D I S T 
Tier part; but this may not be till the partition is made. 
Bro. 45. If one joint tenant make a gift in tail of the 
land, referving a certain rent, and the rent be in arrear, 
he may not diftrain the beads of the other joint tenant. 
33 Hen. VI. c. 85. But if A. and B. are tenants in com¬ 
mon, and A. leafes his moiety to C. for years, rendering 
rent, and C. leafe it to B. if the rent is behind, A. may 
take a diftrefs of the cattle of B. his fellow<-tenknt in com¬ 
mon. 7 Rep. 23. Moors 58. 
To juftify taking a diftrefs, the party mud be fure he 
hath good caufe to didrain ; that he have power to take 
the didrefs, and from the perfon from whom he takes 
it; that the thing, for the quality of it, be didrainable, 
and he didrain it in due time and place. He who takes 
a didrefs for another, ought to have good warrant for do¬ 
ing it; and mud do it in his name : and a bailid'or fer- 
vant may didrain for his mader. A didrefs ought to 
be made of fucli things whereof the (herid'may make re¬ 
plevin, and deliver .again in as good plight and condition 
as they were at the time of the taking. Co. Lit. 47. 
Didreffes are to be of a thing valuable, whereof fome- 
body hath a property; things ferae nature? f as dogs, co¬ 
nies, See. may not be didrained. 1 Rol. Air. 66 4. It is 
the fame of cattle of the plough, beads of hulbandry, 
flteep, or horfes, joined to a cart, with a rider upon it. 
1 Vent. 36. This means a didrefs for rent, &c. contra of dif¬ 
trefs damage feafant. Sheep are equally privileged with 
■ averia carucae, and cannot be taken if any other didrefs 
can be found. 2 Inf. 133. But it has been adjudged that 
beads of the plough may be taken for the poor’s rate, 
under 43 Eli-z. becaufe the remedy given by that and 
other datutes for compelling the payment of particular 
rates or fums of money, though called a didrefs, is, in 
effect, an execution. 1 Burr. 579. 
A horfe with a rider upon his back, or a horfe in an 
?nn, or put into a common ; an axe in a man’s hand, cut¬ 
ting down wood, or any thing a perfon carries about him ; 
utehfils and indruments of a man’s trade or profedlon, or 
the books of a fcholar; corn in a mill, or goods in a 
market to be fold for the ufe of the public ; materials 
in a weaver’s fhop for making of cloth ; another perfon’s 
garment in the houfe of a taylor, &c. are not didrainable ; 
nor is any thing that is fixed to the freehold of a houfe, 
•as a furnace, doors, windows, boards, See. Co. Lit. 47. 
2 Danv. Abr. 461. 
Deer in a private inclofure maybe didrained. 3 Comm. 8. 
Some have thought that a horfe on which one is riding 
may be didrained for damage feafant. 2 Keb. 596. but 
the opinion was extra-judicial, and may be quedioned; 
for the cafe in 7 Edw. III. Fitz. Ab. Avowry 199. are 
directly contra. Some alfo think that horfes drawing a 
cart laden with corn, though one is riding in the cart, 
may be didrained for rent; and for that purpofe may be 
fevered from the cartj if the perfon didraining doth not 
choofe to take the cart with the corn alfo ; all of which, 
as it feems, are equally liable to the didrefs. 2 K<f. 529. 
Raym. 181. If ferrets and nets in a warren be taken da¬ 
mage feafant, it is good ; but if they are in the hands of 
a man, they cannot be didrained, any more than a horfe 
an which a man is ; nor can they be didrained if they 
are out of the warren. 2 Edw. II. Avowry 182. 
Goods, cattle, not of the plough, See. (heaves of corn; 
corn in t;he draw, or threihed ; and carts with corn, (but 
not vibtuals ;) hay in a barn, or ricks of hay ; money in 
a bag fealed, though not out of a bag, &c. may be dif- 
tfained for rent: and fo may cattle or goods driving to 
market, if put. into a pafture by the way. Co. Lit. 47. 
Mod. 385. Beads of the tenant, feeding on commons or 
v/aftes, appendant or appurtenant to the demifed pre- 
jnifes, may be didrained for rent. 3 Comm. 11. Beads 
that efcape into the tenant's ground, may be didrained 
for rent, though they have not been levant and couchant. 
