not distrain for such rent arrear at common law; because he has not any reversion; nor can he distrain for it under stat. 4 Geo. 2. c. 28. s. 5. as a rent-seck; because a rent-seck cannot issue out of a term for years: but he may maintain an action of debt.

V. Of the Time at which a Distress may

be taken.

As rent is not due until the last minute of the natural day, on which it is reserved, it follows, that a distress for rent arrear cannot be made on that day (10). Hence, at common law, if a lease was made at Michaelmas, for a year, reserving rent on the feasts of the Annunciation and St. Michael the Archangel, the lessor was deprived of his remedy by distress for the rent due at Michaelmas; because he could not distrain after the expiration of the term. But now by stat. 8 Ann. c. 14. s. 6. “ Any person, having any rent in arrear upon any lease for life or lives, or for years or at will, may "distrain for such arrears after the determination of the "lease: provided such distress be made within six calendar "months after the determination of such lease, and during "the continuance of such landlord's title or interest, and "during the possession of the tenant from whom such ar46 rears became due."

Although this proviso is in terms confined to the possession of the tenant', yet it has been holden, that where the tenant dies before the term expires, and his personal representative continues in possession during the remainder, and after the expiration, of the term, the landlord may distrain within six calendar months after the end of the term for rent due for the whole term.

d

In Lewis v. Harris, 1 H. Bl. 7. n. a. it was holden by Skyn

— v. Cooper, 2 Wils. 375.

e Newcomb v. Harvey, Carth. 161, 2.

f Duppa v. Mayo, 1 Saund. 282.

g 1 Inst. 47. b,

(10) "One cannot distrain the same day the rent grows due, but it must be the day after." 21 H, 6. 40. Vid. 14. H. 4. 31. Sir M. Hale, MSS. cited by Mr. Hargrave, 1 Inst. 47. b. n. 6.

ner, C. B. that the term was continued by the custom of the country, for the purpose of giving a right to the landlord to distrain on the premises in which the way-going crop remained. See also Beavan v. Delahay, 1 H. Bl. 5. S. P.

It may be observed, that a distress for rent arrear can be taken only during the day-time (11); but cattle damage feasant may be distrained not only in the day-time, but during the night also; otherwise they might escape.

VI. Of the Place where a Distress may be taken.

A DISTRESS for rent-service may be taken in any part of the land holden.

So for a rent charged or reserved upon a lease upon any part of the land out of which the rent issues. And if a house be upon the land demised or charged', a distress may be taken in the house, if the outer door be open (12).11 Rol. Abr. 671. 1. 5.

k 1 Inst. 142. a.

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(11) Before sun-rising or after sun-set, no man may distrain but for damage feasant." Mirrour, c. 2. s. 26. See also 7 Rep. 7. a. that a distress for rent or service cannot be taken in the night.

(12) A distress may be in a house through the doors or windows. Com. Dig. tit. Distress. (A. 3.) "If an outward door be open, an inner door may be broken in order to take a distress," per Lord Hardwicke, C. J. in Browning v. Dann and others, Ca. Temp. Hardw. 168. "But a padlock put on a barn door cannot be opened by force for the purpose of distraining the corn." per Lord Hardwicke, C. J. N. Gates or inclosures cannot be broken open or thrown down to take a distress. 1 Inst. 161. a. By stat. 11 G. 2. . 19. s. 7. Any place, in which goods or chattels, fraudulently "or clandestinely conveyed away, are locked up or secured, so as to "prevent the same from being taken as a distress for rent arrear, may be broken open and entered in the day-time by the party "distraining; first calling to his assistance the constable or other peace officer of the place, where the goods are suspected to be "concealed; and in case of a dwelling house, oath being first made "before a justice of the peace of a reasonable ground to suspect that such goods are therein; and the same may be taken and seized for the arrears of rent, as if they had been in an open "place."

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For a rent-service or rent-charge issuing out of the land, which lies in different counties, a distress for the whole may be taken in one county". So if a rent-charge issue out of land in the possession of many tenants, a distress may be taken upon the possession of one for the whole rent, for it issues out of each part". But where there are separate and distinct demises, there must be separate distresses on the several premises subject to the distinct rents, although the several premises are demised to the same tenant.

By stat. 11 Geo. 2. c. 19. s. 8. "The landlord may dis"train any cattle or stock of the tenant, depasturing on any "common appendant or appurtenant, or any ways belonging "to the premises demised."

If the lord come to distrain cattle which he sees then within his fee, and the tenant or any person, to prevent the lord from distraining, drive the cattle out of the lord's fee into some other place, yet may the lord freshly follow and distrain the cattle; for in judgment of law the distress will be considered as taken within his fee.

A different rule holds with respect to distresses for damage feasant ; for if the owner of the beasts chase them out of the soil, even with a view to evade the distress, yet the owner of the soil cannot distrain them; because the beasts must be damage feasant at the time of the distress.

