SECTION VII. AT WHAT TIME A DISTRESS MAY BE TAKEN. A DISTRESS for rent cannot be made at night, that is, between A distress sunset and sunrise, nor can it at common law be made until cannot be the day after the rent becomes due, for the rent is not due until made at the last minute of the natural day on which it is reserved, until the night, or though strictly it is demandable and payable before sunset on day after that day. The custom of a place, however, or an agreement the rent between the landlord and tenant, may empower the landlord becomes due, exto distrain for it earlier. Therefore, where a trader, after comcept by mitting an act of bankruptcy, took a shop, and agreed to pay a contract or half-year's rent in advance, where by the custom of the coun- custom. try, half a year's rent became due on the day on which the tenant entered; it was held, that the landlord, after an assignment under the commission, and before the year expired, might distrain the goods on the premises for half a year's rent. distrain At common law the landlord could not have distrained for The landhis rent after the expiration of the term. But by 8 Anne, c. lord may 14, s. 6, “any person, having any rent in arrear upon any within six lease for life or lives, or for years or at will, may distrain for months afsuch arrears after the determination of the lease; provided ter the exsuch distress be made within six calendar months after the de- piration of termination of such lease, and during the continuance of such the term. landlord's title or interest, and during the possession of the tenant from whom such arrears became due.' "e Although this proviso is in terms confined to the possession *of the tenant, yet it has been held, that where the tenant dies *806 before the term expires, and his personal representative continues in possession during the remainder and after the expiration of the term, the landlord may distrain within six calendar months after the end of the term, for rent due at the time when the tenant died, as well as for what accrued afterwards. Where a landlord permitted his tenant to retain possession of part of a farm after the tenancy had expired, it was held, that he might distrain on that part within six months after the expiration of the tenancy. So, where part of a tenant's corn remained in a barn on the demised premises beyond six calen 1 Inst. 147, a. Gilbert on Dis. 56. Aldenburgh v. Peaple, 6 C. & P. 212. (25 Eng. C. L. 361.) But cattle damage feasant may be distrained at night; for otherwise they might escape. Duppa v. Mayo, 1 Saund. 287. 1 Inst. 47, b. Buckley v. Taylor, 2 T. R. 600. • It has been held that this statute does not apply to cases where the tenancy is put an end to by the tenant's wrongful disclaimer. 322. (32 Eng. C. L.) 'Braithwaite v. Cooksey, 1 H. Bl. 485. Doe d. David v. Williams, 7 C. & P. • Nuttall v. Staunton, 4 B. & C. 57. (10 Eng. C. L. 276.) 6 D. & R. 155. VOL. II.-6 Limita the time of making a distress. dar months, but within the time allowed by the custom of the county for outgoing tenants to get in and dispose of their crops; it was held, that the landlord might distrain the corn on the premis.s. So, where the tenant's remaining was by agreement. But a termor, who lets to an under-tenant, cannot, after his term has expired, enforce the continuance of the undertenancy by distress, if the under-tenant refuses to acknowledge him as landlord, or pays him under threat of distress; although the under-tenant still retain the possession. By 3 & 4 W. IV, c. 27, s. 2, no person shall make an entry tions as to or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or bring such action, shall have first accrued; and by sec. 42, no arrears of rent or interest in respect of money charged upon or payable out of any land or rent shall be recovered by distress or action, but within six years next after the same shall have become due, or after an acknowledgment of the same in writing shall have been given to the person entitled thereto, signed by the person by whom the same was payable.d *807 *SECTION VIII. HOW A DISTRESS SHOULD BE MADE. Authority THE distress for rent should be made by the landlord or his of a bailiff bailiff; if by the latter he should have a warrant of distress to distrain. signed by the landlord;(1) a subsequent assent, however, will be as effectual as a previous command; for "whenever a specific appointment of an agent is necessary, a subsequent recognition of acts done by him in that capacity is better even than a previous authority." Where, in replevin against a broker, it appeared that the landlord had employed the attorney the defend him, it was held sufficient evidence of the broker's authority to distrain, in the absence of any written. warrant.f The stat. 13 Edw. I, c. 37, (West. 2,) which enacts that no Lewis v. Harris, 1 Hen. Bl. 7, n. Bevan v. Delahay, id. 5. b Knight v. Bennett, 3 Bing. 361. (13 Eng. C. L. 8.) 