296 TRREGULAR DISTEESS. 



latter in September. In Wn'f/I/f v, Dcivcs, a tenant's growing crops 

 taken in execution and sold and remaining on the premises a reasonable 

 time for the purpose of being reaped, were held not to be distrainable 

 by the landlord for rent become due after the taking in execution. 

 Such crops having been so taken, sold, and left on the premises, and 

 the arrears of rent paid, pursuant to stat. 8 Anne, c. 14, s. 1, the land- 

 lord could not distrain them for rent subsequently due, on the ground 

 that the purchaser had not entered into the agreement ^Yith the sheriff 

 (to use and expend the produce in a ])roper manner) directed by stat. 56 

 Geo. III. c. 50, s. 3. Nor was he entitled to presume, from the absence 

 of such agreement, that the straw of such crops was sold for the purpose 

 of being can-ied off the land contrary to sect. 1. The question for the 

 Court was, whether the plaintiff, by virtue of a sale from the sheriff, 

 was entitled to the crops discharged from the landlord's right of 

 distress for rent accrued due subsequently to the sale. 



The subject of an irregular distress was very much considered in 

 Rodgers v. Par'ker, which settled that 11 Geo. II. c. 19, s. 19, only 

 entitles a tenant to recover in an action for an irregularity in dealing 

 with a distress where actual damage is i^roved. 



A distress was taken for rent, and goods, instead of being retained 

 for the five days, were sold a day too soon, for which the plaintiff 

 brought an action ; but no evidence was given that the plaintiff had 

 sustained any damage thereby, and a verdict for the defendant, under 

 Cressurll J.'s direction, was upheld by the Court of Exchequer on the 

 authority o? Bodgers y. Parker, as the 11 Geo. II. c. 10, s. 19, only 

 entitles the tenant to recover in an action for an irregularity in dealing 

 with a distress where actual damage is proved (Lucas v. Tarleton). 



A distress can onlij he hi/ law in respect of a fixed ascertained roit 

 reserved out of the land, and therefore where, as in Gardner v. William- 

 son, a lease of a homestead and tithes was granted at an entire rent, 

 and it was void as to the tithes, because it was not under seal, it was 

 held that a distress for all arrear of rent was altogether unlawful, because 

 there was no fixed certain rent reserved in respect of the homestead. 



In Meggison v. Ladg G lam is, where the defendant in replevin being 

 the owner of land and also the lessee of the tithe, which had been com- 

 muted under 6 & 7 Will. IV. c. 71, agreed by parol to demise to the 

 plaintiff the land " tithe free " at a certain yearly rent of £400, and 

 then entered and made a distress for one year's rent in arrear, it was 

 submitted by the plaintiff's counsel, on the authority of the above 

 case, that such agreement to demise was meant as a demise both of the 

 tithe and the lands at that entire rent, and since the demise was not 

 by deed, the tithe did not pass ; consequently there was no certain rent 



