CHAP. VII. If the rent charge is in arrear forty days, and there is not a sufficient distress on the premises, the party entitled thereto may enter (l). For tithe rent charge. Although these half-yearly payments are denominated rent charges, yet, it appears, that where the land is occupied by Quakers, the distress may be not only on the land out of which the rent issues, but also on their goods and effects, wheresoever they may be found (m); and in all cases the rent charge payable under the provisions of the act, when in arrear, may be distrained for upon every part of the land situate in the parish in which such rent charge shall be so in arrear, and which shall be occupied by the same person who occupies the lands charged with the rent, whether such land is occupied by the person occupying the same, as owner, or as tenant to the same landlord under whom he occupies the land on which the rent is charged (n). In the case of Quakers it is not necessary to impound the goods distrained for the rent charge, but they must be sold at once, the 84th section being, in its terms, compulsory. There is also a further peculiarity in the method of conducting a distress for this kind of rent charge, where it is payable in respect of the occupation of Lammas lands and commons in gross. By the statute 2 & 3 Vict. c. 62, s. 13, which recites that large tracts of land called Lammas lands are in the occupation of certain persons during a portion of the year only, and are liable to the tithes of the produce of the said lands increasing and growing thereon during such occupation, and at other portions of the year are in the occupation of other persons, and in their hands liable to different kinds of tithes arising from the agistment, produce, or increase of cattle or stock thereon; and, by reason of such change of occupation, such last mentioned tithes cannot be commuted for a rent (1) 6 & 7 Will. 4, c. 71, s. 82; In re Camberwell Rent Charge, 4 Q. B. Rep. 151. (m) Ibid. s. 84. For tithe rent charge. charge issuing out of or fixed upon the said lands, CHAP. VII. and the recited acts are thereby rendered inoperative in the several parishes where such Lammas lands lie; and also that the said acts are in like manner inoperative in certain cases where a personal right of commonage, or a right of common in gross, is vested in certain persons by reason of inhabitancy or occupation in the parish where any common may lie, or by custom, or vicinage, but without having such right of common so annexed or appurtenant to, or arising out, or in respect of any lands on which any rent charge could be fixed, instead of the tithes of cattle, or stock, or their produce, increase, or agistment, on such common, annexed to such personal right; it is enacted "that in every case where by reason of the peculiar tenure of such lands, and the change during the year of the occupiers thereof, or of such right of commonage, a rent charge cannot, in the judgment of the said commissioners, be fixed on the said lands in respect of cattle and stock received and fed thereon, or of the produce and increase of such cattle and stock, at such portion of the year as the said lands are thrown open, or where such right of commonage alone exists, it shall be lawful for the parties interested in such lands or commons and the tithes thereof in the case of a parochial agreement, or for the commissioners in the case of a compulsory award, in every such parochial agreement or award respectively, or by any supplemental agreement in the nature of a parochial agreement, or by a supplemental award, as the case may be, where any parochial agreement or award has been already made, to fix a rent charge instead of the tithes of such Lammas lands or commons to be paid during the separate occupation thereof by the separate occupiers, in like manner as other rent charges are fixed by the said acts or any of them, and to declare in such agreement or award, or supplemental agreement or award, as the case may be, such a sum or rate per head of cattle or stock turned For tithe rent charge. CHAP. VII. on to such Lammas lands or commons by the parties entitled to the occupation thereof after the same shall have been so thrown open, or by the parties entitled to such right of commonage as aforesaid; and every such sum shall be ascertained and fixed upon a calculation of the tithes received in respect of such last mentioned occupation or right for the period and according to the provisions for fixing rent charges in the said recited acts, and shall be due and payable by the owner of such cattle or stock on the same being first turned on such lands or commons, and shall