904 
DISTRESS. 
< rent, and a diftrefs is taken afterwards, it is wrongful. 
2 Injl. 107. 
A diftrefs of cattle mud be brought to the common 
pound, or be kept in an open place ; and, if they are put 
into a common pound, the owner is to take notice of it 
at his peril; but if, in any other open place, notice is to 
be given to the owner that he may feed them, and then 
if the cattle die for want of food, the tenant fhall bear 
the lofs ; and the landlord may diftrain again for his rent. 
Co. Lit. 47. Where one impounds cattle diftrained, he 
cannot juftify the tying them in the pound : if he ties a 
bead, and it is ftrangled, he mult anfwer it in damages. 
1 Salk. 248. If the perfon diftraining damage feafant put 
the diftrefs in a broken pound, and the diltrefs efcapes, 
he can have no action for the fame : it is otherwife it from 
a good pound, without his default, when he may have 
attion for the trefpafs. By 53 Hen. III. c. 4. 1 Phil. Sc 
Mary, c. 12. none fhall drive a diftrefs out of the coun¬ 
ty, on pain to be fined and amerced : and no diftrefs of 
cattle fhall be driven out of the hundred where taken to 
any pound, except to a pound overt in the fame county, 
and nol above three miles diftant; nor fhall any diftrefs 
be impounded in feveral places under the penalty of five 
pounds and treble damages. By 11 Geo. II. c. 19. per- 
1'ons diftraining for rent may impound the diftrefs on any 
convenient part of the land chargeable with the diftrefs. 
After a diftrefs is in the pound, it is faid to be in cujlodid 
iegis, fo that the owner of it hath no abfolute property 
therein ; and therefore he cannot fell or forfeit it, nor 
may the fame be taken in execution, &c. but it muff be 
as a pledge or means to help the party diftraining to his 
debt or duty. Co. Lit. 190. Cattle diftrained may not be 
nfed, becaufe by law they are only as a pledge, unlefs it 
■be for the owner’s benefit, by milking, See. Cro. Jac. 148. 
When a diftrefs is taken of houfehold goods, or other 
dead things, they are to be impounded in a houfe, or 
other pound covert; and if the diftrefs is damaged, the 
dilirainer muft anfwer it. Wood's Injl. 191. And they are 
to be removed immediately, except corn or hay, by 2 
Will. & Mary, c. 5. But if a landlord doth not remove 
goods immediately, but quits them till another day, 
during which time they are taken away, it is not a ref- 
cous, for want of poflefiion. 1 Nelf. 672. Where goods 
are unlawfully diftrained, the owner may refeue them 
before they are impounded, but not afterwards. Co. Lit. 
47. But the fafelt way is to replevy, as there are few 
cafes, in law, where a man is allowed to be his own 
judge, if any. If lands lie in feveral counties, a diltrefs 
may be made in one county for the whole rent. Co. Lit. 
154. And if a landlord comes into a houfe, and feizes 
upon fome goods as a diftrefs, in the name of all the 
goods in the houfe, this is a good feizure of all. 6 Mod. 
215- 
By 2 Will. Sc Mary, c. 5. if any diftrefs and fale be 
made where there is no rent due, the owner of the goods 
diftrained fhall recover double the value of the goods, 
and full colts. Alfo by the common law', if a lord or 
other perfon lhall diftrain feveral times for his fervice or 
rent, when none is in arrear, the tenant may have an ajfife 
defovent dijlrefs, &c. F. N. B. 176. Where a man is en¬ 
titled to diftrain for an entire duty, he ought to diftrain 
for the whole at once, and not for part at one time, and 
part at another. 2 Lutw. 1532. But if he diftrains for 
the whole, and there is not l'ufficient on the preniifes, or 
he happens to mittake in the value of the thing diftrain¬ 
ed, and fo takes an infufficient diftrefs, he, his executors, 
See. may take a fecond diftrefs to complete his remedy. 
17 Car. II. c. 7. \Burr. 590. 
Diilreires muft be proportioned to the thing diftrained 
for. By the ftut. of Marlbridge, 52 Hen. III. c. 4. if any 
man takes a great or unreafonable diftrefs for rent arrere, 
lie ftiall be heavily amerced for the fame. As if the land¬ 
lord diftrains two oxen for twelve pence rentj the taking 
of both is an unreafonable diftrefs. 2 Injl. 407. But if 
there were no other diftrefs nearer the value to be found. 
he might reafonably have diftrained one of them. 3 Comm. 
