given (n); for the particulars of which we must have recourse to the statutes themselves: remarking only, that such distresses are partly analogous to the ancient distress at common law, as being repleviable and the like; and partly resemble the common law process of execution, by seizing and selling the goods of the debtor under a writ of fieri facias, of which we shall hereafter speak.

The following remarks will, for the most part, be restricted to the case of a distress for nonpayment of rent where the relation of landlord and tenant () subsists between the parties respectively distraining and distrained upon, and there is a reversion in the distrainor.

distrained.

2ndly; as to the things which may be distrained, (218) two general rules may imprimis be laid down, and a distinction must be taken. (1.) All chattels personal are liable to be distrained, unless particularly protected 2ndly. What things may be or exempted. Instead therefore of mentioning what things are distrainable, it will be easier to recount those which are not so, with the reason of their particular *exemption (p). (2.) Goods and chat[*77] tels upon the premises demised belonging to a stranger are distrainable, for otherwise a door would be opened to infinite frauds upon the landlord, and a stranger has his remedy over if by default of the tenant his chattels are distrained. A landlord accordingly may distrain upon the goods of an underlessee being upon the demised premises, although as between lessor and underlessee there is no privity. (3.) Also a distinction as regards the liability of goods to seizure must here be noticed between the case where a distress is put in (concerning which alone we now inquire), and that where an execution is levied. Should a judgment creditor of the tenant levy an execution upon his goods, the sheriff will be justified in seizing such goods and chattels only as belong to the tenant, and cannot lawfully seize those of a third person upon the premises.

In the case just put, if rent be due to the landlord, he should proceed (as will presently be shown at greater length) under the stat. 8 Ann. c. 14, s. 1, and, on demand made to the sheriff, will entitle himself to arrears not exceed ing one year's rent, which may be levied in addition to the execution money upon the tenant's goods. The County Court Act (19 & 20 Vict. c. 108) contains a provision (sect. 75) analogous to that of the statute of Anne. It enacts that where goods in a tenement for which rent is due are taken in execution

seq.

(n) See Paley on Conv., 5th ed., pp. 297 et

(0) See Yeoman v. Ellison, L. R. 2 C. P. 681.

(p) As to which see generally Co. Litt. 47; Simpson v. Hartopp, Willes, 512.

(218) When property is liable to be distrained for rent, the general rule in this country is, that all the movable goods and chattels found upon the premises may be taken, whether they are the goods of the tenant, the under-tenant or those of a third person. Spencer v. McGowen, 13 Wend. 256; Kessler v. McConachy, 1 Rawle, 435; Howard v. Ramsay, 7 Harr. & J. 113; Davis v. Payne, 4 Rand. 332; Reeves v. McKenzie, 1 Bailey, 497; Stevens v. Lodge, 7 Blackf. 594; Hoskins v. Paul, 4 Halst. 113; Trieber v. Knabe, 12 Md. 491.

The statutes of many of the States provide for the exemption of specified articles of a certain value from levy and sale on execution or by distress for rent.

So too, by the common law, many things were exempt from distress. Among these are articles sent to a person to be worked upon or worked up by him in the exercising of his trade, or to be deposited or sold as by sending them to an auctioneer or a commission merchant. Simpson v. Hartopp, Willes, 512; 1 Smith's Lead. Cas. 526 (727); Hoskins v. Paul, 4 Halst. 113; Connah v. Hale, 23 Wend. 462; Briggs v. Large, 30 Penn. St. (6 Casey) 287; Owen v. Boyle, 22 Me. 47.

under the warrant of a county court, the landlord may claim the rent due to him by delivering a notice to the bailiff making the levy, and such bailiff shall then, in making the levy, distrain also for the rent so claimed (q).

