DISTRESS NOT INSEPARABLE FROM RENT-SERVICE. 281 



6 & 7 Will. IV. c. 71, aud afterwards obtaining judgment in an aetion 

 of replevin, is not entitled to double costs under 11 Geo. II. c. 19, s. 22 ; 

 and that neither, consequently, is he entitled to "the lull and reason- 

 able indemnity as to costs," substituted for double costs by the 5 & 6 

 Vict. c. 97, s. 2, And per Maide J. : " The owner of the rent-charge, in 

 distraining for it, may act and demean himself iu relation to the distress 

 as any landlord may for arrears of rent reserved on a common lease for 

 3eurs ; that is, he may, without becoming a trespasser ah initio, conduct 

 himself in a manner not strictly conformable with the proper mode of 

 managing a distress" (/7>.). 



The right of distress is not so inseparahJe an incident to a rent service 

 that it cannot be postponed ; and therefore where one A, a mesne 

 landlord, let premises to an under-tenant by a written agreement which 

 provided, among other things, that no distress should be made till A 

 had produced the receipt of the superior landlord, and A afterwards 

 distrained for his rent without producing such receipt, it was held 

 by the Court of Common Pleas, in an action by the under-tenant 

 against the broker who executed the distress, that A's right was 

 postponed, and that the defendant was liable as a trespasser {Giles v. 

 Spencer). And the fact that some time after the first agreement, A 

 and his under-tenant (who entered under it) agreed by parol to sub- 

 stitute other premises for those originally taken, to be held on the 

 same terms, constituted a new contract, aud not an alteration of the 

 terms of the first {ib.). 



A distress can only he made hij law, in respect of a fixed ascertained 

 rent reserved out of land {Gardiner v. Williamson). It frequently 

 happens that j^ersons enter and occupy at a rent to be fixed in future. 

 In such cases no distress can be made, but an action may be brought 

 for the rent on a quantum valehat {Hanwrton v. Stead). No precise 

 form of words is necessary for a distress ; and where a landlord laid his 

 hand on a lathe, and said, " I will not suffer this or any of the things 

 to go off the premises till my rent is paid," it was held that the distress 

 Avas sufficiently commenced to entitle him to the article in question 

 ( Wood V. Nunn.) 



Distress rendered illegal hy improper time of talcing it. — In two cases, 

 in one of which the distress was taken at nearly ^ight o'clock in the 

 evening, when by the almanac the sun set just after seven, and in the 

 other it was taken between two and three o'clock on the morning of a 

 day on which, by the almanac, the sun rose shortly before half-past 

 four, and there was no other evidence upon the point, nor any evidence 

 as to whether in either case it was dark when the distress was taken, 

 but the jury in both cases found that it was taken between sunset and 