12. The remedy for exceffive diftrefies is, by a fpecial 
adtion on the ftat. of Marbridge ; for an adlion of tref¬ 
pafs is not maintainable upon this account, it being no 
injury at the common law. Fitzgib. 85. 4 Burr. 590. 
The ftatutes have made great alterations in the ancient 
law of diftrefs, particularly by impowering perfons who 
diftrain for rent of any kind, to fell the diltrefs for pay¬ 
ment of rent in arrear, if the tenant or owner fails to re¬ 
plevy with fufneient fecurity, withinfive days after taking 
of the diftrefs, and giving the tenant notice of the caufe ; 
in this cafe the conltable is bound to aftift, tire goods are 
to be appraifed by two fworn appraifers, and the over¬ 
plus, if any, left in the conftable’s hands for the ufe of the 
owmer. This improvement of the remedy by diftrefs, 
was firft introduced by 2 Will. & Mary, c. 5. with re- 
fpeiSt to rents due on demife, or contract; and, after¬ 
wards, by 4 Geo. II. c. 28. was extended to rents-feck, 
rents of aftife, and chief-rents. - Before thefe two itatutes, 
the remedy by diftrefs w'as very imperfedt; for the dif- 
trefs was merely taken nomine pan# to compel fatisfa&ion* 
and could not be fold or ufed for the profit of the perfon 
diftraining, except in cafe of the king and fome few other 
inftances. 
By 11 Geo. II. c. 19. if any tenant of lands or tene- 
ments lhall fraudulently carry away his goods to prevent 
diftrefs, the landlord may, within thirty days after, dif¬ 
train them wherever they ftiall be found, as if they had 
been on the premifes; but no fuch goods fhall be dif¬ 
trained, if fold bona Jide for a valuable confideration before 
feizure, to any perlon not privy to the fraud.' Tenants 
committing fuch fraud, or others aftifting, ftiall forfeit 
double the value of the goods carried off, to be recovered 
by attion of debt, &c. And where they fhall not ex¬ 
ceed fifty pounds value, the landlord may exhibit a com¬ 
plaint before two juftices of peace, who are to examine 
the faff, and enquire into the value of-tlie goods, and 
thereupon order the offender to pay double value, levi¬ 
able by diftrefs and fale ; and, for want thereof, commit 
the offender to the houfe of correction for fix months. 
Landlords, or their agents, may, wdth the afliftance of a 
conftable, feize any goods fraudulently concealed in any 
houfe, out-houfe, &c. And in cafe of a dwelling-houfe, 
on oath firft made to fome juftice, of reafon to fufpeCt that 
fuch goods are therein, may break open tiie fame, and 
diftrain them : they may alfo diftrain for rent and cattle, 
or ftock of their tenants, feeding in any common ; or corn, 
grafs, hops, fruit, &c. growing on the land, which they 
fhall cut, gather, cure, and lay up, when ripe, in any 
proper place, giving notice to the tenant within a week 
where lodged, and difpofe thereof towards the fatisfac- 
tion of the rent and charges ; the appraifement to be 
taken when cut or cured ; but, if after a diltrefs fo taken, 
before the product. be ripe and gathered, the tenant fhall 
pay the rent, and charges of the diftrefs, the faid diftrefs 
fhall ceafe. 
Perfons may fecure diftrefies lawfully taken, and fell 
them upon the premifes in like manner as may be done 
off the fame, by 2 Will. & Mary, feff. i>. c. 5. And any 
perfons may go to and from the premifes to view, ap- 
praife, buy, or take away, the goods of the purchafer; 
and, if a refcous be made of the diftrefs, the perfons ag¬ 
grieved fhall have the remedy giVen by the faid ftatute. 
Diftrefies made for rent juftly due, fhall not be unlawful, 
nor diftrainers be trefpaffers ab initio , for a'ny irregularity 
in the difpolition thereof; but the parties grieved to have 
fatisfadicn for fpecial damage, in an aCtion on the cafe, 
&c. But no tenant fhall recover by fuch action, if ten¬ 
der of amends hath been made before the aClion brought. 
And in all aftions of trefpafs, or on the cafe relating to 
the entry, diftrefs, or fale, made by landlords for rents, 
the defendants may plead the general iifue, and if the 
plaintiffs become non-fuit, &c. fhall recover double colts 
of fait. 
By 27 Geo. II. c. 20. juftices of peace, in all cafes, 
where 
