No. 2448. Book 4, tit. 2, chap. 1, sec. 3. No. 2449. the buyer until the wheat was measured and separated from the mass. 2448.-3. By entry or reentry of lands, which is a kind of recaption, is meant the resumption or retaking possession of land which the party lately had. A celebrated writer(a) says, that the owner of such land, after being disseised, if he cannot reënter by fair means, may legally regain the possession thereof by force, unless he were put to the necessity of bringing his action by having neglected to reënter in due time, that is, twenty years. But this dictum, unsupported by any authority, may well be questioned, (b) for it is a universal principle, that whenever a man has an opportunity to apply to the law, for the redress of an injury, he is bound to invoke its aid, and not take the remedy in his own hands, which might lead to a breach of the peace. If the owner enters by force, he may be indicted for a breach of the peace; but he will retain the lawful possession of his estate, and the original wrong doer cannot maintain a civil action for such regaining possession, as far as regards any alleged injury to the house or land, or the expulsion, though he may perhaps maintain an action for any unnecessary personal injury which he may have sustained, or for any damage to his furniture which could have been avoided. SECTION 3.-OF THE ABATEMENT OF NUISANCES. 2449. When discussing the remedy for a nuisance in a preceding title, (c) we considered the right, which any one who was annoyed by it, had to remove it, and the remedy afforded by courts of equity will be considered under the head of equity.(d) (a) Hawk. B. 1, c. 28, n. 3, s. 1. (b) See Rex v. Scott, 3 Burr, 1698; King v. Wilson, 8 T. R. 357. (c) Ante, n. 2387. (d) Post, B. 5, part 1, tit. 3, c. 1, s. 2, § 1, art. 3, n. 3. No. 2450 Book 4, tit. 2, chap. 1, sec. 4. No. 2450. SECTION 4.-OF THE REMEDY BY DISTRESS. 2450. A distress is defined to be the taking of a personal chattel, without legal process, from the possession of the wrong doer, into the hands of the party grieved, as a pledge for the redress of an injury, the performance of a duty, or the satisfaction of a demand.(a) The thing seized is also called a distress. This remedy is coëval with the common law, and its origin appears to be concealed in the night of time. It probably was not fully established till some period during what are called the feudal times. When the feudal system prevailed in its fullest vigor, the reasons for which a distress can now be made, were sufficient to cause a forfeiture of the feud. In the course of time, this system of forfeiture was changed, and the law was mitigated so far, that the lord was entitled to seize the distress, and afterward to sell it. Though the law has been changed in this particular, still it is important to remember the origin of this remedy; for if it would be known, in any given case, whether at common law recourse may be had to a distress, to enforce the duties connected with a tenure, we have only to ascertain, whether, if the ancient law had continued unchanged, the tenement would have been forfeited by their non-observance. Although this rule is simple and easy of application, it may be well to illustrate it by one or two examples: if the landlord has aliened the seigniory or reversion, he is no longer a party to the tenure, and, therefore, as no forfeiture of the land can accrue to him, he cannot distrain; so that the distrainor must be entitled to the reversion when the distress is made; for the same reason if he has accepted a new tenant, no distress can be taken for the arrears of rent due from the ancient one. (a) 3 Bl. Com. 6. It No. 2451. Book 4, tit. 2, chap. 1, sec. 4. No. 2452. has however been held that if the tenant holds over, a distress may be made while he continues in posses sion. 2451. It is the opinion of a learned writer, (a) that this notion of distraining was derived from the civil law, which gave "the creditor the faculty of selling out of several pledges which were pledged to him, that which he chose to pay the obligation or discharge the claim which was due to him;" the words of the Pandects, which he cites, are creditoris arbitrio permittitur, ex pignoris sibi obligatis quibus velit distractis, ad suum commodum pervinere. (b) A considerable difference will easily be perceived between the Roman and our law on this subject. In the former the pignus and hypotheca were pledges delivered by the debtor, or taken by the creditor under particular stipulations; whereas the remedy of distress by the English law, which has been adopted, with some ameliorations, in many parts of the United States, of taking a pledge or security out of the hands of another, for the satisfaction of a demand, exists without his consent. 