PART I. BOOK III. in ejectment, for no man can license another to do an illegal act (a). The defendant, however, in such a case, will only be liable for the mesne profits for the time he was in possession (b). The action cannot be maintained against executors or administrators for the profits during the lifetime of the testator or intestate, and received by him (c); except, indeed, for the profits received within six calendar months before the death of the testator or intestate, and then only if the action for them be brought against the executor or administrator within six months after they have taken upon themselves the administration of his estate (d). Previously to 1 & 2 V. c. 110, the defendant might have been holden to bail on a judge's order, which was seldom refused. But, since that act, he cannot be holden to bail, unless it be shewn to the satisfaction of the judge that the mesne profits amount to twenty pounds or upwards, and that there is probable cause for believing that the defendant is about to quit England (e). 1 The defendant may plead the Statute of Limitations as to all the profits, excepting those which may have accrued within the last six years (f). But he cannot, it seems, plead a discharge under the Insolvent Act (g). Nor his bankruptcy, the demand being for unliquidated damages, which could not be. proved under the commission (h). He was not, previously to the 3&4 W. 4, c. 42, s. 21, allowed to pay money into court (i). If he were defendant also in the ejectment, he cannot dispute the title of the lessor of the plaintiff, from the day of the demise laid in the declaration (j). But where he is not concluded by the record in ejectment, he may controvert the plaintiff's title (k). And in a late case, where, in an action for mesne profits in the name of the casual ejector, the defendant pleaded that the premises were not the plaintiff's, it was held that he might give evidence of title in himself, though he had suffered judgment by default in the ejectment; for the estoppel, to be conclusive, should have appeared on the record (). The defendant cannot, under the general issue, give in evidence an acceptance by the plaintiff of the rent, and an agreement to waive the costs of the ejectment (m). If the action be brought in the name of the nominal plain. tiff, the court, upon application, will stay the proceedings until security be given for costs (n). The jury are not, in estimating the damages, confined to give the mere rent or annual value of the premises; but may give such extra damages as they may think fit, as a compensation for plaintiff's trouble, &c. (o). So, where the plaintiff has had a) 1 Chit. Pl. 6th ed. 195. (b) 1 Woodf. L. & T. 7th ed. 419: (c) See 1 Chit. Pl. 6th ed. 195. (i) Holdfast v. Morris, 2 Wils. 115. See as to payment of money into court gene rally, post, Book IV. Part I. Ch. 9. (3) See Adams on Eject. 333: Charfield v. Parker, 8 B. & C. 551, n. (a). (k) Rosc, on Evid. 499. (1) Doe v. Huddart, 2 C., M. & R. 16: and see Vooght v. Winch, 2 B. & Ald. (e) 1 & 2 V. c. 110, s. 3: Hunt v. 662. Hudson, Barnes, 85. See Vol. I. 497. (f) Bull. N. P. 88. (g) Lloyd v. Peel, 3 B. & Ald. 407. (m) Doe v. Leo, 4 Taunt. 459, (n) Bull. N.P. 89: Pike v. Corbin, Say. 78. (0) Goodtitle v. Tombs, 3 Wils, 121: Doe v. Hare, 2 C. & M. 145; 4 Tyr. 29, S. C. judgment against the casual ejector, he may recover his costs in this action, although not taxed, against the tenant or person last in possession (p); but if the ejectment were defended, and the taxed costs paid, the extra costs would not be recoverable (9). The plaintiff may recover, by way of damages, the costs incurred by him in a court of error, by reversing the judgment in ejectment erroneously obtained by the defendant (r). And the plaintiff is not restricted to the time stated in his denise in the declaration in ejectment, but may also recover the profits which accrued previously, if he had title to the premises at the time, and the defendant were in possession (s). The jury, however, are to give damages only for the time the defendant is proved to have been in actual possession(t), and since the plaintiff's title accrued.. And where an actual entry has been made to avoid a fine, as above mentioned, the jury can give damages only as to the profits accruing since the time of the entry (u). CHAP. I. SECT. 1. Ground-rent necessarily paid by the defendant while in pos- Mitigation of session should be deducted by the jury from the damages (x). Dainages. And where an action for mesne profits was brought against a party who had a cross claim against the plaintiff at law for money expended on the land, the court of Equity Exchequer granted an injunction to stay the proceedings at law (y). If the action. is brought pending a writ of error on the Action pendjudgment in ejectment, the