11 Moore, 222. • Burn v. Richardson, 4 Taunt. 720. 3 & 4 W. IV, c. 27, s. 2 & 42. • Per Best, C. J., in Jones v. Bright, 5 Bing. 533. (15 Eng. C. L. 529.) 2 M. & P. 120. Bro. Ab. tit. Traverse, 3. Lamb. Mills, 4 Mod. 378. 11 Mod. 112. 'Duncan v. Meikleham, 3 C. & P. 172. (14 Eng. C. L. 257.) It seems that an infant cannot be a bailiff. Cuckson v. Winter, 2 M. & R. 313. (1) (Bailiff to distrain may be constituted by parol. Franciscus v. Reigart, 4 Watts, 98. Need not be a constable. Wells v. Hornish, 3 Penn. 30.) distress shall be taken except by bailiffs "sworn and known," does not apply to distresses taken for rent in arrear.a If the landlord enter a house and seize upon some goods as What is a a distress in the name of all the goods in the house, it will be sufficient sufficient. Even a slight expression of the landlord's inten- seizure. tion to make a distress will be sufficient. As where a landlord, hearing a tenant and a stranger dispute about the property of an article in the premises, declared that the article should not be removed until his rent was paid, and in the afternoon of the same day sent his broker to distrain for the rent; it was held, that the distress was commenced by the declaration of the landlord in the morning, and completed by the entry of the broker, and that the landlord was entitled to an article which had been removed in the mean time." Where a landord's agent went on the tenant's premises, walked round them, and gave a written notice that he had distrained certain goods lying there, for rent, and that unless the rent was paid within five days the goods would be sold, and went away without leaving any person in possession; it *808 was held to be a sufficient seizure to give the tenant a right of action for excessive distress, and that quitting the premises without leaving any one in possession was not an abandonment of the distress, as the 11 G. II, c. 19. s. 10, gave the landlord power to impound, or otherwise secure on the premises goods distrained for rent in arrear.d A broker's man having taken possession of property under a distress for rent, after remaining two days, left the house in a state of great excitement, bordering on insanity. The landlord thinking that his leaving had been procured by the drugging of his liquor by the parties in the house, but which was not proved, six days after broke into the house and took away the goods, without any previous demand of admission; held, that he had no right to enter again after so long a delay, and that the owner of the goods might maintain trover for them.e door must In order to make a distress, the outer door cannot in ordi- The outer nary cases be broken; but if the outer door be open, the per- not be son distraining may justify breaking open an inner door, or broken, lock, to find any goods that may be distrainable. It has been but an inheld that trespass will not lie against a landlord who occupied ner door may. Begbie v. Hayne, 2 Scott, 193. 2 Bing. N. C. 124. (29 Eng. C. L. 278.) 1 Hodges, 266. * Dodd v. Morgan, 6 Mod. 215. Wood v. Nunn, 5 Bing. 10. (15 Eng. C. L. 346.) 2 M. & P. 27. Swann v. Falmouth, (Earl of,) 8 B. & C. 456. (15 Eng. C. L. 264.) 2 M. & R. 534. Russel v. Rider. 6 C. & P. 416. (25 Eng. C. L. 463.) 'Browning v. Dann, B. N. P. 81. In making a distress for rent, circumstances may occur which may require the presence of a police officer. But to justify the landlord in calling him in, it must be shown that his presence was rendered necessary either from threats of resistance, or the apprehension of violence, &c. Skidmore v. Booth, 6 C. & P. 777. (25 Eng. C. L. 646.) Tindal. broken open. an apartment over a mill demised to his tenant, from which it was divided only by a boarded floor without any ceiling, for taking up the floor of his own apartment, and entering through the aperture to distrain for rent. And by 11 Geo. II, c. 19, When the s. 7, "any place in which goods or chattels, fraudulently or outer door clandestinely conveyed away, are locked up or secured, so as to may be prevent the same from being taken as a distress for rent arrear, may be broken open and entered in the day time by the party distraining; first calling to his assistance the constable or other peace officer of the place where the goods are suspected to be concealed; and in case of a dwelling-house, oath being first *809 *made before a justice of the peace of a reasonable ground to suspect that such goods are therein; and the same may be taken and seized for the arrears of rent, as if they had been in an open place." SECTION IX. HOW A DISTRESS SHOULD BE DISPOSED OF. Where a 1. Impounding a distress. 