to the defendant (an infant) for a special purpose, and the defendant refused to re-deliver them; it was holden, that the evidence supported the declaration. If the action be brought for several articles*, it is not necessary to set forth the separate value of each in the declaration; it is sufficient if the jury sever the values by their verdict. The plaintiff must prove the detainer of the goods precisely as laid in the declaration. Hence, in detinue for a bond for 1007. upon bailment, if defendant plead, that he did not receive a bond for such and it is found that he received a bond for a greater sum, there must be a verdict for the defendant; because the bond is not the same as that which the plaintiff demands. The general issue in this action is non detinet, or that the defendant does not detain the goods in question. Upon this issue, the defendant cannot give in evidence, that the goods were pawned to him for money which has not been paid, for such matter ought to be pleaded specially; but he may give in evidence a gift from the plaintiff; for this proves, that he does not detain the plaintiff's goods. III. Of the Judgment. THE form of the judgment in this action is, that the plaintiff do recover the goods in question, or the value thereof, if the plaintiff cannot have the goods, and his damages; that is, damages for the detention (6). The language of the judgment being in the alternative, that the plaintiff do recover the goods, or the value thereof, it is incumbent on the jury to find the value (7), and an omission in this respect cannot be supplied by a writ of inquiry of damages ». x Pawly v. Holly, 2 Bl. R. 853. a Townsend's 1st. Book of Judgments, b Per Coke, in Cheyney's case, 10 Rep. 119. b. recognized by Holt, C. J. in Herbert v. Waters, Salk. 206. where he said, that he thought that a contrary determination in Burton v. Robinson, Sir T. Raym. 124. and 1 Sid. 246. was not law. (6) The judgment in trover is, "that the plaintiff do recover his damages." Knight v. Bourne, Cro. Eliz. 116. (7) If several things are demanded, the jury ought to find the value of each particular thing. East. T. 3 H. 6. 43. a, CHAP. XVII. DISTRESS. I. Of the Nature and Origin of a Distress. II. Of the Causes for which a Distress may be taken. III. Of the Things which may, and the Things which may not be distrained.. V. Of the Time at which a Distress may be taken. VI. Of the Place where a Distress may be taken. VII. The Manner of disposing of Distresses, and herein of the Sale of Distresses for Rent Arrear. VIII. Of Pound Breach and Rescous. IX. Of abusing the Distress, and of Irregularity in the Proceedings by the Party distraining. I. Of the Nature and Origin of a Distress. THE power of distraining was given to the lord (in lieu of the forfeiture of the land) for the purpose of enforcing the tenant to perform those services, which were the consideration of his enjoyment of the land. Hence the distress was considered merely as a pledge, and the detention thereof was justifiable only so long as the duties incident to the tenure remained undischarged. If the tenant offered gages and pledges for the performance of the services, and the lord, after such offer, persisted in detaining the distress, the tenant might sue out a writ of replevin, the tenor of which was, that the defendant had taken and unjustly detained the goods," against gages and pledges." This form is still preserved in the proceedings in replevin, but the offer of gages and pledges has fallen into disuse. The replevin was considered as so much a matter of right, that if a person by deed granted a rent with a clause of distress, and granted further, that the distresses taken should be irreplevisable, yet they might be replevied," such a restriction being against the nature of a distress. Goods distrained are not liable to distress of another subject because in custody of the law; nor to another subject's execution. II. Of the Causes for which a Distress may be taken. 1. At common Law.-A distress may be taken for the nonperformance of services, either certain or such as may be reduced to certainty, viz. heriot-service, rent-service, suitservice, that is, suit to a hundred court, or court baron; for non-payment of a fine imposed on an inhabitant of a manor, by the steward of a court leet, for refusing to take the customary oath, when elected to the office of a constable; for non-payment of an amerciament in a court leet, for a nuisance, or for an offence done in court; lastly, at common law, goods or cattle damage feasant may be distrained'. 2. By Prescription.-By prescription, a distress may be taken for an amerciament in a court baron; for a penalty imposed for a breach of a bye-law"; for a toll in a fair° (1). 3. By Statute. It would be an endless task to enumerate all the statutes which give a remedy by distress: the following, however, cannot be passed over in silence : By stat. 4 Geo. 2. c. 28. s. 5. "Every person, body poli"tic and corporate, may have the like remedy by distress, "and by impounding and selling the same, in cases of rentseck (2), rents of assize, and chief rents, which have been a 1 Inst. 145. b. h8 Co. 41. a. b Bro. Distr. 75. cited by Ld. C. B. i Prat v. Stearn, Cro. Jac. 382. Parker, 2 Ves. 294. c Bro. 28. Finch, 11. d 1 Inst. 96. a. e 1 Rol. Abr. 665. 