No. 2472.

Book 4, tit. 2, chap. 1, sec. 4, § 5, art. 1.

No. 2473.

§ 5. Of the place where a distress may be made. 2472. A distress may be taken either on the land or off the land.

Art. 1.-On the land.

2473. When a distress is taken for the arrears of a duty arising out of a tenure, or charge upon land, it may be seized upon any part of the land out of which such duty issues, or on which it is chargeable, and the entire rent is chargeable on every part of the land; where, therefore, there is a lease of a tract of land, which is afterward held by several tenants, the lessor or landlord may distrain for the whole rent upon the land of any of them.(a) But the thing seized must be upon the land, and not merely attached to it by a rope; as a barge floating in a river, attached to the leased premises by a rope, is not liable to distress. (b)

It follows, from the principle already laid down, that if two separate pieces of land are let by two separate demises, although both are contained in one lease, a joint distress cannot be made for them, for this would be to make the rent of one issue out of the other.(c) But when lands lying in different counties are let together by one demise, at one entire rent, and it does not appear that the lands are not separate from each other, one distress may be made for the whole rent. (d)

When there is a house upon the leased premises, the distress may be made in the house; an outer door or other inlet cannot be broken to make a distress, but if either be open, an inner door may be broken for the purpose, taking care, in all cases, first to make a demand, and also not unnecessarily to do more damage than is requisite.(e)

No. 2474.

Book 4, tit. 2, chap. 1, sec. 4, § 5, art. 2.

No. 2474.

Art. 2.-Off the land.

2474. At common law, when the duty arises out of a tenure, and the lord, coming to distrain, sees the beasts upon the land, and before he can seize them, the tenant drives them off, the lord may follow the cattle freshly into any place, even a public highway, to which they are driven, and there distrain them. This is on account of the fraud of the tenant, for, if the cattle go away of their own accord, he cannot pursue and take them.(a)

The English statutes of Ann. and George, (b) the principles of which have been incorporated in the laws of several states, provide that if any lessee shall fraudulently or clandestinely carry off his goods from the premises demised, in order to prevent the landlord's distress, the landlord may, within thirty days afterward, distrain them as if they had continued on the premises, provided they be not sold, within that time, for a valuable consideration and without notice.

To bring a case within the act, the removal must take place after the rent becomes due; it must be secret and not made in open day; for a removal made openly cannot be said to be clandestine within the meaning of the act. (c) It has, however, been made a question whether goods are protected that were fraudulently removed the night before the rent became due.(d)

Though the landlord may distrain upon the goods of a stranger on the demised premises, unless they are exempted for some of the causes above mentioned; because he is not required to make any discrimination between such goods and those of his tenant, when the

(a) 11 Hen. VII., M. 11, p. 4.

(b) 8 Ann. c. 14, s. 2; 11 Geo. II., c. 19, s. 1 and 2.

(c) Watson v. Maine, 3 Esp. N. P. C. 15; Grace v. Shively, 12 S. & R.

(d) Furneaux v. Fotherby, 4 Camp. 135.

No. 2475.

Book 4, tit. 2, chap. 1, sec. .4, 6, art. 1, 2.

No. 2477.

latter appears to be the owner,(a) yet the goods of a stranger are liable only while they are on the premises.(b)

§ 6. Of the manner of making a distress.

2475. Under this head will be considered, 1, by whom the distress is to be made; 2, the form of seizing; 3, of the quantity of goods to be taken; 4, of the proceedings after the seizure.

Art. 1.-By whom the distress is to be made.

2476. At common law a distress for rent may be made either by the person to whom it is due, or, which is the preferable mode, by a constable or other officer, properly authorized by him as his bailiff. But in some of the states, the laws require that the distress should be made by a public officer, by virtue of a warrant issued by a magistrate.