2. Sale of a distress. PAGE 810 1.-Impounding a distress.] AT common law the party disdistress training goods might impound them in any place that he thought should be proper. But by 1 & 2 Philip & Mary, c. 12, s. 1, no distress impound- of cattle is to be driven out of the hundred, rape, wapentake, ed. or lathe where the same is taken, except it be to a pound overt, within the same shire, nor above three miles from the place where the same is taken; nor impounded in several places, whereby the owner may be constrained to sue several replevins, on pain of forfeiting to the party grieved one hundred shillings, Costs of and treble damages; and by sec. 2, no person shall take for impound- keeping in pound or impounding any distress above four pence ing. for any one whole distress; on pain of forfeiting five pounds to the party grieved. It has been held, under this statute, that where lands lying in two adjacent counties were let under one demise, at one entire rent, and the landlord distrained cattle in both counties for rent, he might chase them all into one county; but not so if the counties were not adjoining. The offence under this statute for impounding a distress in a wrong place, or in several places, is but a single offence, though several persons be concerned, and shall be satisfied with one forfeiture.d By 11 Geo. II, c. 19, s. 10, persons distraining for rent may Gould v. Bradstock, 4 Taunt. 562. b 1 Inst. 106. • Walter v. Rumball, 1 Lord Raym. 53. 1 Salk. 247. 4 Rex v. Clarke, Cowp. 612. Partridge v. Naylor, Cro. Eliz. 480. distrain impound the distress in any convenient part of the land. The second section of 1 & 2 P. & M. c. 2, does not apply to a distress impounded on the premises pursuant to the latter statute.b At common law, if living chattels were put into a pound *overt, the owner at his peril was bound to sustain them; but *810 if put into a private pound, the distrainer was bound at his The party peril to supply them with provision. But by 5 & 6 W. IV, c. 5, the distrainer is in all cases, where cattle are put into a ing must supply pound overt, as well as covert, bound to supply them with cattle with necessary provisions, the value of which he may recover from provisions the owner. The distrainer cannot work or use the thing distrained, as he has only the custody of it as a pledge; he may, however, milk cows and other milch kine, because it may be necessary to their preservation. after five less reple 2.-Sale of a distress.] The distress being considered Distress merely as a pledge, could not at common law be sold; but by to be sold 2 W. & M. sess. 1, c. 5, s. 2, it is enacted, "that, where any days ungoods or chattels shall be distrained for any rent reserved and due upon any contract, and the tenant or owner of the goods vied. shall not within five days next after such distress, and notice thereof, with the cause of such taking left at the chief mansionhouse, or other most notorious place on the premises charged with the rent, replevy the same, the person distraining may, with the sheriff or under-sheriff of the county, or constable of the hundred, parish, or place, where the distress is taken, cause the distress to be appraised by two sworn appraisers, whom such sheriff, &c., shall swear to appraise them truly, and after such appraisement, may sell the same towards satisfaction of the rent, and the charges of the distress and appraisement, leaving the overplus, if any, in the hands of the sheriff, &c., for the owner's use.' "'e In the notice of the sale of a distress it is not necessary to Notice. set forth at what time the rent became due for which the distress *has been made, nor need the time of taking the goods be *811 expressed therein; for a man may distrain for one cause and justify for another. It has been held, that notice to the tenant was sufficient under this act, the sole object of the statute being a See ante, 800. 520. Child v. Chamberlain, 5 B. & Ad. 1049. (27 Eng. C. L. 263.) 3 Nev. & M. * 1 Inst. 4. Bac. Ab. tit. Dist. (D. 2.) A pound-keeper is bound to receive every thing offered to his custody, and is not answerable whether the thing was legally impounded or not. An action of trespass, therefore, will not lie against him merely for receiving a distress, though the original taking be tortious; but if he goes beyond his duty, and assents to the trespass, it may be a different case. Branding v. Kent, Cowp. 476. This statute does not affect distresses damage feasant, therefore they remain, as they were at common law, mere pledges, and the sale of them will make the party distraining a trespasser ab initio. Dorton v. Pickup, S. N. P. 674. 'Per Buller, J., in Moss v. Gallimore, Doug. 280. Crowther v. Ramsbottom, 7 T. R. 654. Etherton v. Pollewell, 1 East, 139. |