plaintiff may proceed to judging Error. ment; but the court will stay execution until the writ of error is determined (~). : If the plaintiff recover less than 40s., he shall, in general, Costs. have no more costs than damages, unless the judge certify (a). as d In all other respects, the proceedings in this action are the Other Prosame as in ordinary cases. ceedings. CHAPTER II. REPLEVIN. SECT. 1. The Distress-788 to 792. BOOK III. PART I. How made. At what Time made. How made, &c., 788. SECT. 1. The Distress. Removal of the Goods, 789. How made.] A DISTRESS for rent (to which these few observations shall be confined) is made by entering upon the premises (a) and seizing any piece of furniture or chattel distrainable, saying, at the same time, that you seize that in the name of all the chattels upon the premises, to the value of the rent distrained for (b), and stating the cause of the distress particularly; and if the distress be made by virtue of any particular authority, let it be mentioned. Å landlord, however, may distrain not only upon the premises demised, but also the cattle or stock of his tenant depasturing on any common appendant or appurtenant, or any ways belonging to the same (c). The distress must not be made on a highway (d). It is made either by the landlord in person, or by some person deputed by him by warrant (e). The landlord cannot break open the outer door of a house to make a distress (f); nor can he break open or throw down gates or inclosures for that purpose (g). But if he have entered the house, he may, if necessary, break open an inner door, &c. (h). This distress must be made in the day-time (i). It may be made at any time during the term for which the premises are demised, or within six months after the determination thereof, provided the landlord's title and the tenant's possession continue at the time of the distress (j). (a) See 52 H. 3, c. 21; 2 Inst. 131; Mir. (b) Dod v. Monger, 6 Mod. 215: Swann (d) 52 Hen. 3, c. 51: Buszard v. Capel, (e) It need not be in writing, though it usually is so. See the form of the warrant, Chit. Forms, 413. The stat. Westm. 2. c. 37, which requires distresses to be made by brokers sworn and known, does not extend to distress for rent. (Child v. Chamberlain, 6 C. & P. 213). (f) Co. Lit. 161: Comb. 17: 9 Vin. Abr. 128: see Gould v. Bradstock, 4 Taunt. 562. (g) Co. Lit. 161. (h) Id.: Comb. 17: Browning v. Dann, Hardw. 168: Bull, Ñ. P. 81. (i) Mirror, c. 2, s. 26: Aidenburgh v Peaple, 6 C. & P. 212. (j) 8 A. c. 14, ss. 6, 7: 3 & 4 W. 4, c. 42, ss. 37, 38: see Burne v. Richardson, 4 Taunt. 720: Nuttall v. Staunton, 6 D. & Ry. 155; 4 B. & C. 51, S. C.. Chit. Col. Stat. 665. CHAP. II. SECT. 1. Notice. Inventory and Notice.] After seizure, an inventory should be taken of the distrainable goods upon the premises (k); copy it, and write at the foot of the copy a notice stating Inventory and the cause of the distress, and that unless the rent be paid within five days, the goods shall be appraised and sold (7); and leave this copy "at the chief mansion-house, or other most notorious place on the premises" (m), or serve it personally on the tenant (n). If you remove the goods, state in your notice the place to which you have removed them. Removal of the Goods.] The landlord may either remove the Removal of goods immediately, or he may allow them to remain on the the Goods. premises for five days inclusive of the day of the seizure, and a reasonable time afterwards, leaving a person there in the care and possession of them, to prevent them from being clandestinely removed. He cannot, however, leave them on the premises an unreasonable time longer than the time above mentioned, otherwise he will render himself liable to an action of trespass (o); unless he have the tenant's consent to do so; and tenants usually request this as an indulgence, in order that they may be enabled in the meantime to raise money for the payment of the rent, or have an opportunity to replevy the distress (p). Get the tenant to give you a written memorandum of his consent to your continuing in possession (q). By 2 W. & M. sess. 1, c. 5, s. 3, however, sheaves of corn, &c., when distrained, may be impounded on the premises, until appraised and sold. And by the 11 G. 2, c. 19, 8.8, when corn, grass, &c., growing is distrained, it may be laid up in barns or other proper places on the premises, and shall not be appraised or sold until it shall have been cut, gathered, cured, and made (r); if sold before that time, the sale is void, and the property in the corn is not thereby divested out of the tenant, or passed to the vendee (8). And, lastly, by the 11 G. 2, c. 19, s. 10, any goods, when distrained, may be impounded on the premises, and may there be appraised and sold, in like manner as the distrainer might have