1 Inf. 47. This doftrine has been objected to as too ge¬ 
neral; and feveral diftinbtions are taken, the fum of 
■which feems to be, that if a ftranger’s beads efcape into 
1 
HESS. 903 
another’s land, by default of the owner of the beads, as by 
breaking the fences, they may be didrained for rent imme¬ 
diately, without being levant or couchant; but, that if 
they efcape there by default of the tenant of the land, 
as for want of his keeping a fufficient fence, then they 
cannot be didrained for rent or fervice of any kind, till 
they have been levant and couchant; nor afterwards by 
a landlord for rent on a leafe, unlefs, on notice, the owner 
of the beads negleffs to remove them : though it is faid 
that fuch notice is not neceffary, where the didrefs is by 
the lord of the fee for an ancient rent, or by the grantee 
of a rent charge. 2 Lutw. 1573. 
If A. brings yarn to his neighbour’s houfe to weigh, it 
cannot be didrained by the lord, is Edw. 111 . Avowry 216. 
for the property of drangers is privileged front didrefs 
for the fake of trade and commerce. 3 Burr. 1498. On 
the quedion whether a perfon’s chariot, which dood at 
a common livery dable, could be didrained for rent due 
from the keeper of the livery dable ; and the court, after 
two arguments, appearing to be drongly inclined in fa, 
vour of the didrefs, the owner of the chariot declined 
bringing the quedion to a third argument. The goods 
of a carrier are privileged, and cannot be didrained for 
rent, though the waggon wherein loaded, is put into the 
barn of a houfe, &c. on the road. 1 Salk. 249. By 2 Will. 
& Mary, c. 5. (heaves or cocks of corn, or corn loofe or 
in the draw, or hay in any hovel, dack, or rick, or other- 
wife on the land, may be didrained for rent on demife, 
leafe, or contract. At common law, corn growing could 
not be didrained, becaufe it adheres to the freehold ; but, 
by 11 Geo. II. c. 19. landlords are impowered to didrain 
all forts of corn, grafs, or other prodmft, growing on the 
edate demifed, and to cut and gather them when ripe. 
Didreffes for rent are to be reafonable, and not excef- 
five ; and not to be taken in the king’s highway, or the 
common dreet; or in the anciertt fees of the church, jr 
Hen. III. dat. 4. 52 Hen. III. c. 1. &c. 9 Edw. II. c. 9. 
except in cafe of an amercement in the leet. All dif- 
treffes for rent mud be made on the premifes, by the 
common law. And, by 8 Anne, c. 14. if any tenant frau¬ 
dulently removes goods from off the premifes, the land¬ 
lord may in five days feize fuch goods wherefoever found, 
as a didrefs for the rent in arrear, unlefs the goods are 
fold for a valuable confideration before the feizure. By 
11 Geo. II. c. 19. thirty days are allowed. And, whereas 
at common law, for rent due the lad day of the term, the 
leffor could not dillrain ; becaufe the term ended before 
the rent was due, and the leffee had the whole day to 
pay it; nor where the leffee held over his term, for rent 
incurred during the term ; now, by 8 Anne, c. 14. where 
leafes are expired, a didrefs may be.taken, provided it 
be done within fix months, and during the landlord’s 
title and tenant’s poftellion. 
Didreffes for fervices are to be on the land ; but for an 
amercement in a leet, the diftrefs may be taken any where 
within the hundie'd, as well out of the land, as on it. 
wherever the cattle are of him that is amerced; for the 
amercement charges only the perfon, and not the land ; 
and for this a diftrefs may be taken in the high dreet. 
2 Danv. Abr. 644. The lord cannot diftrain for amerce¬ 
ments in a court-baron without a prefeription, though 
he may in the leet; and the goods and cattle of another 
may not be taken in diftrefs on my ground, for an amerce¬ 
ment, See. fet upon me in a court-leet or court-baron. 
12 Hen. VII. c. 13. For fervices a diftrefs cannot be taken 
but where the fervices are certain, or may be reduced to 
a certainty. Co. Lit. 96. 
All didreffes mud be made by day, unlefs in the cafe 
of damage feafant; an exception allowed left the beads 
(liould efcape before they are taken. 1 Inf ■ t^z. Where 
a landlord comes to diftrain cattle, which he lees on the 
tenant’s ground, if the tenant, or any other, to prevent 
the diftrefs, drives the cattle off the land, the landlord 
may make frefti purfuit, and didrain them ; though, if 
before the diftrefs, the owner of the cattle tenders his 
reuta 