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By stat. 11 Geo. 2. c. 19. s. 1. (13). If lessee for life, "Y. W. or otherwise, of lands or tenements, upon the de"mise whereof any rents are reserved, shall fraudulently or "clandestinely carry off his goods from such demised pre"mises, to prevent a distress, the lessor, or any empowered by him, may, within thirty days after carrying off, distrain "such goods, wherever found, for the rent arrear, and sell or dispose of the same, as if distrained on the premises; pro"vided, before the seizure, such goods have not been sold,

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m lb. l. 27. 30.

n1 Rol Abr. 671. 1. 33.

o Rogers v. Birkmire, Str. 1040.

p 1 Inst. 161. a.
q lb.

r S. 2. (14.)

(13) This section is copied from the second section of the fourteenth chapter of the 8th of Ann, and differs from it only as to the time allowed for the seizing the goods after the carrying off; the statute of Ann allowing only five, and this statute thirty days.

(14) This section is copied from the 3d of the 8 Ann, c. 14, with the exception of the words in italics.

"boni fide, and for a valuable consideration, to a person not "privy to the fraud."

This statute applies to the goods of the tenant only and not to the goods of a stranger'.

VII. The Manner of disposing of Distresses, and herein of the Sale of Distresses for Rent Arrear.

Ar the common law, the party distraining might have driven the distress from the place where it was taken, into any other place, even in a distant county. It is obvious, that the exercise of such a power must have been attended with great oppression; more especially, as the tenant was obliged to provide sustenance for his beasts, if they were impounded in an open pound; and the beasts being driven into a foreign county, the tenant must frequently have been at a loss where to make a replevin. A partial remedy for this evil was afforded by stat. 52 H. 3. c. 4. which prohibited all persons from driving the distress out of the county where it was taken. But the stat. 1 & 2 Phil. & Mary, c. 12. has given a further check to it. By the last-mentioned statute it is enacted," that no distress of cattle shall be driven out of "the hundred, rape, wapentake, or lath, where the distress "is taken, except it be to a pound overt within the same shire, not above three miles distant from the place where "the distress is taken; and no cattle or other goods distrained "for any manner of cause, at one time, shall be impounded "in several places, upon pain of forfeiting, to the party "grieved, one hundred shillings and treble damages."

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If the hundred, in which the cattle were distrained, be in one county, and the hundred into which they were driven be in another, the venue may be laid in either county".

Persons distraining for rent arrear may impound the distress in any convenient part of the land chargeable with the

rent.

The stat. 11 Geo. 2. c. 19. s. 8. which empowers the landlord to seize growing crops as a distress, authorizes him" to cut, gather, and lay up the same, when ripe, in barns or other proper place on the premises, if any; if not, then in

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Thornton v. Adams and others,

B. R. E. T. 56 Geo. 3. t2 Inst. 106.

u Pope v. Davis, 2 Taunt. 252.
x Stat. 11 G. 2. c. 19. s. 10.

"other barns or proper place, as near as may be to the pre"mises, notice thereof being given' to, or left at, the last place of abode of the tenant, within one week after the lodging of the distress."

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Sale of Distress for Rent Arrear.-At the common law, distresses for rent arrear could not be sold, but only detained as pledges for the enforcing the payment of such rent; but now, by the stat. 2 W. & M. sess. 1. c. 5. s. 2., it is enacted, "That, where any goods or chattels shall be distrained for "any rent (15) reserved and due upon any contract, and the "tenant or owner of the goods shall not within five (16) days next after such distress, and notice thereof, with the cause "of such taking (17) left at the chief mansion house (18), or "other most notorious place on the premises charged with the "rent, replevy the same, the person distraining may, with "the sheriff or under-sheriff of the county, or constable of "the hundred, parish, or place, where the distress is taken, cause the distress to be appraised by two sworn appraisers, "whom such sheriff, &c. shall swear to appraise them truly, " and after such appraisement, may sell the same towards "satisfaction of the rent, and the charges of the distress and appraisement, leaving the overplus, if any, in the hands of the sheriff, &c. for the owner's use."

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y $. 9.

(15) "This statute does not affect distresses damage feasant; consequently they remain, as they were at common law, mere pledges; and the sale of them will make the party distraining a trespasser ab initio." Per Lord Hardwicke, C. J. in Dorton v. Pickup, Sittings after M. T. 9 G. 2. MSS.

(16) The five days are reckoned inclusive of the day of sale. Wallace v. King, 1 H. Bl. 13.

(17) It is not necessary to set forth in the notice at what time the rent became due. Per Buller, J. in Moss v. Gallimore, Doug. 280.

(18) In Walter v. Rumbal, Ld. Raym. 53. it was holden, that notice to the tenant was good notice under this act, the sole object of the statute being, that the party should have notice; which object was more effectually attained by a notice given to the party himself, than by a notice left at the mansion house, or most noto❤ rious place on the premises.