in 



DISTRESS. 



DISTRESS. 



to tb* lord's rurtomary court ; and it U not unusual for lessees for 

 Tr to covenant to attend the lord's court*, though, unless thry also 

 111 the situation of freeholders of tho nuuior, they are not qualified to 

 ait a* niton and judge* in the court-baron ; and unit** they are copy- 

 holders, thry cannot be sworn upon the homage <>r jiu 

 totuary court. This suit U sometimes cal dot, to diatingutoli 



irt vhuh the reaunta, or thi*e 



who dwell hr,l or a I.-et, owe to tho shei ill"- <"'' "> to 



the court-led i) 



A dirtrm lie* for -fta ad meletdimim), an obligation, 



till *^Htr*f in soot* manors, to grind at the lord'i mill. 



.- ' ' ' 



fold their '. lands. 



So, if Uu<l be holdm by the tenure of repairing a l-i idv-. or a high- 

 way, or of doing >uit to a leet, or filling some office within the leet, a 

 distress will be for iioa-performanoe of the aervice, although no fine or 

 amercement may hare been imposed in the court leet. 



Th moat important feudal duty I'IT which n distress may be taken 

 ia ml. Kent, in it* original and still mott usual form, is a ]< 

 rendered by the tenant to hia landlord aa an equivalent or a compen- 

 sation for the occupation of land, ic. Such rent ia denominated unt- 

 acrrice. It cornea in lieu of, and represents the profile of tho land 

 granted or demiaed, and ia therefore aaid to /anw out of the land. To 

 rent-aerrice the law annexea the power of diatreea, although tl 

 no agreement between the parties creating that remedy. But a rent 

 reserved upon a grant or demise cesses to be a rent-service if it be dig- 

 annexed from the ultimate property in the land, called in some cages 

 the reversion, in others, the right of reverter. Thus, if the owner of 

 land in fee demise* it for a term of years, reserving reut, and afterwards 

 aaaigna the rent to a stranger, retaining the reversion, or grant.- the 

 rerenion, retaining the rent, the rent being digconnecte<l from the 

 reveraioo ia oonaidered aa a branch severed from the trunk, and is 

 called a dry rent or rent-eeck, to which the common law annexed no 

 power of diatreea. So, if the owner of the land, without parting with 

 the land, grant* to another a reut out of the land, the grantee having 

 no reversion had only n rent-seek, unless the grunt expressly created a 

 power of distreaa, in which COM the rent would be a rent-charge. But 

 now, by atatute 4 George II. c. 28, s. 5, the like remedy by distress 

 ia given in cases of rent-seek, aa in the case of rent reserved upon 



And as all rents, though distinguished by a variety of names derived 

 from some particular circumstance attached to them, are resolvable 

 into rent service, rent-.-<-k. <r rent-charge, a distress lies at this day 

 for every species of rent, though a practical difference still sul< 

 to the mode of dealing with distresses taken for the one or for the 

 other. As to the several species of rent, and as to tho creation, transfer, 

 apportionment, suspension, and extinction of rente, and as to the estate 

 or interest of the party necessary to support a distress for rent, and 

 the caaes in which this remedy may be exercised by the personal 

 representatives of such parties, see RENT. 



A Iteriot appears to have been originally a voluntary gift by the 

 dying vassal to bis chieftain or lord (kar, Amu) of his beat horse or 

 armour. It has now become a legal liability to deliver the best animal 

 of toe deceased tenant to be selected by the lord, or sometimes a dead 

 tinattrl or a commutation in money. Where heriot is due by usage 

 within a particular district, in respect of all tenants dying within that 

 district, without reference to the property held, it is hcriot-custom ; 

 and as there is no particular land charged with the heriot, the lord 

 cannot distrain, but may seize the heriot as his own jmprrty, his 

 election being determined by the bare act of seizure. But heriot duo 

 in respect of the estate of the tenant in the hind U hcriot-aervice ; and 

 for this the lord may either distrain upon the land to compel the tenant 

 to deliver or procure the delivery of the heriot due upon the death of 

 his predecessor, or be may choose for himself, and seize the heriot as 

 his own property (the right of property vesting here also upon the 

 election exercised and signified by the seizure). 



As heriot is something rendered upon the death of a tenant, so relief 

 is a payment made by the heir upon the taking up ,- him 



of the inheritance. Strictly speaking, relief was payable in those cases 

 only where the tenure was by knight's service. But the name was 

 afterwards extended to a payment in the nature of a relief made by 

 the heir in socage. by doubling the rent for the first year aft. . the 

 descent of the land, in other words by paying one year's additional 

 rent. For this Utter payment a distress still lies. 



TM is a charge or impost upon goods in respect of some bcm I 

 ferred or right forborne with relation to those goods, by the party 

 claiming inch toll. 



Tuttt a/fain or marlrti are a duty payable to the owners of the fair 

 or maikrt as a oompenaation for the mischief done to the soil by the 

 holding of such fair or market 



ToU-irarme is a compensation paid in some cases to the owner of the 

 oil in respect of the transit or passage of goods. 



T-M-tkmmgk ia a toll for the transit of goods along a street or high- 

 war repaired by the |rty claiming the toll. 



