2Si FRAUDULENT TvEMOYAL OF GOODS. 



coaciiv in the observations of Jlatile J. in Thomas v. Harris, that the 

 rational interpretation of this remedy is to enable the landlord to get 

 what is dne for rent and costs, the amount of wliicli there can be no 

 difficulty iu ascertaining." 



^-1 distress can only he made letween sunrise and sunset ; and it was 

 held in Tifd'Ier v. Prentice that in pleading a tender of rent on the 

 land, it must be shown that the tenant was on the land time enough 

 before sunset to have counted the money. A distress must be made on 

 the land from which the rent issues ; but where a farm adjoins a high- 

 way, goods standing on such highway within the middle of it, and on 

 that part next to the demised premises, may be distrained {Hodyes v. 

 L(urrence). "Where a landlord distrains for more than is due for rent, 

 an action on tbe case lies, though the goods distrained are of less value 

 than the rent really due ; and it is no defence that after distress, and 

 notice thereof, and before the sale, the landlord served a second notice 

 on the tenant stating the amount really due, and that the distress was 

 taken for that amount only, and would be sold unless that amount was 

 paid {Taylor v. Henniker). A landlord cannot l)reak open yates or break 

 down enclosures to make a distress, but he may open an outer door by 

 turning the key, lifting the latch, or drawing back the bolt (Ryan v. 

 Shilcock). But it was doubted in the same case whether, if the outer 

 door is broken open, the distress is void. 



The 7th section of 11 Geo. II. c. I'J gives power to the landlord — 

 where yoods fraudulently carried away by the tenant, are placed in any 

 " house, barn, or stable,'' &c., locked up so as to prevent such goods 

 " from being taken and seized as a distress for arrears of rent " — " to 

 break open and enter into such house, barn, and stable," &c. It was 

 decided in Rich v. Wooley that a plea under this section, justifying the 

 breaking open a lock to distrain cattle which have been fraudulently 

 removed to elude a distress for rent, must aver that a constable was 

 present when the lock was broken open. Patteson J. observed upon 

 it, in Broivn v. Glenn (whicli settled that a landlord cannot break open 

 the outer door of a stable, though not within the curtilage, to levy an 

 ordinary distress for rent) : " The inference appears to be that the 

 right of the distrainor to break open the door of a stable does not exist 

 irrespectively of that provision." And Lord Cami)bell C.J. considered 

 that " this statute afforded a clear inference that, irrespective of the 

 matters therein provided for, the outer door of a barn or stable could 

 not be broken open for the purpose of executing an ordinary distress. 

 This doctrine is at least not novel ; it was acted upon by Lord Hard- 

 iricke ; and his decision is cited by Mr. Serjeant Williams, in his note 

 to Poole V. Lonyueville. In Penton v. Brown it was decided on 



