CHAPTER VII. DISTRESS. Definition of Distress. How made. Distress for Tithe Rent Charge. Definition. Of the remedies afforded by law to enable a landlord to CHAP. VII. recover his rent, one of the most important is that by distress, which has been defined to be the taking of a personal chattel from the possession of a wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed. It is remarked by Lord C. B. Gilbert (a) that anciently the not paying attendance on the lord's courts, or not doing the feudal service, was punished with the forfeiture of the estate; but that these feudal forfeitures were afterwards turned into distresses, according to the pignorary method of the civil law; by which the creditor was allowed, in some cases, to sell a part of the pledges which he held as security for his debt. The thing itself taken, as well as the process by which it is taken, is called a distress. Originally the power of distress was not so much a remedy as the means of obtaining a remedy; for when exercised, the chattels remained only as a pledge in the (a) Gilb. on Rents, 3, 5. Distress. CHAP. VII. hands of the party making the distress, and could not be sold, so that if the owner continued obstinate and would make no satisfaction, it was no remedy at all to the distrainer. This limited power became the means of great oppression in the hands of the powerful barons, and many enactments of the legislature were passed for the purpose of protecting tenants (b). When, however, the independence and power of the tenants in opposition to their landlords had increased, it was found necessary to pass several legislative enactments for the protection of the landlords (c). By whom made. The power of distraining may be either by common right, as, where a person seised in fee grants out a lesser estate, with the reversion to himself, and a reservation of rent or other services, the law gives him this remedy for such rent or services without any express provision: or by special powers, as where one, not being reversioner, and consequently not able to distrain of common right, on granting a lease, reserves to himself the right of distraining by an express stipulation (d). This power is now, by stat. 4 Geo. 2, c. 28, made incident to all rents alike, except to a fee farm rent, to which it has been held not to be incident, unless the case be brought within the statute (e). To entitle a person to distrain for rent he must necessarily have the reversion in himself, unless indeed his right to make a distress arises out of a contract with the tenant, as in the case of a rent charge (ƒ), or as where a mortgagor has demised the premises after having conveyed the legal estate therein to the mortgagee (g). (b) Magna Charta, X.; 51 Hen. 3; Stat. Marleb. c. 4; Stat. Westm. c. 18; 13 Edwd. 1, c. 36, 37; 1 & 2 P. & Mary, c. 12. (c) 2 W. & M. c. 5; 11 Geo. 2, c. 19. (d) Bac. Abr. 196. (e) Bradbury v. Wright, 2 Dougl. 624; vide supra, p. 203. (f) Pascoe v. Puscoe, 3 Bing. N. C. 898; Lit. 252. (g) Alchorne v. Gomme, 2 Bing. 54. By whom made. And, therefore, if a landlord has parted with the rever- CHAP. VII. sion in the premises out of which the rent issues, he cannot distrain (h). He must formerly have continued to be seised or possessed of the same reversion to which the rent was incident; and if that reversion was a term of years which had expired, or had been assigned, he could not afterwards distrain (i). It has, however, been recently enacted (k) "that when a reversion expectant on a lease shall be surrendered or merge, the estate which shall for the time being confer, as against the tenant under the same lease, the next vested right to the same tenements and hereditaments, shall, to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease." A tenant in tail has a reversion on all leases, whether made conformably to the statute 32 Hen. 8, or not, and may therefore distrain (1). A tenant from year to year, who underlets from year to year, has a reversion which enables him to distrain (m). There must also be an actual demise existing to entitle the landlord to distrain. Thus, where a tenant holds over after the expiration of a notice to quit, and nothing is done to create a new tenancy or to waive the notice to quit, the landlord cannot distrain as for rent accruing due after the time when the notice expired (n); nor can (h) Parmenter v. Webber, 8 Taunt. 