent, for it issues out of each part. SECTION VI. IN CASE OF FRAUDULENT REMOVAL. comes By stat. 11 Geo. II, c. 19, s. 1, "if lessee for life, term of If after the years, at will, or otherwise, of lands or tenements, upon the rent bedemise whereof any rents are reserved, shall fraudulently or due, goods clandestinely carry off his goods from such demised premises, be frauduto prevent a distress, the lessor, or any person empowered by lently rehim, may, within thirty days after carrying off, distrain such moved to goods, wherever found, for the rent arrear, and sell or dispose prevent a distress, of the same, as if distrained on the premises." the land By sec. 2, "no landlord or other person, &c., shall seize such lord may goods or chattels which shall be sold, bona fide and for a valu- distrain able consideration, before such seizure made, to any person them not privy to such fraud.” By sec. 8, "the landlord may distrain any cattle or stock of the tenant depasturing on any com- them. wherever he can find Co. Litt. 161, a. Per Tindal, C. J., in Rand v. Vaughan. post, 804, n. ⚫ Id. But it was decided by Lord Eldon, in Clement v. Milner, 3 Esp. 95, that to justify a distress damage feasant, it was sufficient that the distrainer entered the locus in quo whilst the cattle were in it. Rogers v. Birkmire, 2 Stra. 1040. Walter v. Rumball, 1 Lord Raym. 55. 12 Mod. 76. 1 Rol. Ab. 671. This provision is similar to that of 8 Ann, c. 14, s. 2, which authorised landlords to follow and distrain cattle within five days after the removal. *804 The removal must be fraudulent mon, appendant or appurtenant, or any way belonging to the premises demised." *In order to justify a landlord in acting under the first section of this statute, the goods must have been removed after the rent became due, for if they be removed at any time before the rent becomes due, the landlord will not be warranted in distraining them off the premises. The statute, however, applies to all cases where a landlord is, by the conduct of his tenant in removing goods from premises for which rent is due, turned over to the barren right of bringing an action for his rent. Where a tenant openly, and in the face of day, and with notice to his landlord, removed his goods without leaving sufficient on premises to satisfy the rent then due, and the landlord followed and distrained the goods; held, that although the removal might not be clandestine, yet, if it was fraudulent, (which was a question for the jury,) the landlord was justified under the statute.b The mere removal of the goods is not sufficient to bring the case within the statute. The removal must be fraudulent, which is a question for the jury; and it must appear that sufficient goods were not left on the premises to meet the arrears of rent.(1) The statute applies to the goods of the tenant only, and not to those of a stranger or a lodger; wherefore, a plea justifying the following goods off the premises, and distraining them for rent arrear, must show that they were the tenant's goods.e Where the assignees of a bankrupt, who was lessee of pasture land, being chosen on the 8th of the month, allowed his cows to remain upon the demised premises till the 10th, and ordered them to be milked there; held, that they thereby became tenants to the lessor, and the cows being removed on the *805 *10th to avoid a distress for arrears of rent, that he had a right to follow and distrain them.f Watson v. Main, 3 Esp. 16. Furneaux v. Fotherby, 4 Camp. 136, where Lord Ellenborough, however, expressed some doubts whether, if the goods were removed the night before the rent became due, the landlord might not follow them. The above doctrine, however, was recognised and acted on in Rand v. Vaughan, 1 Bing. N. C. 767. (27 Eng. C. L. 568.) 1 Hodges, 173. Watts v. Thomas, MS. Q. B. M. T. 1837. b Opperman v. Smith, 4 D. & R. 33. John v. Jenkins, 1 C. & M. 227. a Parry v. Duncan, 7 Bing. 243. (20 Thornton v. Adams, 5 M. & S. 38. C. L. 369.) 'Welch v. Myers, 4 Camp. 368. (16 Eng. C. L. 187.) Eng. C. L. 118.) 5 M. & P. 19. (1) (Purfell v. Sands, 1 Ashmead, 120.) |
