from distress, it may be observed that some are privileged absolutely, and some conditionally. In the first class may be numbered,

1. Animals, fera natura, whereof a valuable property is not in any person; as bucks, does, &c. Deer kept within an inclosure do not fall within this class, for they may be dis

trained.

2. Such things as cannot be restored to the owner in the same plight and condition as they were in at the time of taking them.

66

This exemption proceeds on the ground of the distress having been considered, at common law, merely as a pledge2; and, for this reason, sheaves and shocks of corn were not distrainable; but now, by stat. 2 W. & M. c. 5. s. 3. "sheaves or cocks of corn, or loose corn, and hay lying upon any "part of the land charged with the rent, may be seized, se"cured, and locked up in the place where found, in the nature of a distress, until replevied; but the same must not "be removed to the damage of the owner from such place." 3. Things fixed to the freehold as furnaces, cauldrons, the doors or windows of a house, or the like..

ઠંડ

At common law, corn growing could not be distrained, because it adhered to the freehold. But now, by stat. 11 G. 2. c. 19. s. 8. "Landlords, or their bailiffs, or other persons empowered by thein, may distrain corn, grass, or other pro"duct, growing on any part of the land demised."

66

4. Things delivered to a person exercising a trade or employment, to be carried, wrought, or manufactured in the way of his trade, are not distrainable, as cloth delivered to a tailor. So a horse standing in a smith's shop, for the purpose of being shod, or in a common inn (5), cannot be distrained, because it must be presumed that such things so found belong to strangers.

y Davies v. Powell, Willes, 47. z 1 Inst. 47. a.

a Wilson v. Ducket, 2 Mod. 61. bi Inst. 47. a.

c 1 Rol. Abr. 666. H. pl. 3.
di Inst. 47. a.

e Per Cur. in Gisbourn v. Hurst, Salk.
249.

(5) It seems, that the privilege of a common inn does not extend to a livery stable. See Francis v. Wyatt, 1 Bl. R. 483. and 3 Burr. 1498. where the question was, "whether a carriage standing in the yard of a livery stable was distrainable for rent due to the landlord from the keeper of the livery stable?" The case was twice argued; but the court appearing to be strongly inclined in favour of the dis

5. Goods distrained, damage feasant: for they are in the custody of the law (6).

Among those things which are privileged from distress, conditionally, may be numbered,

1. Beasts of the plough, which are exempt, if there be a sufficient distress besides on the land whence the rent issues (7).

2. Implements of trade, as a stocking frame, or a loom, if they are in actual use, and there is a sufficient distress besides.

3. Other things in actual use, as a horse whereon a person iş riding, or an ax in the hands of a person cutting wood, &c.

These two last instances of exemption proceed on this ground, that if in such cases a power of distress were given by law, the exercise of it would frequently lead to a breach of the peace.

With respect to those things which may be distrained damage feasant, it may be laid down as a general rule, that all chattels trespassing on the land may be distrained damage feasant.

The law, indeed, has extended this principle so far as to permit A. to distrain the cattle of B. damage feasant', in the close of A., although they were put there by a stranger, without the privity of B. It is to be observed, however, that a horse whereon a man is riding, cannot be distrained damage feasant"; for the same exemption is allowed here

f 1 Inst. 47. a.

g1 Inst. 47. a. b. 161. a.

h Simpson v. Hartopp, Willes, 512. Watts v. Davies, Scacc. H. 20 G. 3. MS. S. P.

i Gorton v. Falkner, 4 T. R. 565.

k 1 Inst. 47. a.

11 Rol. Abr. 665. 1. 25.

m Storey v. Robinson, 6 T. R. 138. per Denison, J. in Collins v. Renison, Say. R. 139.

tress, the owner of the carriage declined bringing the question to a third argument, which had been directed by the court.

(6) It seems that the same rule holds with respect to goods taken in execution, and for the same reason. Eaton v. Southby, Willes,

131.

(7) But beasts of the plough may be distrained for the poor rates, although there are other distrainable goods on the premises more thau sufficient to answer the value of the demand. Hutchins v. Chambers, 1 Burr. 579. This decision proceeded on the ground, that a seizure under the stat. 43 Eliz. c. 2., and similar acts, resembled a common law distress only in being replevisable; and that it was in other respects analogous to a common law execu tion, under which any goods of the debtor may be seized.

as in cases of distress for rent arrear, and for the same reason; lest by the permission of such distress a breach of the peace should ensue.

By stat. 7 Ann. c. 12. s. 3. it is enacted and declared, that process of distress against the goods of any ambassador or other public minister of a foreign state, or of their domestic servants, shall be void.

1. By Statute.-BY stat. 7 H. 8. c. 4. it is enacted", "That "the recoverors of manors, lands, and advowsons, their heirs, " and assigns, may distrain for rents, services, and customs, "due and unpaid, and make avowry and justify the same, " and have like remedy for recovering them as the recoverees might have done or had, although the recoverors were 66 never seised thereof."

By stat. 32 H. 8. c. 37. s. 1. "The personal representatives "of tenants in fee, tail, or for life, of rent-services, rentcharges, rents-seck, and fee-farms, may distrain for the arrears, upon the land charged with the payment, so long as "the lands continue in the seisin or possession of the tenant in demesne, who ought to have paid the rent or fee farm, or of some person claiming under him by purchase, gift, or "descent."