1. 47. Plowd. 96. f Litt. seç. 213. g1 Rol. Abr. 665. l. 40. k 1 Rol. Abr. 666. 1. 1. m 1 Rol. Abr. 666. 1. 6. n Dyer, 321. b. 322. a. pl. 23. o 1 Rol. Abr. 666. 1. 10. 15. (1) A distress may be taken, where the custom warrants it, for an amerciament, or fine imposed by the steward of a court baron. Co. Ent. tit. Replevin, pl. i. (2) N. There cannot be a rent-seck issuing out of a term for 66 duly answered or paid, for the space of three years, within "the space of twenty years before the 23d day of January, "1731, or shall be thereafter created, as in case of rent re"served upon lease." In Bradbury v. Wright, Doug. 624. the court were of opinion, that a rent reserved on a grant in fee (3), made after the statute of quia emptores, and before the 4 Geo. 2. c. 28. was in its nature a rent-seck, and that it could not be distrained for, except under the preceding statute; in which case the distrainor, in his avowry, ought to have alleged, that the rent had been duly answered or paid, for the space of three years, within the space of twenty years, before the first day of the session of parliament in which this statute was made. By stat. 11 Geo. 2. c. 19. s. 18. "Landlords may distrain "for double rent, upon tenants who do not deliver up pos"session after having given notice of their intention to quit, "during all the time such tenants continue in possession." Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had for such rents in a court of equity P. p Per Comyns, B. Exch. Trin. 5 and 6 Geo. 2. MSS. years. Hence, if a lessee for years assign his term, reserving to himself a rent, he cannot enforce the payment of such rent by distress; because a rent so reserved was not distrainable for at common law, and not being a rent-seck, it cannot be distrained for under the operation of this statute. - v. Cooper, C. B. 2 Wils. 375.; but in such case an action of debt is maintainable, Newcomb v. Harvey, Carth. 161. (3) A rent of this kind prior to the statute of quia emptores, would have been properly denominated a fee-farm rent. The word fee-farm imports every rent or service, whatever the quantum may be, which is reserved on a grant in fee. It is not properly appli cable to any rents, except rent-service. Hence, since the statute of quia emptores, the granting in the fee-farm, except by the king, is become impracticable; for, by the operation of that statute, the grantor parting with the fee is without any reversion, and without a reversion there cannot be a rent-service. But a grant in fee, reserving a perpetual rent, with a power of distress, will be as good as a rent-charge t. And it seems, that if such a rent were created at this day, without a power of distress, as it must be considered as a rent-seck, it would be distrainable for under the before-mentioned statute, 4 G. 2. c. 28. s. 5. Litt sec. 216. + Harg 1 last. 143. b. n. 5. 111. Of the Things which may, and the Things which may not, be distrained. 1. For Rent Arrear.-IT may be laid down as a general. proposition, that all moveable chattels of the tenant may be. distrained for rent arrear, if they are found upon the land de mised P. If the cattle of a stranger are trespassers on the land of the tenant, the lord may distrain them, although the stranger make fresh suit, and although the cattle be not levant and couchant'. But if the cattle of their own accord leave the land, the lord cannot distrain them'. So a lessor cannot distrain a stranger's cattle which escape from a close belonging to a stranger, into the land where the rent issues, through defect of fences, which either the lessor or his tenant" was bound to repair (4). If the estate of tenant at will be determined either by his own death *, or by the act of the landlord, he or his executors may reap the corn sown by him. And therefore, such corn, though purchased by another person, cannot be distrained (in case of the death of the tenant at will) for rent due from a subsequent tenant. With respect to those things which by law are privileged p Com. Dig. Distress, B. 1. and 4 T. R. 567. S. P. per Ld. Kenyon, C. J. in Gorton v. Falkuer. q 7 H. 7.1.b. 2. a. r 15 H. 7. 17. b. s 11 H. 7. 4. a. t 2 Leon. 7. u Dyer, 317. b. 318. a. x Eaton v. Southby, Willes, 131. (4) "There is a difference between a lord distraining within his seignory, and a landlord distraining for rent reserved on his own lease; for the lord has nothing to do with the land or the fences, and so it is not material to him whether the fences are repaired or not; but it is otherwise of a landlord; for he himself ought to re pair, or to provide that his tenant repairs them, else he would take advantage of his own wrong. And this diversity seems to be warranted by the books, Dy. 317, 318. 22 Edw. 4. 49 b. 7 H. 7. 1. 10 H. 7. 21. 15 H. 7. 17. But if the cattle escape into the land without any defect of the fences, or where the tenant of the land in which they are distrained, is not bound to repair the fences, through the defect of which the cattle escape and are distrained, it is immaterial to the lord or landlord, whether they are levant or couchant or not." Per Saunders, in Pole v. Longueville, 2 Saund. 289. See also Kemp v. Cruwes, 2 Lutw. 1580. TT |