PorttiMi, more commonly called parl-duliti, are tolls payable in 

 respect of vessel, coming to or sailing from a port or a wharf of v. hi. h 

 th* parties claiming the tolls, or those from whom they derive their 

 , such tolls, are the owners. 



In all these oases, if the toll be withheld, any part of the property 

 chargeable therewith may be seiied and detained aa a pledge for the 

 payment of such tll. 



1 1 /**rr bentut damafff-featanl. Besides distresses for omissions, 



defaults, or nonfeasjaaee, this remedy is given in certain cases aa a 



f obtaining reparation for some wrong d--:. ndnee. 



Cattle or dead chattels may be taken and detnn be pay- 



f a reasonable sum of money by way of K. 



injury sustained from such cattle or dead chattels being wrongfully 



: . |K-rty in the occupation of the party taking them, and doing 



damage tliei- nets of spoliation or merely by incumbering 



such | : liis is called a distress of things taken damage-feaaant 



'.and, Ac., is allowed not only to defend hiiiim-lf from 

 injury by driving out 01 removing the cattle, &c., but alxo to detain 



.: which did the injury till compensation be made : 

 trespass; for otherwise he might never tind t! ho had occa- 



sioned the trespass. l'i to Spelman and Ducange, ft wQl 



be seen that a similar practice obtained on t he continent onion 

 Antli, Wcrini, Hipuarii, and Ilurgundianx. 



right to distrain damage-feasant ia given to all persons having 

 an immediate possessory interest in the soil or in its produce, and 

 whose rights are therefore invaded by such wrongful intrusion. Thin, 

 not only the occupier of the land trespassed upon, but other persons 

 entitled to share in the present use of the land or of the produce, aa 

 commoner*. &c., may distrain. But though a commoner may always 

 distrain the cattle, &c., of a stranger found upon the common, it would 

 -i cm that he cannot, unless authorised by a special custom, distrain 

 the cattle, &c., of the person having the actual possession of the soil. 

 Nor can he distrain the cattle of another commoner who has stocked 

 beyond his proportion, unless the common lie .-tinted, that is, unless 

 the proportion be limited to a certain number. In - .Unary 



case of rights of common in nspcct of all the cattle which tie 

 moncr'H enclosed laud can support during the winter, cattle exceeding 

 jiortion cannot be disti 



Cattle found trespassing may be distrained damage-feasant, although 

 they have come upon the land without the knowledge of 

 and even through the wrongful act of a stranger. But if they ai 

 by the default of the occupier of the land, as by his. neglecting to 

 repair his fences, or to shut his gates against a road or a close in w hieh 

 the cattle lawfully were, such negligent occupier cannot distrain unless 

 the owner of the cattle suffer them to remain on the land after 

 and time given to him to amove them : and if cattle trespass < 

 day and go off before they are distrained, and are taken trespassing on 

 the same land on another day, they can be detained only for the damage 

 done upon the second day. 



Cattle, if once off the land u]xjn which they have trespassed, though 



urpose of eluding a distress, cannot be takt i 

 aiimediate pursuit. The occupier is left to his remedy by 



III. ! ; In distresses for rent and other duties, 



that which is taken must be something in which a valuable pi 

 may exist. But animals of a wild nature, if reclaimed and become 

 valuable (as deer kept in a private park), may be distrained. 



Fixtures, not being personal chattels, are not subject to distress. 



: e grow tin; crops subject to distress by the common law ; but 



now, l>y 11 Gco. II. c. 19, s. 8, distress for rent-service may be mode of 



all sorts of corn and grass, hops, roots, fruit, pulse, or other product 



whatsoever growing in any part of the land demised. 



By the common law nothing could be distrained upon for rent or 

 other duty that could not be restored in as good plight as at the 

 time of the distress being taken ; and therefore fruit, milk, and other 

 matters of a perishable nature could not be distrained, nor money 

 unless in a bag, because tho identical pieces could not be known so as 

 to be restored to the distrainee ; nor could grain or flour be taken if 

 out of the sack, or hay not being in a barn, or corn in the sheaf, 

 because the quantity could not be easily Ascertained; and they might 

 be scattered or injured by the removal. None of these could be taken 

 as a distress except for damage-feasant, though the same articles when 

 contained in bags, boxes, carts, or buildings might be distrained upon 

 for rent. But now by 2 Will. & Mary, seas. 1, c. 5, s. 3, distress may be 

 made of sheaves or cocks of corn, or com 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. 



Where a stranger's cattle are found upon the tenant's land they may 

 be distrained upon for rent-service, provided they ore there I 

 act or dciault of tl batv If they come upon the 



hind with the knowledge of their owner, or 1>\ Inr.-ikiiiR lenees whieh 

 are in repair, or which neither the landlord nor th. t. nnnt is bound to 

 repair, they are immediately distraiuable ; but ii in through 



defect of fences which the lord or tenant is bound to repair, the lord 

 :ake them for rent reserved upon a lease until they have lain 

 for a night upon the land, nor until 



he can be discovered, toremo\ >'ut in the case of a lord not 



hound to rep iir the fences distraining for an an. lent rent or P.! 

 and also in the case of a rent-charge, the cattle may be taken, after 

 they have lain a night upon the land, without notice to their owner. 



Things necessary for the carrying on of trade, ax tools and ut. i 



