573 



DISTRESS. 



DISTEESS. 



571 



or for the maintenance of tillage, as implements of husbandry, beasts 

 of the plough, and sheep as requisite to manure the land, are privileged 

 from distress whilst other sufficient distress can be found. But this 

 rule does not extend to a distress for a toll or duty arising in respect of 

 the thing taken as a distress, or of things connected with it ; as a dis- 

 tress of two sheep for market-toll claimed in respect of the whole 

 flock, or of the anchor of a ship for port-duty due in respect of such 

 ship. 



For the protection of tradesmen and their employers in the neces- 

 sary transactions of society, property of which the distrainee has ob- 

 tained the possession with a view to some service to be performed 

 upon it by him in the way of his trade, is absolutely privileged from 

 distress ; as a horse standing in a smith's shop to be shod, or put up at 

 an inn, or cloth sent to a tailor's shop to be made into clothes, or corn 

 sent to a mill or market to be ground or sold. The goods of a guest 

 at an inn are privileged from distress ;' but this exemption does not 

 extend to the case of a chariot standing in the coach-house of a livery- 

 stable keeper ; nor does it protect goods on other premises belonging 

 to the inn but at a distance from it ; and even within the inn itself 

 the exemption does not extend to the goods of a person dwelling there 

 as a tenant rather than a guest. Goods in the hands of a factor for 

 sale are privileged from distress ; so goods consigned for sale, landed 

 at a wharf, and placed in the wharfinger's warehouse. 



Beasts of the plough may be distrained where no other distress can 

 be found. And it is sufficient if the distrainor use diligence to find 

 some other distress. A distress is not said to be found unless it be 

 accessible to the party entitled to distrain, the doors of the house being 

 open, or the gates of the fields unlocked. Beasts of the plough may 

 be distrained upon where the only other sufficient distress consists 

 of growing crops, which though now subjected to distress, are not, 

 as they cannot be sold until ripe, immediately available to the 

 landlord. 



A temporary privilege from distress arises when the chattel is in 

 actual use, as an axe with which a man is cutting wood, or a horse on 

 which a man is riding. Implements in trade, as frames for knitting, 

 weaving, to., are absolutely privileged from distress whilst they are in 

 actual use, otherwise they may be distrained upon if no other sufficient 

 distress can be found. 



By 7 Ann. c. 12, a. 8, process whereby the goods of any ambassador 

 or other public minister of any foreign prince or state, or of their 

 domestic servants, may be distrained, seized, or attached, is declared 

 to be null and void. But the privilege of a domestic servant of 

 an ambassador does not invalidate a distress for the rent, rate, 

 or taxes of a house occupied for purposes unconnected with the 

 service. 



By the Bankrupt Law Consolidation Act, 12 & 13 Viet. c. 106, 

 j. 129, no distress for rent made and levied after an act of bankruptcy 

 upon the goods of any bankrupt shall be available for more than one 

 year's rent accrued prior to the date of the filing the petition ; but 

 the party to whom the rent is due shall be allowed to come in as a 

 creditor for the overplus of the rent due, and for which the distress 

 shall not be available. 



Where a tenancy for life or at will is determined by death, or by the 

 act of the landlord, the tenant, or his personal representatives, may 

 reap the corn sown before such determination, and therefore .such corn 

 though sold to a third person, cannot be distrained upon for rent due 

 from a subsequent tenant. [EMBI.KJIEXTS. j 



Neither the goods of the tenant nor those of a stranger can be dis- 

 trained upon for rent if they are already in the custody of the law, as 

 if they have been taken damage-feasaut, or under process of execution. 

 But although the landlord cannot distrain, yet by 8 Ann. c. 14, he has 

 a lieu or privilege upon the goods of his tenant taken in execution for 

 one year's rent. [EXECUTION.] 



IV. Time of mutiny a digtreis. Rent is not due until tli 

 moment of the day on which it is made payable. No distress there- 

 fore can be taken for it until the following day. And as a continuing 

 relation of landlord and tenant is necessary to support a distress for 

 rent service, there could at common law be no distress for rent be- 

 coming due on the last day of the term. But now, by 8 Ann. c. 14, 

 K. 6 and 7, any persons having rent in arrear upon leases for \i\v-, J<>t 

 years, or at will, may, after the determination of such lease, di- tr.dn 

 for the arrears, provided that such distress be made within six calendar 

 months after the determination of the lease and during the continuance 

 of the landlord's title or interest, and the possession of the tenant from 

 whom such arrears are due. If the possession of the tenant continue 

 in fact, it is immaterial whether that possession be wrongful and 

 adverse, or whether it continues by the permission of the landlord ; 

 and if a part only of the land remain in the possession of the tenant, 

 or of any person deriving his possession from the tenant, a distress 

 for the whole of the arrears may be taken in such part during the six 

 iir.ntlw. Where a tenant is entitled by the terms of his lease, nr by 

 the custom of the country, to hold over part of the land or buildings 

 for a period extending beyond the nominal term, the original tenancy 

 will.be considered aw continuing with reference to the laud, Ac., so 

 retained, and the landlord may distrain at common law for the arrears 

 during such extended period in the lands, &c., so held over, and he 

 may distrain under the statute during six months after such partial 

 right of possession bag entirely ceased. 