2452. In some of the states of the Union, the essential parts of the statute and common law of England, have been adopted in relation to distresses; this is the case in Pennsylvania, New York, New Jersey, Delaware, Indiana, Illinois, Maryland, and Virginia. (c) In Kentucky, Florida, Texas and Georgia, and perhaps some other states, the right of distress exists, but it is placed under some wise restrictions; the landlord must make application to a judge or other officer designated by the law, make oath that the rent is due, and obtain a warrant from him, by virtue of (a) Gilb. on Distresses, 2. (b) Dig. 20, 5, 8. The creditor has the faculty of selling, of several things which have been pledged to him, that which he may choose to satisfy his claim. (c) 3 Kent, Com. 472, 4th ed. No. 2453. Book 4, tit. 2, chap. 1, sec. 4. No. 2453. which a distress is made by a sheriff or constable. In Massachusetts, (a) Alabama, Mississippi, North Carolina, and Ohio, the right of distress does not seem to exist. And in North Carolina, it has been judicially declared to be of no force in the state. (b) The remedy in Louisiana is not the same, but the law gives a lien, in certain cases, on the goods of the tenant. (c) In the New England states, where they attach property on original or mesne process, the law of distress for rent, as practiced in England, does not exist.(d) 2453. A distress may be made for several purposes, but always to enforce an obligation either conventional or legal, or to prevent a wrong. 1. Cattle may be distrained damage feasant, but frequently the action of trespass is a preferable remedy. They cannot be so distrained by a person who has a mere possession and not a legal title to the land. They must be taken while doing damage, and not after it is done, or while they are off the land. After they have been distrained, the cattle must not be beaten, nor worked, nor used.(e) 2. By virtue of sundry legislative acts which give that remedy, a distress may be made of goods for the purpose of enforcing a duty, as to pay taxes. 3. The principal use of the remedy by distress is to enforce the payment of rent. In the discussion of the subject, it will be convenient to consider, 1, the kinds of rent for which a distress may be made; 2, the persons who may make it; 3, the goods which may be distrained; 4, the time when the distress may be made; 5, where it may be made; 6, the manner of making it, and of disposing of the goods distrained; and 7, the effect of a distress. But it must (a) 4 Dane's Ab. c. 110, art. 3, p. 126. (6) Dalyleish v. Grandy, C. & Norw. 22; Deaver v. Rice, 3 Batt. 431. (c) Civil Code of Lo. art. 2675-2679. (d) Kent, Com. 473, 4th ed. (e) 1 Chit. Pr. 656–659. No. 2454. Book 4, tit. 2, chap. 1, sec. 4, § 1, art. 1. No. 2454. be remembered that this is the remedy at common law, and as it has been altered by the English statutes, varied in some points in perhaps most of the states of the Union. § 1.—Of the rent for which a distress may be made. Art. 1.—Of the nature of the rent. 2454. A distress may, in general, be taken for any kind of rent in arrear, the detention of which, beyond the day of payment, is an injury to him who is entitled to receive it.(a) The rent must be reserved out of a corporeal hereditament, and must be certain in its quantity, extent and time of payment, or at least be capable of being reduced to a certainty.(b) When the rent is a certain quantity of grain, the landlord may distrain for so many bushels in arrears and name the value, in order that if the goods should not be replevied, or the arrears tendered, the officer may know what amount of money is to be raised by the sale, and in such case the tenant may tender the arrears in grain. (c) And so where the rent may be reduced to a certainty, as when on the demise of a grist-mill, the lessee was to render one-third of the toll, it was held the lessor might distrain for the rent.(d) But when the rent is not certain, and it cannot be reduced to a certainty, no distress can be made; as where by the agreement the lessee was to pay no rent, and in lieu of it, he was to make repairs; (e) or where the tenant agreed instead of rent to render "one half (a) 3 Bl. Com. 6. (b) Co. Litt. 96, a; Diller v. Roberts, 13 S. & R. 64; Wells v. Hornish, 3 Penna. R. 30. (c) 13 S. & R. 52. See Jones v. Grundrim, 3 W. & S. 531; Helvor v. Pott, 3 Penn. St. R. 179. (d) Fry v. Jones, 2 Rawle, 11. (e) Grier v. Cowan, Addis. R. 347. |