done before off the premises. where impounded. If you reinove the goods distrained, if they be household How and goods or other dead chattels, you must place them in a pound covert; that is, in some covered place of safety, where they may not be exposed to injury from the weather (t). But where cattle are distrained, they may be placed either in a pound overt or pound covert, at the option of the distrainer: if he place them in a pound covert, as in a stable or the like, he must feed and sustain them; but if in a pound overt, common or special, the owner must attend at his peril; and for that (k) See the form, Chit. Forms, 413 (7) Ib. (m) 2 W. & M sess. 1, c. 5, s. 2. (n) Walter v. Rumball, 1 Salk. 247; 1 L. Raym. 53, S. C. (6) Winterbourne v. Morgan, 11 East, 305: Griffin v. Scott, 1 Str. 717; 2 L. Raym. 1424, S. C.: Pitt v. Shew, 4 B. & Ald. 208: see Wallace v. King, 1 H. Bl. 13: Etherton v. Popplewell, 1 East, 139: 11 G. 2, c. 19, s. 19. (p) See Washburn v. Black, 11 East, 405, n. (a) Fisher v. Algar, 2 C. & P. 374. (q) See the form, Chit. Forms, 414. (r) See Peacock v. Purvis, 2 B. & B. 362; 5 Moore, 79, S. C.: Clark v. Gaskarth, 8 Taunt. 431; 2 Moore, 491, S. C.. Wright v. Dewes, 3 Nev. & M. 790; 1 A. & E. 641, S. C. (s) Owen v. Legh, 3 B. & Ald. 470: see Proudlove v. Twemlow, 1 C. & M. 326: Notts v. Curtis, 2 C. & J. 364, n.: Biggins v. Goode, Id. (t) Co. Lit. 47. BOOK TIT. Appraisement and Sale. When and how. purpose, if the distress be impounded in a special pound overt, notice thereof must be given to the owner(t). The distrainer is bound to see that the pound is in a fit and proper state to receive the distress; and is liable to make good to the owner any damage sustained by the cattle in consequence of its unfitness (u). By 52 Hen. 3, c. 4, a distress shall not be driven out of the county where it is taken(); and by 1 & 2 P. & M. c. 12, s. 1, a distress of cattle shall not be driven out of the hundred, rape, wapentake, or lathe, where it is taken, unless to a pound overt within the same shire, and not above three miles distant from the place where such distress was taken (w). 1 Appraisement and Sale.] By the 2 W. & M. sess. 1, c. 5, s. 2, if the owner of the goods distrained shall not, within five days next after such distress taken, and notice thereof left at the chief mansion-house, or other most notorious place on the premises, replevy the same; in such case the person distraining shall, with the sheriff or under-sheriff of the county, or with the constable of the hundred, parish, or place (x) where such distress shall be taken, cause the goods, &c., so distrained to be appraised by two sworn appraisers (whom such sheriff, under-sheriff, or constable shall swear to appraise the same truly, according to the best of their understanding); and, after such appraisement, shall sell the same for the best price that can be gotten for them, for satisfaction of the rent and charges of distress, appraisement, and sale; leaving the overplus (if any) with the sheriff, under-sheriff, or constable for the owner's use. Previous to this statute, a distress, even for rent, could not be sold. There must be two appraisers, even where the rent is under 207. (y). But the tenant may waive the necessity for the appraisement by two brokers in any case (z). Upon the sixth day, (inclusive of that on which the distress was made (a)), and after the lapse of five times twenty-four hours from the time of the original seizure (b), or within a reasonable time afterwards (c), search at the sheriff's office, if the goods have been replevied; if not (d), send for the constable of the hundred, parish, or place (e), where the distress was made, and also two sworn appraisers (f); the constable will then administer the usual oath to the appraisers (g), and indorse a memoran (t) Co. Lit. 47. But now, by 5 & 6 W. 4, (u) Wilder v. Speer, 3 Nev. & P. 536. (w) Gimbart v. Pelah, 2 Str. 1272. Bl. 14. (y) Allen v. Hicker, Q. B., 22nd June, 1839, on demurrer. See the previous cases of Fletcher v. Saunders, 6 C. & P. 747: Bishop v. Bryant, Id. 484. (2) Bishop v. Bryant, 6 C. & P. 484 (a) Wallace v. King, 1 H. BL. 13. (b) Harper v. Taswell, 6 C, & P. 166. (e) Pitt v. Shew, 4 B. & Ald. 208. (d) If they have been replevied, you cannot sell them, though the replevin was had after the five days. (Jacob v. King, 1 Marsh, 135: 5 Taunt. 451, S. C.) (e) He must not be the constable of another parish. (Avenell v. Croker, 1 M. & M. 172: Wallace v. King, 1 H. Bl. 13: and see Walter v. Rumbal, l L. Raym. 53; 1 Salk. 247, S. C.) (f) Not the person distraining; (see Westwood v. Cowne, 1 Stark. 172: Lon v. Weldon, 2 Bing. 337: 9 Moore, 629, S. C.); unless the tenant consent thereto. (Bisho v. Bryant, 6 C. & P. 484). (g) The constable must swear the sp praisers before the appraisement. (Kenney |