593. (i) Preece v. Corrie, 5 Bing. 24; Burn v. Richardson, 4 Taunt. 720. (k) 8 & 9 Vict. c. 106, s. 9; et vide supra, p. 142. (1) Exparte Smyth, 1 Swanst. 346, n.; et vide supra, p. 9. (m) Curtis v. Wheeler, M. & M. 493. (n) Alford v. Vickery, 1 Car. & M. 280; Zouch d. Ward v. Willingale, 1 H. Bl. 311; et vide supra, p. 107. CHAP. VII, the landlord distrain after he has treated the tenant as a trespasser (o). The landlord's right to distrain is not extinguished or suspended by his accepting a promissory note for the rent in arrear (p), or by his entering into an agreement with the tenant to take interest on the rent in arrear (q); but by an agreement not to distrain, either express or implied, the right may be extinguished or suspended (r). A tender upon the land before the distress extinguishes the right to distrain, but the tender must be actually made, and the mere attending upon the land to pay the rent will not be sufficient to destroy the landlord's right (s). A tender after the distress has been made and before impounding does not render the distress illegal, but extinguishes the landlord's right to detain the goods seized (t). The tender should be to the landlord himself, and not to the broker or bailiff, unless the broker or bailiff has authority from the landlord to receive (u). A tender after the distress is impounded is too late (x). The person claiming the right to distrain may be one of several joint tenants, coparceners, or tenants in comIn the case of joint tenants, one may distrain alone, and avow in his own right, and make cognizance mon. (0) Bridges v. Smyth, 5 Bing. 410; Doe d. Holmes v. Darley, 8 Taunt. 538. (p) Harris v. Shepway, Bull. N. P. 182; Davies v. Gyde, 2 A. & E. 623. (q) Sherry v. Preston, 2 Chitt. 245. (r) Davies v. Gyde, 2 A. & E. 623; Horsford v. Webster, 1 Cr. M. & R. 696; 2 Saund. 290, n. 7; Bramstone v. Robins, 4 Bing. 11. (s) i Lord Raym. 609. (t) Vertue v. Beasley, 1 M. & Rob. 21. (u) Smith v. Goodwin, 4 B. & Ad. 413; Pilkington's case, 5 Co. Rep. 76; Browne v. Powell, 4 Bing. 230. (x) Ladd v. Thomas, 12 A. & E. 117; Ellis v. Taylor, 8 M. & W. 415; Thomas v. Harries, 1 M. & Gr. 695. By whom made. &c. as bailiff to the others (y); and he may sign a warrant CHAP. VII. of distress and appoint a bailiff to distrain for the entire rent, unless the other joint tenants expressly dissent: if upon application the other joint tenants merely decline Joint tenants, to authorize the distress, this will not amount to a dissent (z). And so it is with coparceners before partition (a). One of several coparceners cannot however distrain for a share only before partition (b); but after partition coparceners may of common right make several distresses, and their grantees have the same power (c). A rent charge may, however, be divided between coparceners, and the tenant of the land thus be subjected to several distresses (d). Where land is held in coparcenary, and one of the coparceners is entitled to a rent charged thereon, no distress can be made for the rent charge before partition; for until partition has been made, each coparcener is seised per my et per tout in the land (e). Coheirs in gavelkind are parceners by custom, and have the same right of distress that parceners at common law have (ƒ). Tenants in common are entitled to distrain severally, each for his respective share of the rent, and no more (g). They may, however, join in making the distress, but then they must avow separately (h); unless the rent be indivisible, as a horse, a hawk, and so forth (i). If one of two tenants in common gives notice (y) Pullen v. Palmer, 5 Mod. 73, 150. (z) Robinson v. Hoffman, 4 Bing. 565. (a) Leigh v. Shephard, 2 B. & B. 465. (b) Stedman v. Page, 5 Mod. 141. (c) Butler and Baker's case, 3 Co. Rep. 22 b. (d) Rivis v. Watson, 5 M. & W. 255; Co. Lit. 164 b. (e) Bro. Abr." Distress." pl. 38, 65. (f) Leigh v. Shephard, 2 B. & B. 468. (g) Harrison v. Barnby, 5 T. R. 246. (h) Whitley v. Robert, M'Clel. & Y. 107; Pullen v. Palmer, 3 Salk. 207. (i) Co. Lit. 197 a; Lit. s. 314, 317. |