When different portions of rent are in arrear, the landlord may dis- 

 train for one or more of those portions, without losing his right to 

 take a subsequent distress for the residue; so, although the first 

 distress be for the rent last due. But if there be a sufficient dis- 

 tress to be found upon the premises, the landlord cannot divide a 

 rent accruing at one time into parts, and distrain first for a part and 

 afterwards for the residue. If, however, he distrain for the entire 

 rent, but from mistaking the value of the goods takes an insufficient 

 distress, it seems that a second distress for the deficiency will be lawful, 

 although there were sufficient goods on the premises to have answered 

 the whole demand at the time of the first taking ; and it is clear that 

 he may take such second distress upon goods which have come upon 

 the premises subsequently to the first taking, if in the first instance 

 he distrain all the goods then found thereon and for the entire 

 rent, the amount of which exceeds the value of the goods first taken. 



A distress for rent or other duties or services can be taken only 

 between sunrise and sunset ; but cattle or goods found damage-f easant 

 may be distrained at any time of the day or night. 



By the common law the remedy by distress was in general lost 

 upon the death of the party to whom it accrued. But the king and 

 corporations aggregate never die ; and as the law authorises a sur- 

 viving joint tenant to act as if he had been originally the sole owner, 

 he may distrain for rent or other services accruing in the lifetime of 

 his companion. 



The statutes of 32 Hen. VIII. c. 37, and 3 & 4 Will. IV. c. 42, have 

 extended the remedy by distress to husbands and executors in 

 respect of rent accruing due to their deceased wives or testators. 

 [RENT.] 



No distress can be taken for more than six years' arrears of rent ; 

 nor can any rent be claimed where non-payment has been acquiesced 

 in for twenty years, 3 & 4 Will. IV. c. 27. 



V. In what place a distress can be made. The remedy being given 

 ill respect of property, not of the person, a distress for rent or other 

 service could at common law be taken only upon the land charged there- 

 with, and out of which such rent or services were said to issue. 



But this restriction did not apply to the king, who might distrain 

 upon any lands which were in the actual occupation of his tenant, 

 either at the time of the distress or when the rent became due. 



The assumption of a similar power by other lords was considered 

 oppressive, and it was ordained by the statute of Marlbridge, that 

 no one should make distress for any cause out of his fee, except 

 the king and his ministers thereunto specially authorised. The 

 privilege of distraining in all lands occupied by the party chargeable, 

 is communicated by 22 Car. II. o. 6; 26 Geo. III. c. 87 ; 30 Geo. III. 

 c. 50; and 34 Geo. III. c. 75, to the purchasers of certain crown 

 rents. 



At common law if the tenant or any other person seeing the lord or 

 his bailiff come to distrain for rent or other service, drove the cattle 

 away from the land holden, they might be distrained off the land. Not so 

 when the cattle without being driven went off before they were actually 

 taken, though the lord or bailiff saw the <cattle upon the land (which 

 for some purposes is a constructive possession). Nor if after the view 

 the cattle were removed for any other purpose than that of preventing 

 a distress. On the other hand, cattle of which the lord or bailiff has 

 whilst they are on the land, although the tenant drove them 

 oft' purposely to avoid a distress, could not be distrained. 



Under 8 Ann. c. 14, and 11 Geo. II. c. 19, where a lessee fraudu- 

 lently or clandestinely carries off his goods in order to prevent a dis- 

 tress, the landlord may within five days afterwards distrain them as if 

 they had still continued on the demised premises ; provided they have 

 not been (bondjide) sold for a valuable consideration. 



And by the 7th section of the latter statute, where any goods 

 fraudulently and clandestinely carried away by any tenant or lessee, or 

 any person aiding therein, shall be put in any house or other place, 

 locked up or otherwise secured, so as to prevent such goods from being 

 distrained for rent, the landlord or his bailiff may, in the day time, 

 with the assistance of the constable or peace officer (and in case of a 

 dwelling-house, oath being also first made of a reasonable ground to 

 suspect that such good-i are therein), break open and enter into such 

 house or place, and take such goods for the arrears of rent, as he or 

 they might have done if such goods had been put in an open field or 

 place. 



To entitle the landlord to follow the goods, the removal must have 

 taken place after the rent became due, and for the purpose of eluding a 

 distress. It is not however necessary that a distress should be in 

 progress, or even contemplated. Nor need the removal be clandestine. 

 Although the goods be removed openly, yet if goods sufficient to satisfy 

 the arrears are' not left upon the premises, and the landlord is turned 

 over to the barren remedy by action, the removal may be by a jury 

 deemed fraudulent, and the provisions of these statutes will then apply. 

 The goods of a stranger or of an under-tenant may be removed at 

 any time before they are actually distrained upon, and cannot be 

 followed. 



Where two closes are let by separate demises and separate rents, 

 though such demises be made at the same time, and are even con- 

 tained in the same deed, a distress cannot be taken in one close for 

 both rents. 



If a rent-charge or rent-service also issue out of land which is in 