If the distress be made without any authority from an officer, the lessor should properly authorize the bailiff to make the distress for him; for this purpose he should give him a written authority, or as it is usually called a warrant of distress; but a subsequent authority and recognition, given by the party for whose use the distress is made, is sufficient.(c)

Art. 2.-The form of seizing a distress.

2477. When the bailiff is provided with the requisite authority to make a distress, he should take the things subject to the distress, but he need not lay hands upon every individual chattel; upon entering the house, he may take hold of a chair, or any other thing, and declare that he seizes it in the name of all the goods within the dwelling. (d) He should declare

(a) Spencer v. McGowen, 13 Wend. 256; Hionely v. Wyatt, 1 Bay, 102; Reeves v. McKenzie, 1 Bailey, 497.

(b) Adams v. La Combe, 1 Dall. 440.

(c) Ham. N. P. 382.

(d) Dod v. Monger, 6 Mod. 215.

No. 2478.

Book 4, tit. 2, chap. 1, sec. 4, § 6, art. 3, 4.

No. 2479.

that he takes them as a distress, for the sum expressed in the warrant to be due by the tenant to the landlord, and that he takes them by virtue of such warrant, which warrant, if required, he ought to show ;(a) but although he does not declare the cause for which he takes the distress, yet it is not unlawful.(b)

Art. 3.-Of the quantity of goods to be taken.

2478. A distress should be made for the whole demand at one time, and the landlord should not harass the debtor with repeated distresses. By the whole demand is meant that which has accrued due at a day of payment, and not the gross amount of several sums, which have each become due at distinct days. For example, if rent is reserved quarterly, and remains unpaid for a whole year, the arrears of each quarter are distinct demands, and separate distresses may be made for each. (c) But the lessor is not bound to make separate distresses, as for rent due on different demises.(d)

When he distrains for the whole demand, but mistakes the value of the chattel taken, supposing it to be equal in value to the duty owing, when in fact it is not, he may distrain anew. In like manner he may

make a new distress when he could not find a sufficiency of goods at the time of making the first. (e)

Art. 4.-Of proceedings after the seizure.

2479. After the goods are seized the distrainor has several duties to perform, among these are:

1. To make an inventory of the goods distrained

(a) 1 Leon. 50.

(b) 45 Edw. III., E. 13, p. 19.

(c) 2 Edw. III.. M. 10, p. 32: Gilb. on Distr. 65.

(d) See Legg v. Strudwick, 2 Salk. 414; Birch v. Wright, 1 T. R. 380. (e) Bradb. on Distr.; Gilb. on Distr. 64.

No. 2480.

Book 4, tit. 2, chap. 1, sec. 4, § 7.

No. 2480.

upon, a copy of which should be delivered to the lessee, together with a notice of taking of such distress, with a statement of the cause of taking the

same.

2. The distrainor may leave or impound the distress on the premises for the time allowed by statute, but he becomes a trespasser afterward. As in many cases it is desirable for the sake of the tenant that the goods should not be sold as soon as the law permits, it is usual for him to sign an agreement or consent to their remaining on the premises for a longer time, in the custody of the distrainor or of a person appointed by him for that purpose.

3. While in his possession the distrainor has no right to use or work the cattle distrained, unless it be for the owner's benefit, as to milk a cow, or the like.(a)

4. Before the goods are sold they must be appraised by such persons as the statute of the state directs, in the manner pointed out by the act.

5. The next requisite is to give a lawful notice of the time and place of sale of the things distrained; after which, if they have not been replevied, they may be sold by the proper officer, who may apply the proceeds to the payment and satisfaction of the rent, and the expenses of the distress, appraisement and sale. The overplus, if any, is to be returned to the tenant.

§ 7. Of the effects of a distress.

2480. When a distress is made the rent is satisfied to the value of the goods, unless they are returned to the lessee by mutual consent. And in case there has been a forfeiture of a lease, and rent has accrued since, a distress for such rent will be a waiver of the forfeiture.

(a) 5 Dane's Ab. 34.