be recoverable by the persons entitled thereto by distress and impounding of the cattle or stock in respect of which such sum shall be due, in like manner as cattle are distrained and impounded for rent, and be subject to the same provisions as to distress and replevin of the same as are by law provided in cases of distress for rent; provided always, that nothing herein contained shall extend to Lammas lands where no tithes or payments instead of tithes have been taken during the seven years ending at Christmas, 1835, in respect of the cattle or stock received and fed thereon, or of the produce and increase of such cattle or stock at such portion of the year as the said lands are thrown open." Damage feasant. This enactment has been extended by more recent statutes (o), which it is not necessary to notice in this place except by a general reference to the statutes themselves. A distress may also be made of things damage feasant, for if cattle or other things are on a man's land incumbering it, or otherwise doing damage there, he may seize them, and retain them impounded as a pledge for the redress of the injury he has sustained (p). This remedy may be adopted by the owner of the soil (q), or by him who is merely a grantee vesturæ (0) 3 Vict. c. 15, s. 15; 5 & 6 Vict. c. 54. (p) Fleta, 101, s. 25; 51 Hen. 3, st. 4. Damage feasant. terræ (r). If a stranger who has no right puts his cattle CHAP. VII. on a common the lord or the commoners may distrain them damage feasant (s); and if a commoner surcharges the common, the lord may distrain the extra beasts (†). On the other hand, if cattle be agisted by the lord, and improperly put upon the common, the commoners may distrain them as the cattle of a stranger (u). If cattle be put into a man's pasture with his permission, and afterwards he gives notice to the owner that he will keep them no longer, he may distrain them as damage feasant if they be not removed (x). It is to be observed that if cattle trespass on a man's land, through his own or his tenant's neglect in not repairing the fences, they cannot be distrained damage feasant, unless the owner of the cattle suffers them to remain on the land an unreasonable time after notice (y). The only other exception to the rule, that every thing animate or inanimate may be distrained damage feasant, is that things in actual use cannot be distrained, as a horse on which a man is riding, or a net in a man's hand (*), and this for the preservation of the peace (a). Each beast can be seized for damage done by itself only, and not for the general damage done by others; and if the distress is not made at the time the damage is done, it cannot be made afterwards (b). For every new (r) Burt v. Moore, 5 T. R. 329. (s) Cheesman v. Hardham, 1 B. & A. 706; Ricketts v. Salway, 2 B. & A. 360; vide supra, Chap. VI. p. 179. (t) Bowen v. Jenkin, 6 A. & E. 911. (u) 30 Edw. 3, c. 27. (x) Noy's Maxims, 33. (y) 2 Saund. 285 b, n. 4; vide supra, p. 240. (z) Hoskins v. Robins, 2 Saund. 328; Storey v. Robinson, 6 T. R. 138; Field v. Adames, 12 A. & E. 649. (a) Vide supra, p. 241; Simpson v. Hartopp, Willes, 512; Bunch v. Kennington, 1 Q. B. Rep. 679. (b) Vaspor v. Edwards, 12 Mod. 660. Damage feasant. CHAP. VII. injury, however, cattle may be distrained, even though they have been replevied after the prior distress. The distress damage feasant differs from a distress for rent, in that it may be made by night as well as by day; this is allowed lest the beasts should escape before they are taken (c). It cannot be lawfully made after a tender of amends, nor can it be detained if a tender of amends is made after the seizure and before the impounding. After it has been impounded the tender will be too late to make either the seizure or impounding unlawful (d). The tender should be made to the owner of the land himself, unless it can be shown that the agent employed to distrain has also authority to receive compensation for the injury done (e). The remedy by distress may be inadequate where the injury is considerable; and in such a case the party injured should waive his right to distrain, and maintain an action of trespass against the owner of the cattle, &c. He must however in all cases elect which remedy he will pursue, for by distraining he waives his right of action. The rule "nemo debet bis vexari pro eâdem causâ” is applicable, unless indeed the things distrained are rescued, or escape out of or die in the pound, through no default or neglect of the distrainer (ƒ). (c) Co. Litt. 142. (d) Sheriff v. James, 1 Bing. 341; vide supra, p. 224. v. Powell, 4 Bing. 230. (f) Williams v. Price, 3 B. & Ad. 695; Bull. N. P. 84. |