Generally speaking then, whatsoever goods and chattels a landlord finds upon the demised premises, whether they in fact belong to the tenant or to a stranger, are distrainable by him for rent. With regard, however, to

a stranger's beasts which are found on the tenant's land, the following [*78] points are to be noticed. If they are put in by consent of the owner of the beasts, they are distrainable immediately afterwards for rent in arrear by the landlord (r). So also if a stranger's cattle break the fences, and commit a trespass by coming on the land, they are distrainable immediately by the lessor for his tenant's rent, as a punishment to the owner of the beasts for the wrong committed through his negligence (s). But if the lands were not sufficiently fenced so as to keep out cattle, the landlord cannot distrain them, till they have been levant and couchant (levantes et cubantes), on the land; that is, have been lying down and rising up on the premises for a night and a day, without pursuit made by the owner of them (t); and then the law presumes, that the owner may have notice whither his cattle have strayed, and it is his own negligence not to have taken them away. Yet, if the lessor or his tenant were bound to repair the fences and did not, and thereby the cattle escaped into their grounds, without the negligence or default of the owner; in this case, though the cattle may have been levant and couchant, yet they are not distrainable for rent, till actual notice has been given to the owner that they are there, and he neglects to remove them (u): for the law will not suffer the landlord to take advantage of his own or his tenant's wrong (x).

From the operation of the ordinary rule that a distress may be levied upon all goods being upon the demised *premises, certain things have been for special reasons excepted:

[*79] 1. At common law things affixed to the freehold, and which thus become part of it, cannot be distrained for rent (1), because that cannot be a pledge which cannot be restored in statu quo to the owner, and a part of the freehold is not severable from it without some detriment being caused to the thing itself in its removal. (2) Because what is fixed to the freehold is part of the thing demised, and the nature of the remedy by distress is not to resume part of the thing itself for the rent, but only to take those things which are brought upon the premises by way of satisfaction for it. (3) A third reason assigned is that the freehold itself would be injured by the removal of that which is affixed

lease; for the lord has nothing to do with the land or the fences, and so it is not material to him whether the fences are repaired or not; but it is otherwise of a landlord, for he himself ought to repair, or to provide that his tenants repair them, else he would take advantage of his own wrong." But "if the cattle escape into the land without any defect of the fences, or where the tenant of the land in which they are distrained is not bound to repair the fences, through the defect of which the cattle escape and are distrained, it is immaterial to the lord or landlord whether they are levant and couchant or not." Poole v. Longuevill, 2 Saund. 289; see also Singleton v. Williamson, 7 H. & N. 410.

to it. Such things, therefore, as caldrons, windows, doors, and chimney-pieces, are not distrainable, for they savour of the realty. (219) For this reason also corn growing could not be distrained: till the stat. 11 Geo. 2, c. 19, s. 8, empowered landlords to distrain corn, grass, or other products of the earth, and to cut and gather them when ripe. So charters concerning land are not distrainable, because in contemplation of law they are parcel of the freehold. Questions of this kind often arise in reference to machinery; and in any such case the difficulty usually lies in determining whether the machiney when fixed was parcel of the freehold. Now this is a question of fact depending [*80] principally on two *considerations; first, the mode of annexation to the soil or fabric of the house, and the extent to which the chattel is united thereto, as whether it can easily and safely be removed without injury to itself or to the building. Secondly, the question depends on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, or merely for a temporary purpose, or the more complete enjoyment and use of the thing annexed as a chattel (y).

2. Things sent or delivered to a person exercising a particular trade, to be kept, carried, wrought or manufactured in the way of his trade; for instance goods pledged with a pawnbroker (z), or on the premises of an auctioneer for sale (a), a horse standing in a blacksmith's shop, materials sent to a weaver to be wove, to a fuller to be cleaned and dyed, or cloth to a tailor to be made up, privileged for the sake of trade and commerce, which could not be carried on if such things, under such circumstances, could be distrained for rent due from the person in whose custody they are. Such things are privileged on the ground of public policy, to encourage a feeling of confidence in those who would bail their goods for skill to be exercised upon them, and are supposed in common presumption not to belong to the owner of the house, but to his customers. (220) If the goods are sent to the premises for the purpose of being dealt with in the way of the party's trade, and are to remain upon the premises until that purpose is answered and no longer, they are not distrainable, but if they are sent thither for the purpose of remaining there merely at the will of the owner, no work having to be done upon them, they will be distrainable, and the party claiming exemption is bound clearly to show that he is within one or other of the *acknowledged exceptions to the rule, which allows

[*81] all such things as are on the demised premises to be distrained (b).