This statute provides a remedy where the testator dies seised of a rent to him and his heirs, or for life, and where by his death there was not any remedy for the executor at the common law; hence, executor of tenant for life of a rent-charge may distrain for rent arrear under this statute; but where the executor has remedy by the common law by action of debt, as in the case of an executor of tenant for years of a rent charge, if he live so long, this statute does not apply P. Neither does this statute extend to copyhold

rents.

By s. 3. "Husbands seised in right of their wives, in fee, "tail, or for life, of any rents or fee-farms, may distrain, "after the death of their wives, for arrears due in their life "time." And by s. 4. "Tenants pur auter vie, of rents and

p See 1 Inst. 104. b.

9 Hool v. Bell, 1 Ld. Raym. 172.

p Turner v. Lee, Cro. Car. 471.
q Appleton v. Doiley, Yelv. 135.

fee-farms, and their personal representatives, may distrain "on the land charged after the death of cestui que vie, for arrears due in the life time of cestui que vie."

46

A. seised in fee, let to the plaintiff for twenty-one years, and afterwards dying seised of the reversion, the defendant administered, and distrained for half a year's rent due to the intestate, for which he avowed. On demurrer to the avowry, it was objected, that there was not any privity of estate between the administrator and the lessor, and therefore the avowry, which is in the realty, could not be maintained by him. And it was observed, this was a case out of the stat. of 32 H. 8. c. 37. for that only gives a remedy by way of distress for rents of freehold, and of this opinion the court seemed (8). 1 Inst. 162. a. 4 Rep. 50. Cro. Car. 471. Latch. 211. Wade v. Marsh were cited.

One entitled to the separate herbage and feeding of a close', for a certain time, may distrain cattle belonging to the owner of the close, damage feasant there during that time.

If a terre-tenant, holding under two tenants in common', pay the whole rent to one, after notice from the other not to pay it, the tenant in common who gave the notice may distrain for his share.

One tenant in common may take a distress without his companions, and avow solely ".

Grant of rent to testator for years, with a clause of distress, that the grantee and his heirs may distrain. Adjudged, that the executor should distrain, and not the heir.

r Renvin v. Watkin, M. 5 G. 2. B. R. MSS.

s Burt v. Moore, 5 T. R. 329.

t Harrison v. Baruby, 5 T. R. 246. u Cro. Eliz. 530.

x Darrel v. Wilson, Cro. Eliz. 644.

(8) But in Powel v. Killick, Middlesex Sittings, M. 25 G. 2. where in trespass for entering plaintiff's house, and carrying away his goods, upon not guilty, defendant gave in evidence that he was executor of A., who was plaintiff's landlord of the house, and that he distrained for rent due to his testator at the time of his death; it was objected for plaintiff that executor was empowered to distrain only by virtue of the stat. 32 H. 8. c. 37., and that that statute extended to the executors and administrators of those persons only, to whom rent-services, rent-charges, rent-seck, or fee farms were due, and that the present case did not fall within either of those descriptions. But Lee, C. J. overruled the objection, and said, this was a rent-service, the testator being in his life-time seised in fee, and the plaintiff holding under a tenure which implied fealty. Serj. Hill's MSS. 14 D. 72. and Bull. N. P. 57. S. C.

A mortgagee after giving notice of the mortgage to the tenant in possession, under a lease prior to the mortgage, is entitled to such rent as shall be in arrear at the time of notice, and to the rent which accrues afterwards, and may distrain for the same after such notice.

If by a custom the lord is precluded from turning cattle on the common during a certain season of the year2, a commoner may distrain the lord's cattle which are turned on during that time.

Wherever there is a colour of right for turning cattle on a common, a commoner cannot distrain, because it would be judging for himself in a case which depends on a more competent inquiry. Hence, where the right of common was for two sheep for every acre of land in the possession of each commoner, it was holden, that one commoner could not distrain the sheep of another for a surcharge (9).

The general rule, however, that one commoner cannot distrain the cattle of another may be superseded by a special agreement: as, where A., being possessed of a quantity of land in a common field, and having a right of common over the whole field, and B. having also a right of common over the whole field, they entered into an agreement, for their mutual advantage and convenience, not to exercise their respective rights for a certain term of years, and each party covenanted to that effect. During the term the cattle of B. came upon the land of A., it was holden, that A. might distrain them damage feasant; for, by the operation of the agreement, B. stood in the situation of a stranger with regard to A.

A tenant holding over after the expiration of his term, cannot distrain the landlord's cattle, which were put on the land by the landlord for the purpose of taking possession. Lessee for years assigns his term, reserving a rent, he can

y Moss v. Gallimore, Doug. 278.
z 1 Roll. Abr. 405. 406. (A.) pl. 6.
a Hall v. Harding, 4 Burr. 2426.

b Whiteman v. King, 2 H. Bl. 4. c Taunton v. Costar, 7 T. R. 431.

(9) But where cattle are turned on the common without any colour or pretence of right, a commoner may distrain them. Admitted in Hall v. Harding, 4 Burr. 2426. It was said by Bathurst, J. and not denied by the rest of the court, that if a man who has a right of common upon the lord's waste, for cattle levant and couchant on his land, surcharge the common, the lord cannot for that cause distrain, for the lord cannot judge thereof. Anon. 3 Wils. 126.