3. Goods at an inn whilst on the premises cannot be distrained (c). (221) (a) Brown v. Arundell, 10 C. B. 54. (b) Parsons v. Gingell, 4 C. B. 545; Smith v. Dearlove, 6 Id. 132.

(y) Hellawell v. Eastwood, 6 Exch. 295; Bishop v. Elliott, 11 Exch. 113; 10 Id. 496; Haslitt v. Burt, 18 C. B. 893.

(z) Swire v. Leach, 18 C. B. N. S. 479.

(c) Crosier v. Tomkinson, 2 Ld. Ken. 439.

(219) Things which are affixed to the freehold, although belonging to the tenant, cannot be distrained so long as they remain affixed to the premises. Reynolds v. Shuler, 5 Cow. 323; Darby v. Harris, 1 Q. B. 895.

(220) The American cases are in harmony with the text. Hoskins v. Paul, 4 Halst. 113; Connah v. Hale, 23 Wend. 462; Briggs v. Large, 30 Penn. St. 287; Himely v. Wyatt, 1 Bay. 102; Owen v. Boyle, 22 Me. 47; Brown v. Sims, 17 S. & R. 138.

(221) Horses and carriages standing temporarily at an inn cannot be distrained for rent. Co. Litt. 47, 7. So of a horse placed in the hands of a livery stable keeper in the way of his business. Youngblood v. Lowry, 2 McCord, 39. So of cattle on the demised premises when they were there to be pastured for hire. Cadwalader v. Tindall, 20 Penn. St. 422.

4. The implements of a man's trade or profession, as the axe of a carpenter, the books of a scholar, and the like, are privileged from distress for rent, if they be in actual use at the time, or if there be any other sufficient distress on the premises, but not otherwise (d). They are said to be thus privileged sub modo for the sake of the public, because the taking them away would disable the owner from serving the commonwealth in his station (e). (222)

5. Beasts of the plough (averia caruca) and sheep, which improve the land, are also privileged if there be other sufficient distress upon the premises (f). And perhaps the true reason, why these and the tools of a man's trade were privileged at the common law, was because the distress was originally intended to compel the payment of the rent, not as a satisfaction for its non-payment: and therefore, to deprive the party of the instruments and means of paying it, would counteract the very end of the distress (g).

6. A thing which is in the custody of any person and being actually used by him, cannot be distrained, because the peace would be endangered if a distress under such circumstances were allowed; therefore a horse whilst a *man is riding him, or an axe in a man's hand cannot be distrained for rent (h).

[*82] 7. Nothing is distrainable for rent, which may not be rendered again in as good plight as when it was distrained: for which reason milk, fruit, and the like, cannot be distrained, a distress at common law being only in the nature of a pledge or security, to be restored in the same plight when the debt is paid. (223) So, anciently, sheaves or shocks of corn could not be distrained, because some damage must needs accrue in their removal, but a cart loaded with corn might; as that could be safely restored. But now by statute 2 Will. & M. sess. 1, c. 5, corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distrained as well as other chattels (i), but produce which has been sold by the sheriff under an agreement by the purchaser that it shall be used and expended on the land cannot be distrained (k).

8. As every thing distrained is presumed to be the property of the wrongdoer, it will follow that such things wherein no man can have an absolute and valuable property (as cats and animals feræ naturæ (1)) cannot be distrained. (224) Yet if deer (which are feræ naturæ) are kept in a private inclosure for the pur

(d) Simpson v. Hartopp, Willes, 512.

(e) In Nargatt v. Nias, 1 E. & E. 439, a question arose as to the form of action appropriate for taking tools of trade, there being on the premises other goods of sufficient value which might be distrained. And Lord Campbell there said that the prohibition against distraining such things is by force of the ancient common law of England (Co. Litt. 47 a), and was not introduced by any statute. (f) Keen v. Priest, 4 H. & N. 236; 51 Hen. 3, st. 4.

(g) Per Lord Mansfield, Hutchins v. Chambers, 1 Burr. 588.

(h) Co. Litt. 47 a.

See Storey v. Robinson, 6 T. R. 138; Field v. Adames, 12 Ad. & E. 649; which were cases of distress damage feasant.

(i) See also stat. 4 Geo. 2, c. 28, s. 5, as to rent-seck.

(k) Stat. 56 Geo. 3, c. 50, s. 6. (1) Dogs, it would seem, are distrainable, Woodf., L. & T. 9th ed. 402.

(222) See the note to Simpson v. Hartopp, 1 Smith's Lead. Cas. 526 (727).

(223) Cocks and sheaves of corn are not distrainable because they cannot be removed and returned without injury or loss. Given v. Blann, 3 Black f. 64. So of green hides which have been placed in a vat to be tanned, since they cannot be removed without injury or putrefaction. Bond v. Ward, 7 Mass. 123; so of the carcasses of slaughtered animals. Morley v. Pincombe, 2 Exch. 101.

(224) Dogs are regarded as property and are distrainable. See note to Simpson v. Hartopp, 1 Smith's Lead. Cas. 526 (727); Taylor's Land. and Ten., § 591.

pose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent (m).

9. Goods which are in the custody of the law are in general not distrainable for rent, for it would be a contradiction in terms to say-that what the law had laid hands upon could by legal process be removed out of its grasp. (225) *Hence goods which have been taken in execution cannot be distrained [*83] for rent. In this particular case, however, the statute 8 Anne, c. 14 (n), already briefly noticed, applies to entitle the landlord of premises whereon an execution is levied to one year's rent (if so much be in arrear) before removal of the goods seized by the sheriff. Where indeed the demised premises are let at a weekly rent, or for any other term less than a year, the right of the landlord to claim for rent in arrear is restricted (o). Also, by stat. 14 & 15 Vict. c. 25, s. 2, crops seized and sold under a writ of execution, so long as they remain on the land, are, in default of other sufficient distress, liable to the landlord for rent which may become due to him after such seizure and sale, and to the remedy by distress for recovery of such rent.

The rule which obtained at common law exempting from distress chattels in custodiâ legis has further been relaxed by various statutory provisions below cited (p).

tress may be

3rdly. Let us consider how a distress may be taken, disposed of, or avoided. In the first place, then, a distress for rent in arrear must be made by day (q). 3rdly. How dis. And, when a person intends to make it, he must, by himself or his bailiff, armed with a distress warrant, enter on the demised taken, disposed of, or avoided. premises and make a seizure, formerly during the continuance of the lease, but now (r), if the tenant holds over, the landlord may distrain within six months after the determination of the lease; provided his own title or interest, as well as the tenant's possession, continue at the time of the distress (s). (226) *A lessor not finding sufficient distress on the premises, [*84] formerly could resort no where else, and therefore tenants, who were knavish, made it a practice to convey away their goods and stock fraudulently from the houses or lands demised, in order to cheat their landlords. (227) But

(0) Stat. 7 & 8 Vict. c. 96, s. 67.

(p) See, in regard to process issuing from the County Court, 19 & 20 Vict. c. 108, s. 75; from the Court of Admiralty, 24 & 25 Vict. c. 10, s. 16. See also as to the case of Bankruptcy, 12 & 13 Vict. c. 106, s. 129, & 33 Vict. c. 71, s. 34; and in reference to the wind

(225) It is a well-settled rule in the law of this country that goods in the custody of the law cannot be distrained. Property in the hands of a sheriff, by virtue of a replevin process, is not distrainable. Milliken v. Selye, 6 Hill, 623. So of property rightfully in the hands of a receiver. Noe v. Gibson, 7 Paige, 513.

(226) A distress cannot be taken until the next day after the rent becomes due, as the tenant is entitled to the whole of the last day during which he may pay the rent. Gano v. Hart, Hardin (Ky.), 297.

(227) At common law a distress can only be made upon some part of the demised premises out of which the rent issues. Burr v. Van Buskirk, 3 Cow. 263, 269; Pemberton v. Van Rensselaer, 1 Wend. 307, 309; Brown v. Duncan, Harper, 338. Goods fraudulently removed from the town, for the purpose of avoiding a distress for rent, may be pursued by an officer having a valid distress warrant, and the goods may be seized under such warrant. Christman v. Floyd, 9 Wend. 340.